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J.W. v. R.J. (1/16/98), 951 P 2d 1206
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-7827
) Superior Court No.
v. ) 4FA-95-1437 CI
R.J., ) O P I N I O N
Appellee. ) [No. 4934 - January 16, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph Beistline, Judge.
Appearances: Bonnie J. Coghlan, Fairbanks, for
Appellant. Daniel L. Callahan, Schendel & Callahan, Fairbanks, for
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
The father and stepfather of a minor child are Alaska
Natives who each seek custody of the child following her mother's
death. The superior court awarded joint legal custody to the
contestants, primary physical custody to the stepfather, and
visitation to the father. While the father's appeal from that
judgment was pending, the superior court modified the judgment and
awarded physical and legal custody to the father. Because the
child's tribe was not given an opportunity to intervene and the
initial judgment was not supported by fact findings satisfying the
test that controls a custody dispute between a parent and non-
parent, we remand for further findings and for proceedings
consistent with the Indian Child Welfare Act.
II. FACTS AND PROCEEDINGS
S.R. was born in 1988. E.J. was her mother and J.W. was
her father. S.R. had lived since infancy with her mother and her
stepfather, R.J. E.J. and R.J. married in 1989. J.W. saw S.R. on
her first birthday and did not see her again until August 1995. In
1995 R.J., the stepfather, filed for divorce from E.J., [Fn. 1] and
sought legal and primary physical custody of S.R. J.W. contested
custody. E.J., S.R.'s mother, had custody of S.R. until E.J. died
in March 1996. The custody contest between the father, J.W., and
the stepfather, R.J., then became the only remaining dispute.
Following E.J.'s death, the superior court gave the
stepfather temporary custody, with visitation to the father. The
superior court conducted a custody trial and in August 1996 entered
judgment awarding shared legal custody to the father and
stepfather, primary physical custody to the stepfather, and
visitation to the father. The father appealed from that judgment,
arguing that the court erred in failing to apply the Indian Child
Welfare Act and that there was insufficient evidence under the
state law standard to award custody to a non-parent. The father
did not seek a stay when he filed his appeal.
Relevant events occurred after entry of the 1996
judgment. The state took custody of S.R. from September 4, 1996,
to December 4, 1996, following a report that the stepfather had
previously abused S.R. sexually. The state placed S.R. with her
aunt in Fairbanks during this three-month period. S.R. was
returned to her stepfather in Birch Creek on December 4, and
remained there until December 18, when she traveled to Fairbanks
for Christmas visitation with her father.
On January 9, 1997, the father, J.W., moved in the
superior court for a stay pending appeal, alleging that the
stepfather had sexually abused the child, and that she was at risk
if she returned to his custody. J.W. also moved for expedited
The court granted expedited consideration the next day,
without giving the stepfather an opportunity to file an opposition.
The superior court gave the stepfather until January 15 to respond
to the underlying motion, but did not specify the child's custody
in the meantime. When the father's lawyer called the judge's
secretary and inquired whether S.R. was required to return to the
stepfather's custody pending resolution of the motion, the court
ordered that the child remain in Fairbanks while the matter was
At a January 13, 1997, status hearing, the superior court
orally denied the father's stay motion, but set a hearing for
January 16 to determine "whether or not there are circumstances
that now exist that place [S.R.] at risk in going back to Birch
On January 16 the father moved to modify custody. The
superior court heard testimony on January 16 and 17 from the doctor
who had examined S.R. in August 1996, the Alaska State Trooper who
had interviewed her, and the two contestants. The superior court
also accepted the report of the guardian ad litem (GAL). On
January 17 the superior court issued an order modifying the August
1996 judgment. The order found that "[c]onsiderable confusion
exists as to whether [S.R.] was ever sexually molested and, if so,
when and by whom." The order also stated that "[t]he evidence
before this court at this time does not suggest that [S.R.] is
currently at risk in the [stepfather's] household." Nonetheless,
the order found that a change of circumstances had occurred since
the 1996 trial, and permanently modified the judgment by giving
primary physical custody to S.R.'s father, with visitation to
Several months later, over the stepfather's objection,
the court ordered an in camera interview with S.R. The superior
court sua sponte again permanently modified the custody order on
May 15, 1997, giving sole legal custody to the father and
decreasing the stepfather's visitation. The stepfather, R.J.,
appeals both 1997 modification orders on the theory that procedural
errors denied him due process of law.
