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v. P.C.S. (2/12/01) sp-5360
C.L. v. P.C.S. (2/12/01) sp-5360
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
C.L. and C.L., )
) Supreme Court No. S-9478
Appellants, )
) Superior Court No.
v. ) 4FA-99-261 PR/A
)
P.C.S., ) O P I N I O N
)
Appellee. ) [No. 5360 - February 12, 2001]
______________________________)
)
In the Matter of the ) Supreme Court No. S-9607
Adoption of )
) Superior Court No.
S.K.A., f/k/a S.G. ) 4FA-99-433 PR/A
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Michael J. Walleri, Law Offices
of Michael J. Walleri, Fairbanks, for Appellants C.L. and C.L., and
S.K.A. Daniel L. Callahan, Schendel & Callahan, Fairbanks, for
Appellee P.C.S. Brooks W. Chandler, Hicks, Boyd, Chandler &
Falconer, Anchorage, for R.K. and J.A.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
L.G.'s parental rights were terminated as to her
daughters, J.G. and S.G. The superior court awarded adoption of
J.G. to P.S., and awarded adoption of S.G. to R.K. and J.A. The
maternal grandparents of the children sought their adoption below,
and they challenge various aspects of the adoption proceedings.
For the reasons stated below, we affirm the decision of the
superior court in all respects.
II. FACTS AND PROCEEDINGS
J.G., who was born on September 16, 1991, and S.G., who
was born on October 1, 1994, are the daughters of mother L.G. The
children and their mother are Yupik Natives and tribal members of
the Native Village of Emmonak.
C.L. and C.L. are the children's maternal grandparents.
Mrs. C.L. is also an Emmonak tribal member and is the biological
mother of L.G. Mr. C.L. is a non-Native and is L.G.'s step-father.
L.G.'s parental rights in J.G. and S.G. were terminated
on April 28, 1999, [Fn. 1] after a proceeding before Superior Court
Judge Richard D. Savell. We affirmed this termination in a
separate opinion, L.G. v. State, Department of Health & Social
Services. [Fn. 2] In that opinion we discussed L.G.'s long history
of substance abuse and the evidence that L.G. neglected J.G. and
S.G. [Fn. 3]
J.G. and S.G. have both had multiple homes and care
givers. J.G. lived with her mother for her first two and one half
years, until the Division of Family and Youth Services (DFYS) took
protective custody. Then, for a brief period J.G. lived with her
grandparents, C.L. and C.L., until the grandparents returned her to
DFYS. J.G. was then placed in three successive, short-term foster
homes. Then, J.G. was placed with P.S., a single woman who was
later granted adoption of J.G. by the superior court below.
J.G. lived with P.S. for more than a year, until DFYS
returned J.G. to her mother's custody. However, J.G. continued to
visit P.S. on weekends. J.G. remained in her mother's custody
until March 1996, when DFYS took emergency custody of J.G. because
of L.G.'s continued substance abuse problems. For five months J.G.
lived with R.K. and J.A., who also had custody of S.G. During this
period J.G. maintained regular contact with P.S. and spent entire
weekends with P.S. After this, J.G. was returned to her mother's
custody for about a year, until DFYS once again took emergency
custody because of L.G.'s drug abuse. In the next year, J.G. lived
in two different foster homes. In July 1998 J.G. returned to the
custody of P.S. and has lived with her ever since.
S.G. has had a similarly complicated placement history.
S.G. lived with her mother for the first few months of her life,
until DFYS took protective custody. After an initial foster home
placement, S.G. lived with a Native couple, R.K. and J.A., who were
eventually awarded adoption of S.G. by the superior court below.
In October 1995 S.G. was returned to her mother's care, although
R.K. and J.A. continued to visit, and babysat S.G. on occasion.
S.G. remained in her mother's custody until March 1996, when DFYS
took emergency custody of S.G., as well as J.G., because of L.G.'s
continued substance abuse problems. At this time S.G. was returned
to the care of R.K. and J.A. The child lived with them for the
next five months. In August 1996 S.G. was returned to her mother's
custody for about a year, until DFYS once again took emergency
custody because of L.G.'s drug abuse. S.G. then lived in two
different foster homes for a year, along with J.G. In July 1998
S.G. returned to the custody of R.K. and J.A. and has lived with
them ever since.
