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Adoption of: Sara J., Joel J., and Morris J. (11/10/2005) sp-5957
Adoption of: Sara J., Joel J., and Morris J. (11/10/2005) sp-5957
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| In the Matter of the Adoption
of: | ) Supreme Court Nos. S-
11301/11312 |
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SARA J., JOEL J., and MORRIS J., | ) Superior Court
No. 4BE-03-64/65/66 PA |
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| ) |
|
Minor Children. | ) O P I N I O
N |
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| ) |
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[No.
5957 - November 10, 2005]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Eric D. Johnson, Association of
Village Council Presidents, Bethel, and Mark
Regan, Alaska Legal Services Corporation,
Bethel, for Appellants Native Village of
Kasigluk, Frank B., and Tonya B. Mary Ann
Lundquist, Assistant Attorney General,
Fairbanks, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee State of
Alaska, Department of Health and Social
Services. Michele Power, Angstman Law
Office, Bethel, for Appellee Matilda W.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
BRYNER, Chief Justice, concurring.
I. INTRODUCTION
Matilda W., a caucasian living in Bethel, petitioned to
adopt three sibling Native children. The superior court granted
her petitions over the objections of the Native Village of
Kasigluk and a Native couple who were interested in adopting the
children. The Indian Child Welfare Act1 (ICWA) establishes
preferences for placing an Indian child within the childs
extended family, with other members of the childs tribe, or with
other Indian families.2 The prevailing social and cultural
standards of the Indian community apply in meeting the preference
requirements.3 A court may deviate from these preferred
placements only upon a showing of good cause.4
Do the prevailing social and cultural standards also
govern the good cause determination? We hold that they do not,
but that they remain relevant if the good cause inquiry raises
questions about the suitability of a statutorily preferred
placement. They may also inform, but need not control, any
determination of whether a childs special needs or other
circumstances constitute good cause to deviate from the
preferences.
Because the superior courts good cause findings in this
case are supported by the evidence and do not implicate the
suitability of a preferred placement, we affirm its determination
that there is good cause to deviate from the preferences. We
therefore affirm the decrees granting Matilda W.s adoption
petitions.
II. FACTS AND PROCEEDINGS
Sara J., Joel J., and Morris J. are the biological
children of Isabel B. and Roger J., who were members of the
Native Village of Hooper Bay and the Native Village of Kasigluk,
respectively.5 The oldest child was born in 1994; the youngest
was born in 1999. The parental rights of Isabel and Roger were
terminated in January 2003.
Sara and Morris first entered state custody in 1997 and
were placed with a relative in Kasigluk for a year and a half.
They were briefly returned to their parents, but were removed
soon after Joels birth. Joels medical problems required that he
be close to a hospital, and he was placed in a Bethel home, and
then with Matilda W., an unrelated caucasian woman living in
Bethel. Sara and Morris later rejoined Joel when they were
placed with Matilda after the Alaska Office of Childrens Services
(OCS), formerly known as the Alaska Division of Family and Youth
Services, received reports of harm while they were placed with a
relative in Bethel.
OCS continued to seek a workable relative placement for
the J. children, next placing them with Jake and Ruby B., the
childrens maternal uncle and aunt. After Joel was hospitalized,
OCS removed him from that placement, placing him again with
Matilda in January 2002. Sara and Morris joined him there a
month later.
Frank and Tonya B., another maternal uncle and aunt,
became interested in having the J. children placed with them, and
sought a foster licensing in the summer of 2003. Matilda
petitioned to adopt the three J. children in July 2003.
The Native Village of Kasigluk, as the tribe with the
most significant contacts, intervened pursuant to Alaska Adoption
Rule 12(a) and opposed Matildas three adoption petitions. The
superior court conducted a six-day trial on whether to grant
Matildas petitions. The superior court found good reason to
deviate from ICWA placement preferences and granted Matildas
petitions. The superior court found that the children have
special educational and behavioral needs that are best met by
Matilda in Bethel, that the childrens ability to attach would be
irrevocably destroyed and severe damage would result if they were
removed from Matildas care, and that it was in the childrens best
interests to grant Matildas adoption petitions. It also found
that Matilda could adequately meet the childrens cultural needs
in Bethel and that the state had made active efforts to place the
children in a long-term preferred placement. The superior court
issued decrees of adoption for each child.