We here consider the father's appeal from the 1996
judgment and the stepfather's appeal from the 1997 modifications.
A. Standard of Review
We will disturb the trial court's resolution of child
custody issues only "if the record shows an abuse of discretion or
if controlling findings of fact are clearly erroneous." House v.
House, 779 P.2d 1204, 1207 (Alaska 1989) (citing Faro v. Faro, 579
P.2d 1377, 1379 (Alaska 1978)). Whether factual findings are
sufficient to support an award of custody to a non-parent is a
legal issue to which we apply our independent judgment. R.R. v.
State, 919 P.2d 754, 755 n.1 (Alaska 1996).
The applicability of the Indian Child Welfare Act of 1978
to this proceeding is a question of law subject to our independent
judgment. In re T.N.F., 781 P.2d 973, 975 (Alaska 1989). We will
"adopt the rule of law that is most persuasive in light of
precedent, reason and policy." Guin v. Ha, 591 P.2d 1281, 1284 n.6
B. The Post-Judgment Modification Orders
The stepfather, R.J., argues that the superior court
erred in 1997 by: (1) entering the order for expedited
consideration without allowing him a reasonable time to oppose the
motion; (2) amending the order for expedited consideration based on
an ex parte contact with J.W.'s counsel; (3) modifying the judgment
pending the outcome of a motion for a stay; (4) treating the motion
for stay on appeal as a motion for modification; (5) admitting into
evidence Dr. Marvin Bergeson's testimony about the child's
identification of the perpetrator, Dr. Bergeson's report, and the
GAL's testimony about the child's statements; (6) basing the
January 1997 modification on issues not identified by the superior
court before the hearing; and (7) permanently modifying the 1996
judgment without proper notice and hearing.
The father, J.W., argues not that the orders were entered
without procedural error, but that any errors are mooted by
correcting the error of awarding custody to the stepfather in
Our resolution of issues concerning the August 1996
judgment moots any need to consider questions about the procedural
adequacy of the 1997 orders. [Fn. 2]
C. The August 1996 Judgment
1. Was it an abuse of discretion to award custody of
S.R. to her stepfather, R.J.?
The father, J.W., argues that the superior court
improperly applied the Alaska standard for resolving a custody
dispute between a parent and non-parent. He reasons that under
Turner v. Pannick, 540 P.2d 1051 (Alaska 1975), and Carter v.
Novotny, 779 P.2d 1195 (Alaska 1989), the superior court must find
that the parent is unfit or that it would be harmful to the child's
welfare to be placed with the parent before the non-parent is
awarded custody. He claims that there is insufficient evidence to
make this finding. The stepfather, R.J., argues that the superior
court correctly applied the Turner standard and "clearly"found
that "placement outside [R.J.]'s home would be detrimental to the
child . . . ."
Turner v. Pannick stands for the proposition that
parental custody is preferable and only to be refused where it is
clearly detrimental to the child. 540 P.2d at 1055. "Unless the
superior court determines that the parent is unfit or has abandoned
the child, or that the welfare of the child requires that the non-
parent receive custody, the parent must be awarded custody."[Fn.
3] Id. We reaffirmed these principles in B.J. v. J.D.,
___P.2d___, Op. No. 4921 (Alaska, December 19, 1997); Rooney v.
Rooney, 914 P.2d 212, 216 n.8 (Alaska 1996); Buness v. Gillen, 781
P.2d 985, 988-89 (Alaska 1989); Carter, 779 P.2d at 1197; and Britt
v. Britt, 567 P.2d 308, 310 (Alaska 1977).
We agree with the father that the 1996 judgment is not
supported by the fact findings necessary for an award of custody to
a non-parent. The superior court recited the Turner standard, as
set out in Carter, and also cited to Buness, but found that S.R.'s
"psychological and emotional development, as well as her overall
welfare, requires that this relationship [with her stepfather] not
be traumatically interrupted." The superior court based this
finding on the fact that S.R. had lived most of her life with her
stepfather, that he had become her psychological father in many
ways, and that he could provide her a stable home. The superior
court found that S.R.'s father had not known her for most of her
life and that they had just recently become reacquainted. Yet the
superior court also found that both men are "fit parents who desire
the best for [S.R.]." After determining that S.R.'s welfare
required a parental role for the stepfather, the superior court
then seemingly applied the statutory factors under AS 25.24.150 to
determine that it was in S.R.'s best interest that the stepfather
have custody during the school year and that the father have
custody during the school vacations.