The April 28, 1999 termination of L.G.'s parental rights
made J.G. and S.G. available for adoption. [Fn. 4] In the superior
court below, Judge Ralph R. Beistline conducted separate adoption
proceedings for J.G. and S.G.
On May 17, 1999, P.S., with whom J.G. has lived since
July 1998, petitioned to adopt J.G. P.S. is a single, non-Native
woman.
On June 8, 1999, grandparents C.L. and C.L. intervened in
J.G.'s adoption proceedings, and sought custody of J.G. for
themselves.
On August 12, 1999, R.K. and J.A. petitioned to adopt
S.G. S.G. currently lives with R.K. and J.A. R.K. is an Emmonak
tribal member and is the children's second cousin once removed by
marriage. J.A. is also a Yupik Alaska Native and is a tribal
member of the village of Kotlik.
On October 12, 1999, C.L. and C.L. intervened in S.G.'s
adoption proceeding, seeking custody of S.G. for themselves. They
also moved to consolidate the cases of J.G. and S.G.
Judge Beistline denied the motion to consolidate the two
cases. After trial, he awarded adoption of J.G. to P.S. and
awarded adoption of S.G. to R.K. and J.A. Judge Beistline also
awarded P.S. $1,000 in attorney's fees. C.L. and C.L. have
appealed these rulings. For purposes of appeal, these cases have
been consolidated.
III. STANDARD OF REVIEW
This appeal requires us to review the denial of a motion
to consolidate, the denial of a relative's visitation rights, an
award of attorney's fees, and an appointment of a guardian ad
litem. These decisions are reviewed for abuse of discretion. [Fn.
5]
This appeal also requires us to review the superior
court's interpretation of the Indian Child Welfare Act of 1978
(ICWA); this is a question of law that is reviewed de novo. [Fn. 6]
We are also required to review the superior court's finding of good
cause to deviate from ICWA placement preferences; we will do so
using an abuse of discretion standard. [Fn. 7] The superior
court's factual findings are reviewed using the clearly erroneous
standard. [Fn. 8]
IV. DISCUSSION
C.L. and C.L. challenge various aspects of the adoptions
awarded by the superior court below. In all, five of the superior
court's rulings must be considered: (A) the refusal to consolidate
the separate cases of J.G. and S.G., (B) the awards of adoption (to
P.S. and to R.K. and J.A.), (C) the refusal to award C.L. and C.L.
formal visitation rights, (D) the award of partial attorney's fees
to P.S., and (E) the appointment of Sonia Mazurek as the guardian
ad litem for S.G. For the reasons stated below, we affirm the
decisions of the superior court in all respects.
A. The Superior Court's Decision Not to Consolidate the
Cases Was Not an Abuse of Discretion.
On October 12, 1999, C.L. and C.L. moved to consolidate
the separate adoption proceedings concerning, respectively, J.G.
and S.G. The superior court denied this motion. We review this
decision for abuse of discretion. [Fn. 9]
C.L. and C.L. argue that the superior court abused its
discretion by failing to consolidate the two adoption proceedings.
They claim that the issue of whether the sisters would be separated
was central to both cases and that "the only way that the court
could properly consider sibling bonding" was to consolidate the
proceedings.
Under the circumstances of this case, the superior
court's decision not to consolidate the cases was not an abuse of
discretion. The motion to consolidate was not filed until a month
and a half after the trial in J.G.'s adoption case had begun and
after a full day of testimony had been received. Denial of the
motion did not prejudice C.L. and C.L. because they were free in
both cases to present evidence that would tend to show the
importance of placing the siblings together. Moreover, the
superior court fully considered the importance of keeping the
siblings together in its written findings of fact and conclusions
of law.
B. The Superior Court Properly Awarded Adoption to P.S. and
to R.K. and J.A.
After separate trials, the superior court awarded
adoption of J.G. to P.S., and awarded adoption of S.G. to R.K. and
J.A. C.L. and C.L. challenge these awards.
1. The superior court properly awarded adoption of
J.G. to P.S.