The Native Village of Kasigluk and Frank and Tonya B.
appeal, arguing that the good cause determination under ICWA must
be governed by the prevailing social and cultural standards of
the Indian community and that the superior courts findings were
unsupported by the evidence. The appellants are represented by
the same counsel. We refer to them collectively as the tribe.
The state and Matilda W. are appellees.
III. DISCUSSION
A. Standard of Review
We review a finding of good cause to deviate from ICWA
preferences for abuse of discretion.6 It would be an abuse of
discretion for a superior court to consider improper factors or
improperly weigh certain factors in making its determination.7
Determining whether the superior courts findings comport with the
requirements of ICWA raises a question of law that we decide de
novo.8 We review findings of fact for clear error.9 A factual
finding is clearly erroneous when we are left with a definite and
firm conviction that the trial court has made a mistake.10
B. The Prevailing Social and Cultural Standards of the
Relevant Indian Community Have Only Limited Application
in Determining Whether Good Cause Exists To Depart from
ICWAs Adoptive Preferences.
Congress enacted the Indian Child Welfare Act out of
concern over the unwarranted break-up of Indian families caused
by removal of children by state authorities and the placement of
an alarmingly high percentage of such children with non-Indian
foster and adoptive placements.11 In an effort to reverse this
trend, ICWA specifies preferred adoptive placements for Indian
children.12 Thus, 25 U.S.C. 1915(a) provides:
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.
Furthermore, Congress intended in enacting ICWA that white,
middle-class standards not be used in determining whether
preferred placements are suitable.13 Instead, 1915(d) provides:
The standards to be applied in meeting the
preference requirements of this section shall
be the prevailing social and cultural
standards of the Indian community in which
the parent or extended family resides or with
which the parent or extended family members
maintain social and cultural ties.
The three preferred placements listed in 1915(a)
comprehensively rank the different possible family and Indian
placements. Only for good cause may a state deviate from the
three preferred placements, i.e., approve a placement with
someone who is neither extended family nor Indian.14 The
prevailing social and cultural standards of the Indian community
described in 1915(d) unquestionably apply to disputes about the
suitability of the preferred placements listed in 1915(a). We
will sometimes refer to these as community, prevailing,or social
and cultural standards.
But these standards do not override or change the
preference requirements of 1915. Under 1915(d) the prevailing
standards are to be used in meeting the preference requirements,
not to override them. This means that within a preference tier
the prevailing standards are to be used in selecting a placement.
But as the statue is structured, it appears that social and
cultural standards taken alone cannot provide for a different
order of preference. In other words, community standards
notwithstanding, an extended family member entitled to first-tier
preference under 1915(a) will occupy a higher tier of preference
than a nonextended family member of the childs tribe entitled to
a second-tier of preference under the same subsection. Of course
community standards may be reflected in a tribal resolution
setting a different order of preference under 1915(d) and if
this is done the new order of preference is legally established.
Furthermore, the standards are to be used in determining the
suitability or unsuitability of a prospective placement. They
may, for example, support a conclusion that a higher-tier
potential custodian is unsuitable, thus clearing the way for a
lower-tier custodian.
The tribes main contention on appeal is that these
standards also apply to any dispute under 1915(a) about whether
good cause exists to deviate from those placement preferences.
The tribe argues that the superior court erred by failing to
consider the prevailing social and cultural standards of the
Village of Kasigluk when it decided whether there was good cause
to grant Matildas petitions for adoption. In considering whether
these standards apply to the good cause determination, we look to
the statutory language, legislative history,15 the interpretation
given the statute by the Bureau of Indian Affairs (BIA), and
relevant case law.16
Because we read most of these sources, particularly the
text of the statute and the BIAs interpretation, to indicate that
the prevailing social and cultural standards of the Indian
community are not generally applicable to the good cause
determination, we ultimately disagree with the tribe.
Nonetheless, because ICWAs purpose and the BIAs interpretation
make the prevailing social and cultural standards relevant to
the good cause determination insofar as this determination may
implicate the suitability of a statutorily preferred placement
candidate, many of the tribes concerns are minimized.
