Rice v. McDonald

         Appeal from the Superior Court No. 4FA-14-03084 CI of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.

          Jessie C. Rice, pro se, Anchorage, Appellant.

          Notice of nonparticipation filed by Jason F. Doxey, Burglin & Doxey, PC, Fairbanks, for Appellee John C. McDonald. No appearance by Appellee Charles Rice.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          BOLGER, Justice.

         I. INTRODUCTION

         The father of three Indian children killed their mother. After the father's arrest, the father's relatives moved the children from Alaska to Texas and gained custody of the children through a Texas district court order. The mother's sister filed a separate action against the father in Alaska superior court, seeking custody of the children and challenging the Texas order. Although Alaska had exclusive jurisdiction to make the initial custody determination, the Alaska court concluded that Texas was the more appropriate forum and ceded its jurisdiction to the Texas court, primarily because evidence about the children's current status was in Texas.

         We vacate the superior court's decision. It was an abuse of discretion to minimize the importance of protecting the children from the father's alleged domestic violence and to minimize evidence required to resolve domestic violence and Indian Child Welfare Act issues in this case.

         II. FACTS AND PROCEEDINGS

         John C. McDonald and his wife were the parents of three minor children born between 2006 and 2010. The parties agree that the children are "Indian children" as defined by the Indian Child Welfare Act (ICWA).^[1] The children have maternal relatives living in Anchorage and paternal relatives living in Texas.

         The children were born and raised in Fairbanks, and the family lived together in Fairbanks until McDonald killed his wife in March 2014. In August McDonald was arrested, incarcerated, and charged with his wife's murder. He eventually pleaded guilty to criminally negligent homicide in April 2016.

         Shortly after his August 2014 arrest, McDonald's sister, Rebecca Schimcek, moved the children from Fairbanks to Texas. That September Schimcek and other paternal relatives filed a custody petition with McDonald's consent in Texas district court. The paternal relatives did not disclose McDonald's pending murder charge in their petition, and the maternal relatives were not notified of the proceeding. The Texas district court primarily awarded custody of the children to Schimcek and her husband. The order did not contain any reference to potential domestic violence by McDonald.

         The next month Jessie Rice, sister of the deceased mother, filed a separate custody petition against McDonald in Alaska superior court, asserting that the mother was deceased and that McDonald was incarcerated and awaiting trial for her murder. Rice's father later joined her in the case, but he did not appear in this appeal. She also filed a motion to vacate the Texas order. McDonald moved to dismiss, arguing that the Alaska court lacked jurisdiction to modify the Texas order.

         The superior court denied McDonald's motion to dismiss in November 2015. The court applied the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which defines a priority scheme for determining initial jurisdiction in child custody matters.^[2] The court concluded that Alaska, not Texas, had exclusive jurisdiction to make the initial custody determination for the children because Alaska had a higher jurisdictional priority than Texas and had not declined to exercise its jurisdiction.^[3] Although the Texas custody order was proper under Texas's temporary emergency jurisdiction, the court explained that the Texas order would cease to be effective once the Alaska court issued a final custody order.^[4] The court also ordered Rice to join the paternal relatives as necessary parties.^[5]

         Soon after its decision the Alaska court held a telephonic conference with a district court judge in Texas. In late November the Alaska court requested supplemental briefing based on the UCCJEA's inconvenient forum provision, which allows a state with higher priority to cede jurisdiction to a lower priority state if the other state is a more appropriate forum.^[6] McDonald argued that the Alaska court should cede its jurisdiction to Texas; Rice disagreed and argued that the case should remain in Alaska. Rice also claimed that the proceeding was subject to ICWA and argued that evidence required by ICWA, along with evidence related to the homicide, was located in Alaska.

         Schimcek submitted an affidavit which established that the children were living with her in Texas. She described each child's current situation, including counseling, healthcare, education, and socialization. She claimed that "[a]ny pertinent testimony or evidence of the children's current well[-]being is here in Texas."

         The next month the Alaska court declined to exercise its jurisdiction, concluding that a court in Texas would be a more appropriate forum to make the initial custody determination. The court based its decision on the evidence in Texas about the children's current status, finding most of the other factors neutral and minimizing the significance of the homicide allegations against McDonald because he was incarcerated. The court suggested that ICWA would not apply unless the children were "placed into state custody" and later explained that "[a]ny requirements of . . . ICWA can be addressed by the Texas court." The court dismissed the Alaska case and ceded jurisdiction to Texas.

         Rice appeals. McDonald filed a notice of non-participation.

         III. DISCUSSION

         Rice argues that ICWA applies to this proceeding. She also argues that the Alaska superior court afforded too much weight to the Texas evidence in its decision to decline jurisdiction. We agree.^[7]

         A. ICWA Applies To The Alaska Custody Proceeding.

         We apply our independent judgment when interpreting federal statutes such as ICWA.^[8]

         ICWA applies "to child custody proceedings involving Indian children."^[9] "Child custody proceeding" is defined to include "foster care placement, " which itself is defined to include "temporary placement in... the home of a guardian... where the parent . . . cannot have the child returned upon demand."^[10] Since the early days of ICWA, we have rejected the claim that ICWA applies "only to custody proceedings involving the removal of Indian children from their homes by nonfamily public and private agencies."^[11] Thus we have applied ICWA in a custody dispute between grandparents, ^[12] in a custody dispute between a father and a stepfather after the mother died, ^[13] and generally to "custody disputes within the extended family" even when the case ...