The superior court awarded adoption of J.G. to P.S. on
the basis that good cause existed to deviate from the ICWA
placement preferences. [Fn. 10]
ICWA does not define good cause, [Fn. 11] nor does it set
forth factors to be considered in determining whether good cause
exists. We have previously sought guidance from Bureau of Indian
Affairs (BIA) guidelines, which offer the following list of factors
to consider:
(i) The request of the biological parents or
the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional
needs of the child as established by testimony of a qualified
expert witness.
(iii) The unavailability of suitable families
for placement after a diligent search has been completed for
families meeting the preference criteria.[ [Fn. 12]]
We have also stated that "[w]hether there is good cause
to deviate in a particular case depends on many factors including,
but not necessarily limited to, the best interests of the child,
the wishes of the biological parents, the suitability of persons
preferred for placement and the child's ties to the tribe." [Fn.
13] The best interests of the child remain the paramount
criterion. [Fn. 14]
In awarding adoption of J.G. to P.S., the superior court
found good cause to deviate from the ICWA placement preferences
under 25 U.S.C. sec. 1915(a). The court found that adoption by
P.S.
is in J.G.'s best interests, based on consideration of the
following factors: (i) J.G.'s already existing bond with P.S; (ii)
J.G.'s desire to be adopted by P.S.; (iii) J.G.'s symptoms of
separation anxiety and attachment disorder; (iv) J.G.'s multiple
placements in the past; (v) J.G.'s weaker bond with the
grandparents in comparison to her bond with P.S.; (vi) the
grandparents' misunderstanding of the harm done to J.G. by exposure
to her mother and alcohol; and (vii) J.G.'s cultural needs. We
review the lower court's finding of good cause to deviate from ICWA
placement preferences for abuse of discretion. [Fn. 15] We will
only reverse the superior court's factual findings if they are
clearly erroneous. [Fn. 16]
The grandparents make two basic arguments in their
attempt to show that the superior court abused its discretion in
finding good cause to deviate from ICWA placement preferences.
They claim that (a) some of the factual findings made by the
superior court were clearly erroneous; and (b) the superior court
improperly analyzed the relevant factors for good cause.
a. The superior court's factual findings were not
clearly erroneous.
C.L. and C.L. challenge a number of the factual findings
made by the superior court.
First, the grandparents challenge the court's finding
that J.G. had symptoms of separation anxiety and attachment
disorder. The grandparents claim that this finding was clearly
erroneous because there was no diagnosis of J.G. as having either
separation anxiety or attachment disorder. However, the superior
court did not find that there was a diagnosed condition; it only
found that there were symptoms of these disorders. This is
supported by evidence in the record, in the form of expert
testimony concerning J.G.'s symptoms and behavior. We cannot say
that this finding was clearly erroneous.
Second, the grandparents challenge the court's finding
that J.G.'s bond with her grandparents was not as significant as
her bond with P.S. There is evidence in the record that supports
the grandparents' claim that J.G. has a significant bond with her
grandparents; specifically, J.G. asked to see the grandparents on
at least one occasion, and J.G. was happy to visit her
grandparents. However, there is also evidence in the record that
supports the conclusion that J.G.'s bond with her grandparents was
not as strong as her bond with P.S. Specifically, there was
evidence that the grandparents have had regular but limited contact
with J.G., and that J.G. has consistently maintained and expressed
her desire to stay with P.S. rather than the grandparents.
Moreover, there was expert testimony that P.S. was the only person
with whom J.G. had formed an attachment. Because of this evidence,
we cannot say that the superior court's finding that J.G.'s bond
with her grandparents was not as strong as her bond with P.S. was
clearly erroneous.
Third, the grandparents claim that the superior court
committed clear error by finding that J.G. and her sister S.G. had
no significant bond. However, the superior court made no finding
at all on the nature of the bond between the siblings. The
superior court did find that the sisters did not bond with the same
care giver, but did not find that the sisters lacked a significant
bond with each other. There is, however, evidence in the record,
in the expert testimony, that J.G. and S.G. were not particularly
close to each other. Therefore, there is no clearly erroneous
finding here.