Furthermore, the superior court may refer to the prevailing
social and cultural standards of the Indian community in
determining whether a childs special needs or other circumstances
are sufficient to establish good cause to deviate from 1915(a)s
placement preferences.
The plain language of 1915 suggests that the
prevailing social and cultural standards do not apply to the good
cause determination. Subsection 1915(d) dictates that the
prevailing Indian standards are to be applied in meeting the
preference requirements of this section.17 Subsection 1915(a)
mandates that these preferences be applied in the absence of good
cause to the contrary.18
The tribe, in arguing that ICWAs plain language
requires application of the standards to the good cause
determination, contends that [t]he preference requirements of
1915 of the ICWA can be met either by giving an adoptive
preference to a priority placement, or by showing that there is
good cause to the contrary. (Emphasis in original.) The tribe
argues that the phrase meeting the preference requirements
plainly includes the good cause inquiry and that we should not
create an exemption from the prevailing social and cultural
standards of the Indian community for the good cause
determination.
But we cannot agree with the tribe and the concurring
opinion that the phrase meeting the preference requirements in
1915(d) plainly includes 1915(a)s good cause inquiry.19 In our
view, a court applies the preference requirements by determining
the suitability of potential preferred placements using the
prevailing social and cultural standards of the Indian community.
Although they are part of a common statutory scheme,
inquiries into suitable preferred placements are separate from
inquiries into good cause. It is not plain from the language of
the statute that standards applicable to the issue of the
suitability of preferred placements must necessarily also apply
to the issue of good cause. Rather, accepted principles of
statutory interpretation suggest that the opposite is true.
Congress specified in 1915(d) that the prevailing
social and cultural standards are the standards to be applied in
meeting the preference requirements, but did not specify that
these standards be applied to the good cause inquiry. Its
failure to do so suggests that it did not intend the standards to
apply to the good cause inquiry. Had Congress intended the
states to apply the prevailing Indian standards when determining
whether there is good cause to deviate from the preferences, we
think it would have expressed itself more clearly.20 For example,
1915(d) could have stated generally that the prevailing Indian
standards apply to disputes under 1915(a). Or it could have
specified that they apply in determining whether there is good
cause. Instead, by dealing with non-Native placements in the
good cause clause, Congress appears to have intended that
questions of the need for non-Native placements be conceptually
separate from disputes about whether a preferred placement is
suitable.21
The tribe also argues that in interpreting statutes
that protect the rights of Native Americans, this court must
resolve any ambiguity in favor of Native Americans.22 According
to the BIA, Congress left the primary responsibility for
interpreting ICWA to the courts deciding Indian child custody
cases.23 We have recognized that other authorities interpreting
the same provisions may also be useful.24 In dealing with
statutes protecting the rights of Native Americans, the standard
principles of statutory construction do not have their usual
force.25 But this principle is not a license to disregard the
clearly expressed intent of Congress, nor does it permit reliance
on ambiguities that do not exist.26 United States Supreme Court
opinions interpreting statutes protecting the rights of Native
Americans have not completely disregarded traditional precepts of
statutory interpretation.27
A fair appraisal of 1915(a) and (d) demonstrates a
congressional intent to apply the prevailing social and cultural
standards of the Indian community to determinations of
suitability of potential preferred placements, but not to
determinations of good cause to deviate from the preferences.
ICWAs context points to the same conclusion.
The context of ICWAs enactment suggests that the
prevailing social and cultural standards of the Indian community
do not apply to the good cause determination. The House Reports
analysis of section 5, later codified as 1915(d), stated that
[a]ll too often, State public and private agencies, in
determining whether or not an Indian family is fit for foster
care or adoptive placement of an Indian child, apply a white,
middle-class standard which, in many cases, forecloses placement
with the Indian family.28 The House Report also stated that
[d]iscriminatory standards have made it virtually impossible for
most Indian couples to qualify as foster or adoptive parents,
since they are based on middle-class values.29 Congress was
clearly worried about the application of white, middle-class
values to suitability determinations. Because the good cause
inquiry is distinct from the suitability inquiry for preferred
placement candidates, it falls outside the purview of Congresss
intent for the prevailing social and cultural standards of the
Indian community.