There was no express finding that it would be detrimental
for S.R. to be placed in her natural father's custody. [Fn. 4]
Although use of the word "detrimental"is not mandatory, the
findings had to demonstrate that the Turner detriment standard was
being applied. The court instead appears to have applied the best
interest standard set out in AS 25.24.150. The court may have
reasoned that the stepfather's assumption of an in loco parentis
status gave him parental rights equal to the father's; its citation
of Buness suggests that it may have considered that the
relationship between the child and the stepfather conferred a
parent-like standing on the stepfather that made it unnecessary to
apply the Turner standard. Such an analysis, however, would have
been contrary to the essential holding of Turner, that "parental
custody . . . is preferable and only to be refused where clearly
detrimental to the child." 540 P.2d at 1055. The relationship
between the stepparent and the child, no matter how close, does not
justify application of the best interests standard; the court may
take the relationship into account, however, in deciding whether
awarding custody to the biological parent would be detrimental to
the child. Absent a finding in this case that the father is unfit,
has abandoned the child or that the welfare of the child requires
that a non-parent receive custody, the parental preference
controls. We therefore reverse the superior court's 1996 award of
custody to the stepfather, R.J., and remand [Fn. 5] for further
proceedings consistent with this opinion. [Fn. 6]
2. Does the Indian Child Welfare Act apply here?
It is undisputed that S.R., her father, and her
stepfather are Alaska Natives. The August 1996 order, citing 25
U.S.C. sec. 1903(1), concluded that "the Indian Child Welfare Act
U.S.C. sec.sec. 1901 et seq.] does not apply to this matter." The
did not explain the reason for that conclusion, but noted that
"both parties are Indian." It appears no formal notice of the 1996
and 1997 custody proceedings was given to any Indian tribe,
including the village which apparently considers S.R. to be a
tribal member. [Fn. 7]
The father, J.W., argues that it was error not to apply
the Indian Child Welfare Act (ICWA) to the custody proceedings. He
argues that before the superior court could place the child with
her stepfather, it had to determine pursuant to sec. 1912(e) that
there was clear and convincing evidence, including expert
testimony, that serious emotional or physical damage would likely
result if S.R. were placed with her father. He also argues that
ICWA would not have applied if S.R. had been placed with him,
The stepfather, R.J., argues that ICWA does not apply.
He alternatively asserts, however, that because he qualifies as
S.R.'s "Indian custodian,"he is entitled to receive the benefit of
ICWA protections against removal of a child, and that applying ICWA
for the father's benefit would lead to the "absurd result"of
removing the child from her Indian custodian.
ICWA's protections, if applicable, include the clear and
convincing burden of proof for removing an Indian child from a
parent or Indian custodian [Fn. 8] and a requirement that the
child's Indian tribe be allowed to intervene in the proceeding.
[Fn. 9] 25 U.S.C. sec.sec. 1911, 1912. The legislative history of
reveals that Congress was concerned with two goals: protecting the
best interests of Indian children and promoting the stability and
security of Indian tribes and families. See H.R. Rep. No. 95-1386,
at 8 (1978); see also Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 37 (1989); A.B.M. v. M.H., 651 P.2d 1170,
1172 (Alaska 1982). Although ICWA provides procedural protections
for parents and Indian custodians, see, e.g., sec. 1912(e)
higher burden of proof for foster care placement), it also protects
the tribes and the Indian children, see, e.g., sec. 1911 (giving
tribes exclusive jurisdiction in custody disputes on reservations,
and the right to intervene in state court custody proceedings).
Congress determined that tribal participation in custody
proceedings would better reflect Native values, and that placement
decisions would better reflect the best interests of Indian
children. See 25 U.S.C. sec. 1901(5); Holyfield, 490 U.S. at 34-
H.R. Rep. No. 95-1386, at 10, 19 (1978). Applying ICWA to custody
disputes between parents and non-parents allows the tribe an
opportunity to intervene and offer its insight into the relative
fitness of the contestants.