Lastly, the grandparents challenge as clearly erroneous
the superior court's finding that the grandparents "do not
completely appreciate the adverse impact that exposure to [L.G.]
has on [J.G.] and the adverse impact that exposure to alcohol, even
in the slightest amount, has upon [J.G.]." There is adequate
evidence in the record to support this finding. With respect to
J.G.'s contact with her mother, the grandparents have previously
permitted L.G. to see the children on multiple occasions, against
the wishes of DFYS and the foster parents, even during the
termination proceedings. Despite the harm done by contact between
J.G. and her biological mother L.G., Mrs. C.L. testified that she
would permit L.G. to see J.G. if L.G. remained clean and sober for
a few years.
With respect to the exposure to alcohol, both
grandparents testified that they currently drink to the point of
"getting a buzz" on occasion. Both grandparents were in the past
convicted of driving while intoxicated and attended alcohol
treatment programs. Also, there is evidence that Mrs. C.L. drank
in front of J.G., and was intoxicated on occasions when social
workers called and when J.G. was brought for a scheduled visit.
Adequate evidence in the record supports the court's finding that
the grandparents do not understand the impact on J.G. of exposure
to her mother and to alcohol consumption.
b. The superior court properly analyzed the
appropriate factors for good cause deviation from ICWA adoptive
preferences.
C.L. and C.L. also claim that the superior court
improperly analyzed the relevant factors in finding good cause to
deviate from ICWA's preferences for adoption by family or tribal
members. [Fn. 17] The grandparents make two separate arguments:
(i) that the superior court placed inordinate weight on J.G.'s bond
with P.S., ignoring other relevant factors that favored adoption by
the grandparents; and (ii) that the BIA guidelines set forth the
only factors that the superior court should have considered. These
arguments will be discussed in turn.
First, the grandparents argue that the superior court
placed inordinate weight on one factor, and failed to consider
other factors that "heavily favored" the grandparents as adoptive
parents. C.L. and C.L. note that the superior court heavily relied
on a factor that favors P.S. -- specifically, the strong bond that
has developed between P.S. and J.G. [Fn. 18] The grandparents then
claim that the superior court should have considered other factors
-- factors that together outweigh the already existing bond between
J.G. and P.S. Specifically, the grandparents claim that the
superior court failed to recognize: (i) the need to raise the
sisters together, in one household; (ii) DFYS's failure to consider
the grandparents when searching for potential adoptive parents;
(iii) the grandparents' particular ability to meet J.G.'s cultural
needs as a Native child; and (iv) the fact that J.G. had no
"extraordinary" physical or emotional needs that could only be met
by her bond with P.S.
However, the superior court did consider these factors,
and concluded that, combined with the other factors, the weight of
the evidence favored adoption by P.S. The superior court
explicitly considered the desirability of keeping the sisters
together; however, the court concluded that, because the sisters
have not bonded with the same care giver, this consideration is
outweighed by other factors. [Fn. 19] And the grandparents were
considered as potential adoptive parents by both the superior court
and by social workers involved in the case. Also, the court
considered the cultural needs of J.G. and concluded that P.S. has
demonstrated a capacity to expose J.G. to Native culture, and that
C.L. and C.L. will continue to play a role as grandparents in
J.G.'s cultural exposure. Lastly, the court certainly considered
the bond between J.G. and P.S. and its relationship to J.G.'s
emotional and physical needs. [Fn. 20] The four factors cited by
the grandparents were fully considered by the superior court, and
we cannot say that the court's analysis of these factors was an
abuse of discretion.
C.L. and C.L. separately argue that the only factors that
the superior court should have considered are the factors listed in
the Bureau of Indian Affairs Guidelines:
(i) The request of the biological parents or
the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional
needs of the child as established by testimony of a qualified
expert witness.
(iii) The unavailability of suitable families
for placement after a diligent search has been completed for
families meeting the preference criteria.[ [Fn. 21]]
The grandparents cite a decision of the Montana Supreme Court, In
re C.H., [Fn. 22] in which that court considered whether there was
good cause, in an adoption proceeding, to deviate from ICWA
placement preferences. The court in C.H. held that, when ICWA
applies, the three BIA factors exclusively control and that a court
may not consider any other factors:
The [BIA] guidelines provide that a
determination of good cause to avoid the preferences "shall be
based on one or more of" three stated factors. . . . [We agree]
that, in light of the plain language used in the guidelines, the
three expressly stated [BIA] factors cannot be interpreted as
merely illustrative of the circumstances which may constitute good
cause. Rather, they are the only circumstances constituting good
cause to avoid the [26 U.S.C.] sec. 1915(a) adoptive placement
preferences. We conclude the District Court erred in determining
that the factors set forth in the guidelines and the BIA's related
commentary are merely examples, and not an exhaustive listing, of
circumstances which constitute good cause.[ [Fn. 23]]
The court treated the bond between the child and the prospective
adoptive parents as only relevant if it rose to the level of an
"extraordinary emotional need," under the second BIA guideline.