The tribe argues that the same context supports its
proposed interpretation. Congress found that in placing Indian
children, state courts and agencies have failed to recognize the
essential tribal relations of Indian people and the social and
cultural standards prevailing in Indian communities and families.30
Congress enacted ICWA in large measure to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
minimum Federal standards for . . . placement . . . which will
reflect the unique values of Indian culture.31 The use of the
prevailing social and cultural standards of the Indian community
to determine the suitability of preferred placements furthers
this end and addresses the specific concern voiced by Congress.
We are not persuaded that applying the prevailing social and
cultural standards of the Indian community to the good cause
determination is necessary to advance ICWAs purposes.
Subsection 1915(a) establish[es] a Federal policy that,
where possible, an Indian child should remain in the Indian
community, but is not to be read as precluding the placement of
an Indian child with a non-Indian family.32 But in cases
contested by Indian communities, this could be precisely the
effect of applying the communities prevailing social and cultural
standards to the good cause determination.33 There was evidence
here that Yupik standards dictate that Yupik children should
invariably be raised by Yupik people. Applying the prevailing
social and cultural standards to the good cause determination
would effectively nullify the good cause exception in any case in
which a tribe intervened under Alaska Adoption Rule 12(a) and
offered equivalent evidence.34 Such a result would be contrary to
accepted precepts of statutory interpretation.
The tribe notes that almost every ICWA case involves a
determination of good cause. This suggests to the tribe that
applying non-Native standards to the good cause determination
would create a loophole, eviscerating the protections of ICWA.
The tribes fear is misplaced. First, as outlined below, in
determining whether good cause exists, white, middle-class
standards may not be applied to reassess the suitability of a
preferred placement. Second, under Alaska law the burden of
showing good cause is on the party proposing placement outside
the statutory preferences.35 The BIA Guidelines for State Courts
note that this allocation of the burden of proof is necessary
[s]ince Congress has established a clear preference for
placements within the tribal culture.36 (The BIA issued the
Guidelines to provide nonbinding guidance to state courts
interpreting ICWA.37) We are satisfied that these protections,
together with the sound judgment of Alaskas trial courts, are
sufficient to preserve ICWAs protections for Indian children and
communities.
The tribe suggests that our cases are not inconsistent
with applying the prevailing social and cultural standards of the
Indian community to the good cause determination, but only
reflect the lack of evidence of those standards. Thus, it
contends that applying these standards is required in this case
where, for the first time, the tribal-standards mandate of
1915(d) [is] directly at issue. The tribes approach is
problematic in several respects. First, the tribe offers no
criterion by which to measure whether sufficient evidence of the
prevailing social and cultural standards of the Indian community
has been presented to determine good cause based on those
standards. Second, it would create unnecessary uncertainty in
litigation, as the state and potential non-Native placements
could not be certain of the standard by which they had to prove
good cause until the trial was well underway. This would
prolong litigation in cases which require expeditious resolution.38
The tribe also argues that cases from other
jurisdictions support its contention that the prevailing social
and cultural standards of the Indian community apply to the good
cause determination. In Matter of Baby Boy Doe,39 the Idaho
Supreme Court addressed this question. After quoting the BIA
Guidelines regarding the good cause inquiry, the court stated
that
[i]n determining whether good cause existed,
the trial court rejected the arguments by the
adoptive parents counsel that the child is
old enough to request a preference; the child
has extraordinary physical needs mitigating
against the preferences; and that the
proposed Indian placement (with the maternal
aunt and uncle) is unsuitable. The trial
court demonstrated knowledge of applicable
legal standards in rejecting the adoptive
parents argument that negative social and
economic conditions on the reservation
constitute good cause. The trial court
correctly held that ICWA requires the court
to apply the prevailing social and cultural
standards of the Indian community.[40]
In Baby Boy Doe, the non-Native adoptive parents
mistakenly argued that negative social and economic conditions on
the reservation constituted good cause for departing from the
preferences.41 But these conditions would be relevant, if at all,
to the suitability of potential Native relative placements, and
as such had to be viewed in light of the prevailing social and
cultural standards of the Indian community. The courts language
does not suggest that the childs ability to request a preference
or the existence of extraordinary physical needs is governed by
the prevailing social and cultural standards of the Indian
community.42
The Baby Boy Doe court suggested that whether the
psychological need for permanence could be satisfied by a
relative placement should be analyzed in light of an Indian
standard.43 But the court ultimately affirmed the finding of good
cause based on the biological mothers preference, the certainty
of emotional trauma if the child was removed from the adoptive
parents, and the likelihood of emotional trauma if the child