Congress was also concerned with state action, including
judicial action, in custody decisions involving Indian children.
See 25 U.S.C. sec. 1901(5); H.R. Rep. No. 95-1386, at 19 (1978).
Although our state standard for awarding custody of a child to a
non-parent is higher than the best interests standard usually
applied in custody disputes, ICWA imposes an even higher standard
of proof before an Indian child may be removed from the custody of
a parent or Indian custodian. [Fn. 10]
ICWA applies to "child custody proceedings"involving an
Indian child. 25 U.S.C. sec. 1903(1)(i)-(iv). The only type of
"child custody proceeding"relevant here is a "foster care
placement,"which ICWA defines as:
any action removing an Indian child from its
parent or Indian custodian for temporary placement in a foster home
or institution or the home of a guardian or conservator where the
parent or Indian custodian cannot have the child returned upon
demand, but where parental rights have not been terminated.
25 U.S.C. sec. 1903(1)(i). The definition contains four
(1) an action removing an Indian child from its parent or Indian
custodian, [Fn. 11] (2) temporary placement in a foster home,
institution, or home of a guardian or conservator, (3) inability of
the parent or Indian custodian to have the child returned upon
demand, and (4) absence of termination of parental rights. The
last three requirements clearly existed here: S.R.'s 1996
placement with the stepfather was a temporary placement in the home
of a guardian; [Fn. 12] after the court awarded custody to the
stepfather, the father could not obtain S.R.'s return upon demand;
and no parental rights had been terminated.
It also appears that this case involves "an action
removing an Indian child from its parent or Indian custodian." All
proceedings thus far involved the potential, if not actual, removal
of the child from the father. Although he did not previously have
physical custody, the proceedings still removed the child from the
father's legal custody. See In re Adoption of a Child of Indian
Heritage, 543 A.2d 925, 937 (N.J. 1988) (stating that phrase, "from
whose custody such child was removed,"in sec. 1914 refers to legal
rather than actual physical custody of child); In re Welfare of
W.R. and A.R., 379 N.W.2d 544, 549 (Minn. App. 1986) (finding sec.
1912 provision of "the continued custody of the child by the
parent"does not refer to the physical custody of the child); In re
Adoption of Baade, 462 N.W.2d 485, 490 (S.D. 1990) ("the custody
referred to in sec. 1912(f) is legal rather than physical
We consequently conclude that the custody proceeding was a "foster
care placement"within the meaning of ICWA, sec. 1903(1)(i).
The stepfather argues that ICWA does not apply because
its purpose is "to restrict placements outside the Indian home and
away from the existing family thereby causing the breakup of the
Indian family."[Fn. 13] This reading of ICWA's purpose is too
narrow. As we noted above, one purpose of ICWA is to permit tribal
participation in state custody proceedings. This purpose is
advanced by permitting the child's tribe to express its preference
or comment on the relative fitness of the contestants. This
opportunity increases the likelihood non-Indians will recognize and
appreciate cultural and social values thought by the tribe to be
important in resolving the custody dispute.
Similar proceedings have been held to be foster care
placements. The New Mexico Court of Appeals found that the
placement of children after a parent's death was a foster care
proceeding under ICWA because the children had not been placed with
their aunt, who was their Indian custodian under tribal custom, and
therefore were "removed"from her. In re Ashley Elizabeth R., 863
P.2d 451, 453 (N.M. App. 1993). Other courts, while not
specifically addressing the "removal"issue, have held that ICWA
applied to custody disputes between parents and non-parents. See
In re Custody of A.K.H., 502 N.W.2d 790, 792-93 (Minn. App. 1993)
(finding that custody dispute between parents and grandparents was
a foster care proceeding and that ICWA applied); In re Custody of
S.B.R., 719 P.2d 154, 156 (Wash. App. 1986) (same).
The stepfather also argues that this dispute falls within
the exclusion to ICWA for custody disputes between parents in a
divorce proceeding. 25 U.S.C. sec. 1903(1). He reasons that this
dispute is really the equivalent of a custody dispute between two
parents because he was S.R.'s Indian custodian and psychological
parent, who has acted in loco parentis for most of her life, and
who may be treated as a parent under state law.