[Fn. 24] And the court in C.H. held that it was also improper to
consider separately the "best interests of the child" because,
under ICWA, it is presumed that the child's "best interests" are
met by adherence to ICWA and the exclusive BIA guidelines. [Fn. 25]
However, we have rejected the rationale underlying the
Montana Supreme Court's decision in C.H. We do not agree that the
BIA factors are exclusively controlling. In In re Adoption of
F.H., [Fn. 26] we stated that the BIA Guidelines "do not have
binding effect," although a court may look to them for guidance.
[Fn. 27] Whether there is good cause to deviate in a particular
case depends on many factors including, but not limited to, the BIA
guidelines. [Fn. 28] We recognize that child adoption proceedings
are highly context-sensitive, and that different adoption cases
will vary factually. As we have stated previously, the best
interests of the child must be paramount in these proceedings. [Fn.
29] Therefore, the superior court did not err by relying on a
broad range of factors, including the BIA guidelines, and by
primarily stressing J.G.'s best interests. [Fn. 30]
2. The superior court properly awarded adoption of
S.G. to R.K. and J.A.
The superior court awarded S.G. to R.K. and J.A. on the
basis that they had adoption placement preference rights under
ICWA, 25 U.S.C. sec. 1915(a). [Fn. 31] ICWA applies and is
controlling because both S.G. and J.G. qualify as "Indian children"
under ICWA. Our review of the superior court's interpretation of
ICWA is de novo. [Fn. 32]
In deciding the issue of S.G.'s adoption, the court
considered the adoptive placement preferences demanded by ICWA:
In any adoptive placement of an Indian child
under State law, a preference shall be given, in the absence of
good cause to the contrary, to a placement with (1) a member of the
child's extended family; (2) other members of the Indian child's
tribe; or (3) other Indian families.[ [Fn. 33]]
The superior court held that both the grandparents (C.L.
and C.L.) and the prospective adoptive parents (R.K. and J.A.)
qualified as "members of the child's extended family" under 25
U.S.C. sec. 1915(a), giving them both equal ICWA placement
preference
rights. The superior court decided between them on the basis that
S.G. had already formed a relationship with, and bonded with, R.K.
and J.A., and the same could not be said for C.L. and C.L.
The grandparents claim that the superior court erred in
interpreting ICWA so as to make R.K. and J.A. "members of the
child's extended family" with ICWA preference rights. However, the
superior court did not err in making this determination. The court
found that R.K. is S.G.'s second cousin once removed by marriage.
Even though this family relationship is distant, the court noted
that, under Yupik tradition, kinship relationships can be
"activated" by conduct including providing food and shelter. C.L.
and C.L. did not counter this with any evidence that R.K. was not
a member of S.G.'s extended family. Therefore, the superior court
properly found that R.K. and J.A. were extended family members with
adoption preference right under ICWA.
C.L. and C.L. also claim that, given that both parties
have equal preference rights under ICWA, the superior court erred
by favoring R.K., a distant relative of S.G., over C.L. and C.L.,
who are closer relatives. The superior court correctly noted that
25 U.S.C. sec. 1915(a) does not set forth any order of preference
among "extended family members" who seek to become prospective
adoptive parents. The superior court made its decision based on
its assessment of S.G.'s existing relationship with R.K. and J.A.
The grandparents claim that, under Yupik tradition, placement with
closer relatives is required. However, the grandparents failed to
introduce any evidence to support this claim. An expert, Dr.
Phyllis Morrow, testified that the majority of Yupik adoptions are
by grandparents. But she explicitly refused to state that, under
Yupik custom, there is any preference for grandparents over other
more distant relatives. Therefore, the superior court properly
held that both the grandparents and R.K. and J.A. have preference
rights under ICWA. The superior court did not err by choosing
between these parties based on its assessment of the best interests
of S.G.