encountered the father while living on the reservation.44 In
concluding that these considerations together constituted good
cause under the applicable legal standards, it did not discuss
them with reference to the prevailing social and cultural
standards of the Indian community.45 The court instead approved
of applying the prevailing social and cultural standards of the
Indian community primarily to the determination of suitability.46
Similarly, In re Jullian B. reversed a finding of good
cause because the trial court failed to consider several factors
in light of the prevailing social and cultural standards of the
Indian community.47 The social worker in that case was concerned
about the potential placements age, his inability to suggest a
person who could care for the minor if he became incapacitated,
his prior conviction for vehicular manslaughter of a child when
he was driving under the influence, his failure to rehabilitate
for many years . . . [and] his health and his lack of support
system . . . .48 None of these concerns implicated special needs
of the child. Instead, each of these factors was relevant to the
suitability of the potential Native relative placement, and thus
had to be considered in light of the prevailing social and
cultural standards of the Indian community.49 The court
ultimately reversed on other grounds,50 but never suggested that
the prevailing social and cultural standards of the Indian
community apply to anything determining the suitability of
preferred placements.
These cases recognize that the prevailing social and
cultural standards apply to determinations of the suitability of
preferred placements even if the suitability determinations arise
in the context of the good cause inquiry. We do not read these
cases as requiring that the prevailing social and cultural
standards of the Indian community apply to all aspects of the
good cause inquiry.
Our conclusion that the prevailing social and cultural
standards of the Indian community do not generally apply to the
good cause determination is supported by the BIA Guidelines,
which suggest three factors to consider in determining good
cause:
(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.[51]
As the Guidelines observe, the legislative history indicates that
the term good cause was designed to provide state courts with
flexibility in determining the disposition of a placement
proceeding involving an Indian child.52 This flexibility is not a
license to impose non-Native standards when courts consider the
suitability of statutorily preferred placement candidates.
Rather, it is an authorization to take the childs special needs
into account when determining whether good cause exists to place
the child outside the statutory preferences despite the existence
of an otherwise suitable home within the preferences.
Applying white, middle-class standards to the
suitability inquiry as an aspect of the good cause determination
could effectively read the preference requirements and the
prevailing social and cultural standards of the Indian community
out of the statute. This would occur if courts, while
determining whether there is good cause for deviating from the
statutorily preferred placements, could apply white, middle-class
standards to examine or reexamine the suitability of a Native or
relative placement deemed suitable under prevailing Indian social
and cultural standards. This is the very problem ICWA was
enacted to eliminate. Our holding today respects the purposes of
ICWA by preventing non-Native standards from being used to decide
that a preferred placement is not suitable.
The qualifications required of expert witnesses in our
ICWA cases reinforce this conclusion. In some parental rights
termination cases, experts with specialized knowledge of the
Native culture are needed because social workers without
expertise are unable to distinguish between the prevailing
standards of the Indian community and actual abuse and neglect.53
But so long as issues of cultural bias are not implicated,
experts need not have training in the cultural standards of the
Indian community.54 These rules reflect an implied judgment that
while the suitability of a Native household must be viewed in
light of the prevailing social and cultural standards of the
Indian community, courts are not compelled to analyze a childs
special needs according to those standards. Such needs would
demonstrate good cause if, as the superior court found here,
adequate facilities to address them were not available to the
preferred placement but were available to the non-preferred
placement.55
In determining whether a childs special needs rise to
the level that constitute good cause to deviate from the
preferences, the superior court may consider the prevailing
social and cultural standards of the Indian community. Courts
should be sensitive to any differences in the circumstances that
allow children to flourish in Native and non-Native communities.
But courts need not ultimately apply the prevailing social and
cultural standards of the Indian community in determining whether
the resources available to an otherwise-suitable preferred
placement are adequate to address the childs special needs.
The concurring opinion contends that the prevailing
social and cultural standards of the Indian community directly
apply to the good cause determination. This contention is
grounded on a perception of the role of the placement preferences
and the good cause determination fundamentally different from our
own. The concurring opinion suggests that the good cause
determination is a device for choosing between non-preferred
placements and suitable preferred placements.56 If this were
indeed the role of the good cause inquiry, we would agree that
the prevailing social and cultural standards of the Indian
community must govern.