The child custody proceedings to which ICWA applies do
"not include a placement based . . . upon an award, in a divorce
proceeding, of custody to one of the parents." 25 U.S.C. sec.
1903(1). ICWA defines "parent"to mean "any biological parent or
parents of an Indian child or any Indian person who has lawfully
adopted an Indian child, including adoptions under tribal law or
custom. It does not include the unwed father where paternity has
not been acknowledged or established."25 U.S.C. sec. 1903(9).
Neither stepparents acting in loco parentis nor Indian custodians
are included in this definition. Furthermore, "stepparent"is
included in the definition of "extended family member."[Fn. 14]
25 U.S.C. sec. 1903(2). A "stepparent"is clearly not a "parent"
within ICWA usage, and therefore a dispute between a parent and
stepparent does not fall within the ICWA exclusion for custody
disputes between parents.
We conclude that ICWA applied to the proceedings below.
Because the April 1996 interim custody order and the August 1996
judgment violated the provisions of sec. 1911 and possibly sec.
they must be vacated and this case remanded for further proceedings
consistent with ICWA. 25 U.S.C. sec. 1914. [Fn. 15]
The effects of this conclusion are not completely clear.
Certainly the superior court proceedings removed the child from the
legal custody of a parent or Indian custodian without giving the
child's tribe an opportunity to participate. As a result, any
findings weighing the fitness of the contestants were made without
benefit of the tribe's comments. That deficiency can be remedied
only if the proper tribe is given notice and the opportunity to
participate on remand.
The father invokes sec. 1912(e) for its requirement of
"clear and convincing"evidence before an Indian child is removed
from a parent or Indian custodian. The stepfather argues that if
ICWA does apply, he qualifies as the Indian custodian, and
therefore is also entitled to the benefit of the ICWA protections.
It is unclear whether the stepfather is an Indian
custodian. Although the stepfather alternatively argued below that
he qualified as the child's Indian custodian, he does not appear to
have sought a finding of fact to that effect. On remand, the
superior court must determine whether the stepfather was S.R.'s
"Indian custodian"within the meaning of sec. 1903(6). [Fn. 16]
If the stepfather does not establish that he was the
child's Indian custodian, he has no arguable right to invoke the
ICWA heightened standard of proof. Instead, the father will have
the benefit of sec. 1912(e).
A finding on remand that the stepfather is the child's
Indian custodian will squarely raise the legal question whether
1912(e) applies reciprocally in a dispute between a parent and
Indian custodian. Subsection 1912(e) expresses a strong preference
for custody "by the parent or Indian custodian." The subsection
treats parents and Indian custodians as coequals, as does the
definition of "foster care placement"in sec. 1903(1)(i). No
of ICWA indicates that Congress preferred a parent to an Indian
custodian if the parent did not previously have physical custody.
Although sec. 1916 states that the protections of ICWA do not apply
when an Indian child is removed from a foster care home and
returned to the parent or Indian custodian from whose custody the
child was originally removed, we cannot assume that Congress
generally preferred parents to Indian custodians.
The purposes behind ICWA are consistent with restricting
sec. 1912(e) to disputes between persons having favored status --
parents and Indian custodians -- and others who are neither parents
nor Indian custodians. There would appear to be no logical reason
consistent with the statutory purpose to apply sec. 1912(e) in a
contest between two equally favored contestants. We therefore hold
that if the stepfather proves on remand that he is S.R.'s Indian
custodian, sec. 1912(e) will not apply and the superior court
instead apply the Alaska standard for custody disputes between
parents and non-parents discussed in Part III.C.1. [Fn. 17] See 25
U.S.C. sec. 1921 ("In any case where State or Federal law . . .
provides a higher standard of protection to the rights of the
parent or Indian custodian of an Indian child than the rights
provided under this subchapter, the State or Federal court shall
apply the State or Federal standard.").