C. The Superior Court Did Not Abuse Its Discretion by
Failing to Grant the Grandparents Formal Visitation Rights.
C.L. and C.L. argue that, if P.S. was properly awarded
adoption of J.G., the grandparents should have been granted formal
visitation rights. Although the superior court found that it was
in J.G.'s best interests to "maintain her relationship with . . .
her grandparents," the superior court did not allow the
grandparents formal visitation rights. Rather, the court stated:
[P.S.] has demonstrated the willingness and
ability to maintain these contacts and relationships for the minor
child and the Court is confident she will do so in the future.
[P.S.] should have the discretion as [J.G's] parent to determine
the circumstances and frequency of such contacts as is in her best
interests. It is not necessary or in the minor's best interests to
enter a specific order regarding visitation in the adoption decree.
We review this decision for abuse of discretion. [Fn. 34]
Alaska's adoption statutes explicitly permit "visitation
between the adopted person and that person's natural parents and
other relatives." [Fn. 35] Visitation rights will not be granted
if they do not serve the child's best interests. [Fn. 36]
In their opposition to P.S.'s proposed findings of fact
and conclusions of law, the grandparents requested that the
superior court include visitation rights in the adoption decree.
The grandparents claim that leaving visitation to P.S.'s
discretion rather than guaranteeing such rights in a formal court
order constitutes an abuse of discretion. But they do not
challenge the court's findings that P.S. has facilitated such
visitations in the past and would continue to do so in the future.
The record firmly supports these factual findings. If P.S. does
not follow through with these intentions, the grandparents could
then petition the court for visitation rights due to a "change in
circumstances" in accordance with AS 25.20.065(b)(2). Therefore,
we cannot say that the failure to grant the grandparents formal
visitation rights was an abuse of discretion.
D. The Superior Court Did Not Abuse Its Discretion by
Awarding Partial Attorney's Fees to P.S.
The grandparents also challenge the superior court's
award of attorney's fees to P.S. P.S. requested under Civil Rule
82(b)(2) an attorney's fees award of $1,845, or thirty percent of
her $6,150 total fees. Over opposition, the superior court awarded
$1,000 in attorney's fees. The grandparents claim that this award
is unreasonable because (1) P.S.'s $2,000 federal adoption subsidy
covers adoption costs including attorney's fees, and (2) the
grandparents' intervention did not increase P.S.'s legal work. We
review this award for abuse of discretion. [Fn. 37]
Even if the grandparents' claim about the subsidy is
correct, the award of attorney's fees remains proper. Assuming
that P.S. could apply the $2,000 subsidy to attorney's fees, [Fn.
38] her remaining "actual attorney fees" [Fn. 39] would still equal
$4,150. The $1,000 fee award made by the superior court would
still fall well below the thirty percent of actual fees
contemplated by Rule 82(b)(2).
The grandparents' claim that their intervention did not
increase P.S.'s legal work is not supported by the record. There
is instead evidence that their intervention greatly increased the
quantity of testimony at the hearing and written work submitted,
and therefore increased the legal work required by P.S. Therefore,
we cannot say that the award of attorney's fees to P.S. was an
abuse of discretion.
E. The Superior Court Did Not Abuse Its Discretion by
Appointing Sonia Mazurek as the Guardian Ad Litem for S.G.
The grandparents also claim that the superior court
abused its discretion by appointing a biased guardian ad litem,
Sonia Mazurek, for S.G. We review this decision for abuse of
discretion. [Fn. 40]
The grandparents argue that the court-appointed guardian
ad litem Sonia Mazurek was biased. They cite as bias Mazurek's
prior guardian ad litem status during the children's children in
need of aid cases, her participation in S.G.'s placement with R.K.
and J.A., and her purported focus on J.G.'s best interests rather
than S.G.'s. [Fn. 41]
However, these claims of bias are primarily complaints
about Mazurek's ultimate recommendations: splitting up the children
and placing S.G. with R.K. and J.A. Mazurek's conclusions reflect
concern for S.G.'s best interests rather than any bias for R.K. and
J.A. or against the grandparents. Specifically, Mazurek in her
report concluded that S.G. had bonded to R.K. and J.A. and that it
was in S.G.'s best interests to be adopted by that couple. Rather
than being biased, Mazurek fulfilled her duty to "exercise [her]
best professional judgment on what disposition would further the
best interests of the child, [her] client, and at the hearing
vigorously advocate that position before the court." [Fn. 42]
There was no abuse of discretion.