But although it is correct that the word preference
generally connotes a choice between two options,57 we read ICWAs
structure and purpose to preclude choosing between preferred and
non-preferred placements if the preferred placement is suitable,
as measured by the prevailing social and cultural standards of
the Indian community. The existence of a suitable preferred
placement precludes any consideration of a non-preferred
placement unless good cause exists, for example, because another
preference has been expressed by the child or the childs
biological parents, or because the child has special needs that
cannot be met by an otherwise-suitable preferred placement.
The concurrence also contends that the courts
interpretation of 1915 creates an unrealistic dichotomy between
placement decisions and good cause determinations.58 It
characterizes the suitability determination required for a
preferred placement and the special needs assessment necessary
for a good cause determination as flip sides of the same coin.59
But that is not how the words of the statute treat them. The
statute expressly envisions good cause as an exception to the
general rule of preferred placements. As noted above, the
proponent of placing a child in a non-preferred placement bears
the burden of demonstrating that the childs special needs require
that placement. The concurrence is doubtless correct in saying
that any placement decision involves examining more than a
potential placements abstract ability to care for a hypothetical
child.60 But a good cause determination is nonetheless legally
and analytically distinct from a placement decision. It requires
extenuating circumstances beyond the typical considerations at
issue in a placement decision.
In holding that the prevailing social and cultural
standards of the Indian community apply to the good cause
determination only when it implicates a preferred placements
suitability, we recognize our disagreement with a decision of the
Minnesota Supreme Court. In Matter of Custody of S.E.G., that
court rejected a trial courts finding that the need for
permanence was an extraordinary emotional need and that adoption
was the only way to meet that need.61 On appeal, the court held
that evidence of a special need for permanence must be presented
by qualified experts with knowledge of the Indian community,
suggesting that permanency is defined differently in Native
American cultures.62 The court thus seemingly integrated the
prevailing social and cultural standards of the Indian community
of 1915(d) into the 1915(a) good cause analysis while leaving
open the possibility that the location of necessary treatment
services would not fall under 1915(d)s purview.63 Nevertheless,
we believe that the words of the statute, the context of the
legislation, and the BIA Guidelines support our holding.
C. Substantial Evidence Supported the Superior Courts
Findings.
The tribe argues that the superior courts findings were
not supported by substantial evidence. Many of its arguments
hinge on its contention, rejected above, that the superior court
erred by not applying the prevailing social and cultural
standards of the Indian community. The superior court was not
required to apply those standards, but we still review the tribes
factual contentions.
1. The superior court did not err in finding that
harm to the children from living outside the
village was outweighed by the potential harm from
being separated from Matilda.
The tribe asserts that the superior court erred in
finding that the damage to the J. children from being separated
from Matilda would outweigh the damage that severance from their
Yupik heritage would cause the children. The tribe asserts that
the Yupik standard gives less weight to the short-term disruption
that a removal from [Matildas] home might cause. The tribe
believes that this disruption is outweighed by the lack of a
compass and foundation in life that would result from the
children being separated from the life blood of their culture,
and that the children will melt like butter into the supportive
environment of [their] home and village community. This is
essentially an argument that the superior court should have
conducted a best interests of the child analysis using the
prevailing Yupik standards. But the childrens special needs do
not implicate the determination of suitability for a preferred
placement and need not be analyzed using the prevailing social
and cultural standards of the Indian community. The evidence
suggests that removing the children from Bethel and Matilda would
cause them special harm.64
Morris attends counseling in Bethel. His counselor,
Jennifer Cashion, testified that he would likely suffer some
regressive behavior if he had to change clinicians before a new
therapeutic relationship could be established. Dr. MacIan, a
clinical psychologist acquainted with the children and their
needs, testified that Morris needs structure. Cashion testified
that Morris exhibits symptoms of post-traumatic stress syndrome,
and Matilda and another witness testified to the devastating
impact another move would have on him. Sara has been diagnosed
with an unspecified adjustment disorder and meets criteria
designated for emotionally disturbed children. Saras former
counselor expressed both short- and long-term concerns for Sara
if she is moved. We also note that Matilda testified that Morris
told her that he wanted to be adopted by her.