Because the 1996 judgment was not based on the fact
findings required by state law for awarding custody of the child to
the stepfather, and because the provisions of ICWA were not applied
in the proceedings below, we VACATE the May 15, 1997, Second
Modification of Judgment and the August 28, 1996, Findings of
Facts, Conclusions of Law, and Judgment, and REMAND for further
proceedings to determine under state law whether placement with the
father would be clearly detrimental to S.R. Because ICWA applies
to this dispute, the child's tribe must be given an opportunity to
participate in those proceedings and offer evidence on the fitness
of the contestants and on the issue of whether the stepfather,
R.J., is an Indian custodian. Any such evidence may be considered
in applying the Turner standard.
If the superior court concludes under Turner that it
would be clearly detrimental to the child to return her to her
father, the court will next have to determine whether the father is
entitled to the benefit of the "clear and convincing"standard of
25 U.S.C. sec. 1912(e). Unless it finds that the stepfather is
"Indian custodian"under 25 U.S.C. sec. 1903(6), the court cannot
award custody to the stepfather unless he satisfies sec. 1912(e).
the stepfather was S.R.'s Indian custodian, the ICWA statutory
preference will not apply, and custody will turn on the outcome of
the Turner ruling.
E.J. and R.J., the stepfather, also had three other children
whose custody is not in dispute here.
Some of these issues may arise again, but the legal and
factual contexts are likely to differ, rendering our present
consideration premature. Nonetheless, the admissibility of Dr.
Bergeson's testimony about S.R.'s identification of the alleged
perpetrator is particularly likely to arise again. Although we do
not decide whether the cited exceptions or other exceptions to the
hearsay rule may apply, we note that Sluka v. State, 717 P.2d 394
(Alaska 1986), and Broderick v. King's Way Assembly of God Church,
808 P.2d 1211 (Alaska 1991), offer guidance on this issue.
"In order to satisfy the 'welfare of the child' requirement,
the non-parent must show that it clearly would be detrimental to
the child to permit the parent to have custody."Turner v. Pannick,
540 P.2d 1051, 1054 (Alaska 1975). The non-parent has the burden of
proving the detriment by a preponderance of the evidence. Britt v.
Britt, 567 P.2d 308, 310 (Alaska 1977).
Both concurring opinions in Turner expressed reservations
about courts' ability to distinguish between a "welfare of the
child"test and a "best interests"test. See Turner, 540 P.2d at
1055 (Dimond, J., concurring); Id. at 1056 (Rabinowitz, C.J.,
concurring). Reservations about how the Turner standard and the
parental preference are applied have been expressed on at least one
occasion. See Matson v. Matson, 639 P.2d 298, 302 & n.4 (Alaska
1982) (concern that the categorization between parent and non-
parent may be undesirable) (Compton, J., dissenting). It has not
been necessary for us to consider parties' arguments for a
different standard. See, e.g., Hayes v. Hayes, 922 P.2d 896, 898
(Alaska 1996). The stepfather, R.J., does not argue that we should
overturn Turner; he instead argues that the findings satisfied the
Turner standard as refined in subsequent decisions. He argues that
Turner "may be satisfied by a showing that placement outside the
non-parent's home may be detrimental to the child regardless of the
fitness of the biological parent."
In context we interpret the court's finding that the child's
welfare requires that her relationship with her stepfather "not be
traumatically interrupted"to mean that any transfer of custody
should be gradual rather than sudden, not that the child's welfare
requires that she be permanently placed with her stepfather.
The father argues in his brief that there is insufficient
evidence in the record to support a finding that placement with her
father would be detrimental to S.R. We decline to decide that
there is insufficient evidence as a matter of law. Moreover, the
father's counsel acknowledged at oral argument that further
proceedings may be necessary to determine custody under Turner.
Also, for reasons discussed below, the child's tribe must be given
an opportunity to address the fitness of the contestants.
Because they may be relevant to custody issues, the superior
court on remand may consider post-judgment events in applying the
The Native Village of Birch Creek (NVBC) moved to intervene in
another proceeding concerning S.R., and filed with its motion a
1996 Dendu Gwich'in Tribal Council resolution declaring S.R. to be
a tribal member of NVBC. NVBC never moved to intervene in the
present custody dispute.
The Native Village of Fort Yukon (NVFY) moved to
intervene in the present custody dispute in 1997, alleging that it
was S.R.'s tribe. After initially granting the motion, the
superior court ultimately denied it on the ground "the child . . .
is a member of [NVBC] and is not a member of [NVFY]." NVFY did not
appeal from the denial of its intervention motion.