V. CONCLUSION
Because the superior court did not commit any error in
(A) declining to consolidate the separate cases of J.G. and S.G.,
(B) awarding the adoptions of J.G. and S.G. to, respectively, P.S.,
and R.K. and J.A., (C) refusing to award C.L. and C.L. formal
visitation rights, (D) awarding P.S. partial attorney's fees, and
(E) appointing Sonia Mazurek as the guardian ad litem for S.G., we
AFFIRM the decision of the superior court in all respects.
FOOTNOTES
Footnote 1:
The April 28, 1999 order also terminated the parental rights
of J.G.'s biological father, A.D., and S.G.'s biological father,
J.H. Both of the fathers abandoned the children.
Footnote 2:
14 P.3d 946 (Alaska 2000).
Footnote 3:
See id. at 2-7.
Footnote 4:
See L.G. v. State, Dep't of Health & Social Servs., 14 P.3d
946 (Alaska 2000).
Footnote 5:
See Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999) (award
of attorney's fees); J.F.E. v. J.A.S., 930 P.2d 409, 411 (Alaska
1996) (denial of visitation rights); Foltz-Nelson Architects v.
Kobylk, 749 P.2d 1347, 1349 n.2 (Alaska 1988) (denial of motion to
consolidate); W.E.W. v. D.A.M., 619 P.2d 1023, 1025 (Alaska 1980)
(appointment of guardian ad litem).
Footnote 6:
See A.M. v. State, 945 P.2d 296, 304 n.10 (Alaska 1997).
Footnote 7:
See Adoption of N.P.S., 868 P.2d 934, 936 (Alaska 1994).
Footnote 8:
See id.
Footnote 9:
See Foltz-Nelson Architects v. Kobylk, 749 P.2d 1347, 1349 n.2
(Alaska 1988).
Footnote 10:
ICWA demands the following placement preferences:
In any adoptive placement of an Indian child
under State law, a preference shall be given, in the absence of
good cause to the contrary, to a placement with (1) a member of the
child's extended family; (2) other members of the Indian child's
tribe; or (3) other Indian families.
25 U.S.C. sec. 1915(a) (1983).
P.S., a non-Native single woman, does not qualify for any
of the preference groups under 25 U.S.C. sec. 1915(a): she is not
(1)
a member of J.G.'s extended family, (2) another member of J.G.'s
tribe, or (3) Native. Therefore, 25 U.S.C. sec. 1915(a) demands
that
there be "good cause" to award adoption of J.G. to P.S.
Footnote 11:
See In re Adoption of F.H., 851 P.2d 1361, 1364 (Alaska 1993).
Footnote 12:
N.P.S., 868 P.2d at 936 (quoting Guidelines for State Courts,
Indian Child Custody Proceedings, 44 Fed. Reg. 67,594 sec. F.3
(1979)).
Footnote 13:
F.H., 851 P.2d at 1363-64.
Footnote 14:
See N.P.S., 868 P.2d at 936.
Footnote 15:
See id. at 934, 936.
Footnote 16:
See id.
Footnote 17:
See 25 U.S.C. sec. 1915(a) (1983).
Footnote 18:
Although the grandparents claim that the court relied only on
(i) the bond between P.S. and J.G., and (ii) the fact that J.G. had
been through multiple placements in reaching its conclusions, the
court in fact relied on multiple factors, as discussed above.
Footnote 19:
As the court stated: "[C.L. and C.L.] have expressed a desire
to keep [J.G.] together with her sister [S.G.], and adopt both of
the girls. Unfortunately, [J.G.] and [S.G.] have not bonded with
the same care giver. As important as it is to keep siblings
together, that consideration is outweighed in this matter by the
need for consistency and stability in [J.G.]'s life and the need to
maintain the only bond that [J.G] has been able to establish in her
life."