25 U.S.C. sec. 1912(e) provides:
No foster care placement may be ordered in
such proceeding in the absence of a
determination, supported by clear and
convincing evidence, including testimony of
qualified expert witnesses, that the continued
custody of the child by the parent or Indian
custodian is likely to result in serious
emotional or physical damage to the child.
25 U.S.C. sec. 1911(c) provides:
In any State court proceeding for the foster
care placement of, or termination of parental
rights to, an Indian child, the Indian
custodian of the child and the Indian child's
tribe shall have a right to intervene at any
point in the proceeding.
State law requires the non-parent to
prove by a preponderance standard that
parental placement would be detrimental to the
child. See supra note 3. ICWA requires that
an order for foster care placement must be
supported by clear and convincing evidence of
likely serious emotional or physical damage to
the child if he or she remains with the
parent. 25 U.S.C. sec. 1912(e).
"'Indian custodian' means any Indian
person who has legal custody of an Indian
child under tribal law or custom or under
State law or to whom temporary physical care,
custody, and control has been transferred by
the parent of such child." 25 U.S.C. sec.
The stepfather argues that placement with
him was not a placement in a "foster home or
institution or the home of a guardian or
conservator." He was, however, legally S.R.'s
guardian or conservator when she was with him
under the 1996 custody orders because he is
not her natural or adoptive father. While
ICWA does not define "guardian,"the rights he
acquired under the 1996 orders brought him
within the common definition of the term. See
Webster's New World Dictionary at 620 (1972)
(defining "guardian"as "(1) a person who
guards, protects, or takes care of another
person . . . (2) a person legally placed in
charge of the affairs of a minor"). See also
In re Custody of A.K.H., 502 N.W.2d 790, 792-
93 (Minn. App. 1993) (finding that placement
with grandparent was placement with guardian
or conservator); In re Custody of S.B.R., 719
P.2d 154, 156 (Wash. App. 1986) (same).
R.J., the stepfather, similarly argues
that ICWA does not apply to this case because
it is an "intra-family custody dispute."
These arguments originate in In re Bertleson,
617 P.2d 121, 125-26 (Mont. 1980), which held
that ICWA did not apply to a custody dispute
between a parent and the grandparents because
it was not intended to apply to "internal
family disputes." We declined to follow
Bertleson in A.B.M. v. M.H., 651 P.2d 1170,
1173 n.6 (Alaska 1982).
The stepfather also argues that
applying ICWA for the father's benefit "would
cause the absurd result"of removing S.R. from
her existing Indian family and from the
custody of her Indian custodian.
25 U.S.C. sec. 1903(2) provides:
"Extended family member"
shall be as defined by the law or custom of
the Indian child's tribe or, in absence of
such law or custom, shall be a person who has
reached the age of eighteen and who is the
Indian child's grandparent, aunt or uncle,
brother or sister, brother-in-law or sister-
in-law, niece or nephew, first or second
cousin, or stepparent.
25 U.S.C. sec. 1914 provides in pertinent
[A]ny parent or Indian custodian from whose
custody such child was removed . . . may
petition any court of competent jurisdiction
to invalidate such action upon a showing that
such action violated any provision of sections
1911, 1912, and 1913 of this title.
25 U.S.C. sec. 1903(6) defines "Indian
[A]ny Indian person who has legal custody of
an Indian child under tribal law or custom or
under State law or to whom temporary physical
care, custody, and control has been
transferred by the parent of such a child.
The stepfather may be the child's Indian custodian under tribal law
or custom, or because the mother transferred physical care,
custody, and control of the child to the stepfather. The
stepfather may also be an Indian custodian under state law, but
because the April 1996 order and August 1996 judgment are vacated,
the court should not consider whether he was an Indian custodian
under those orders.
It is not inconsistent to apply the state law parental
preference here, because we are simply reading the sec. 1912(e)
standard to be inapplicable; ICWA does not clearly express a policy
that forbids the state from applying a preference for the claim of
the biological parent whose rights have not been terminated by the
child's tribe. This case does not involve a ruling by a tribal
court that terminates the father's custodial rights in favor of the