Footnote 20:
The grandparents argue in part that the court misapplied this
factor by deviating from the BIA guidelines. This issue is fully
discussed below.
Footnote 21:
N.P.S., 868 P.2d at 936 (quoting Guidelines for State Courts,
Indian Child Custody Proceedings, 44 Fed. Reg. 67,594 sec. F.3
(1979)).
Footnote 22:
997 P.2d 776 (Mont. 2000).
Footnote 23:
Id. at 782 (internal citations omitted).
Footnote 24:
Id. at 783; 44 Fed.Reg. 67,594 (1979).
Footnote 25:
C.H. at 784.
Footnote 26:
851 P.2d 1361 (Alaska 1993).
Footnote 27:
Id. at 1364; see also N.P.S., 868 P.2d 934, 936 (Alaska 1994).
Footnote 28:
See In re Adoption of F.H., 851 P.2d at 1363-64. See also
L.G., 14 P.3d at 954-55. Other courts have also concluded that the
BIA guidelines are not binding on courts interpreting ICWA. See
Michael J., Jr. v. Michael J., Sr., 7 P.3d 960, 965 (Ariz. App.
2000) (noting that, "for assistance in interpreting ICWA, a state
court may rely on the Act's interpretative guidelines drafted by
the Bureau of Indian Affairs") (emphasis added); In re Dependency
of E.S., 964 P.2d 404, 409 (Wash. App. 1998) ("The BIA guidelines
have no binding legislative effect . . . . The legislative history
of the ICWA indicates that the reason the phrase, "good cause to
the contrary" is not defined is to provide state courts with
flexibility in determining the disposition of a child custody
proceeding involving an Indian child."); In re Michael G., 74 Cal.
Rptr. 2d 642, 651 (Cal. App. 1998) (noting that the BIA guidelines
remained unpublished because a binding legislative effect was not
intended).
Footnote 29:
See N.P.S., 868 P.2d at 936.
Footnote 30:
This result is also consistent with our recent opinion in L.G.
v. State, Department of Health & Social Services, 14 P.3d 946
(Alaska 2000), in which we affirmed the termination of L.G.'s
parental rights and found that there was good cause to deviate from
ICWA pre-adoptive preferences under 25 U.S.C. sec. 1915(b) to place
J.G. with foster mother P.S. In L.G., we affirmed the principle
that the best interests of the child are also paramount in making
pre-adoptive placement determinations under ICWA. Id. at 21.
Footnote 31:
The superior court alternately held that even if R.K. and J.A.
did not have ICWA preference rights for adoption, there was good
cause to deviate from ICWA preferences. Because we today affirm
the holding that R.K. and J.A. had ICWA preference rights, we need
not reach the merits of the alternative holding.
Footnote 32:
See A.M. v. State, 945 P.2d 296, 304 n.10 (Alaska 1997).
Footnote 33:
25 U.S.C. sec. 1915(a) (1983).
Footnote 34:
See J.F.E. v. J.A.S., 930 P.2d 409, 411 (Alaska 1996).
Footnote 35:
AS 25.23.130. Contrary to the grandparents' argument, AS
25.20.065(a) does not apply to the present case. See AS
25.20.065(b) (stating that "a grandparent may petition under this
section only if (1) the grandparent did not request the court to
grant visitation rights during the pendency of [adoption]
proceedings under . . . AS 25.23").
Footnote 36:
See In re Adoption of A.F.M., 960 P.2d 602, 605-06 (Alaska
1998).
Footnote 37:
See Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).
Footnote 38:
The grandparents are probably not correct, because the subsidy
is intended to cover costs other than attorney's fees as well.
Footnote 39:
Alaska R. Civ. P. 82(b)(2).
Footnote 40:
See W.E.W. v. D.A.M., 619 P.2d 1023, 1025 (Alaska 1980).
Footnote 41:
The grandparents also argue that Mazurek violated her duty of
independent evaluation by substantially relying on DFYS
investigations. But the record cited by the grandparents does not
reflect that Mazurek relied substantially on DFYS investigations.
Instead, DFYS relied on Mazurek.
Footnote 42:
Veazey v. Veazey, 560 P.2d 382, 387 (Alaska 1977).