There was evidence of the dangers inherent in raising
Indian children in non-Native households. Dr. Roll testified
that Native children raised in non-Native homes are at risk of
erosion of language skills, identity, and cultural confusion,
identity diffusion, and identification with the aggressor. But
Dr. MacIan testified that these concerns can be mitigated in this
case by taking advantage of opportunities in Bethel to encourage
a positive view of the childrens culture through contact with the
Yupik culture. As outlined below, Matilda has demonstrated a
willingness and ability to expose the children to Yupik culture.
In light of the evidence discussed above, we cannot say
that the superior court erred in finding that the damage that
would be caused by separation from Matilda implicated special
emotional needs, and together with the childrens behavioral and
educational needs, constituted good cause to deviate from the
preferences. Nor does the tribe argue that Matilda is ineligible
to adopt the children under state law.
2. The superior court did not err in finding that the
childrens special needs could be met in Bethel,
but not in the village.
The tribe also disputes the superior courts finding
that the childrens behavioral and educational needs could be met
better in Bethel by Matilda than in Chevak with Frank and Tonya
B.
Expert testimony established that the J. children have
special needs. Sara has been diagnosed with an unspecified
adjustment disorder and falls under criteria designated for
emotionally disturbed children. Morris has been diagnosed with
static encephalopathy and fetal alcohol spectrum disorder (FASD).
Joel has been diagnosed with static encephalopathy, is
hyperactive, exhibits poor short-term memory, and suffers from
developmental delays and behavioral problems. Both Morris and
Joel qualify for special education. Morris was in counseling at
the time of trial.
Jackson S., the tribes expert witness on raising
children with special needs in the village setting, testified
that he relied upon his twenty-eight-year-old and sixteen-year-
old sons, his grandchildren, his extended family, and various
services and workshops outside his village to help raise his
adopted daughter, diagnosed with fetal alcohol syndrome (FAS).
Tonya B.s familial support network is not so extensive,
consisting of Frank B.s three siblings and her niece. She also
stated that she would depend on her fourteen-year-old daughter
for help. Although Frank testified that there are helpers and
providers in the village for children with FAS, he had only
superficial familiarity with these services. And even if
treatment were available in the village, there is no evidence
that it would be as easily accessible as in Bethel.65
Neither did Tonya demonstrate a clear understanding of
the J. childrens needs. When asked what Morriss needs were, she
responded, Well, if he comes into our house . . . thats when Ill
find out what his needs are. She also assumed the J. children
would be easier to handle now that they are older, stating that
theyll be, like, mostly on their own with my children.
Matilda presented evidence that Bethel is well-equipped
to address the special needs of the children. Joels teacher
testified that Joel needs to be in special education programs,
and would benefit from being taught by certified teachers. She
expressed doubt that many preschool programs in villages were
taught by certified teachers. Morris attends counseling in
Bethel with his behavioral health clinician. But for village-
based clients, wellness counselors with less training than
Morriss current counselor provide the ongoing counseling. These
wellness counselors sometimes do not live in the villages. There
was evidence that if Morris had to change clinicians, there would
likely be some regressive behavior before a new therapeutic
relationship could be established. Sara also requires mental
health services to meet her needs.
A home study of Matildas home describes Bethel as
having a full range of health care, mental health care,
educational, religious, communications, and social services. The
childrens teachers indicated that Joel and Morriss special
education needs can be met by the Bethel school district.
Morriss counselors testimony suggests that Bethel also has the
behavioral health care facilities necessary to meet the J.
childrens needs. A 2002 Catholic Social Services adoption home
study noted Matildas ability to meet the childrens medical and
emotional needs. Morriss current and Saras former behavioral
health clinician indicated that the children have made gains in
therapy and behavior directly related to Matildas care. Morriss
former teachers agreed.
Based on this evidence, the superior court did not
clearly err in finding that the childrens special needs could be
met in Bethel, but not in the village.
3. The superior court did not err in finding that OCS
made adequate efforts under ICWA to provide a
statutorily preferred placement.
The tribe also argues that the superior court erred in
finding that OCS made adequate efforts under ICWA to provide the
children with a statutorily preferred placement. The tribe does
not assert that this argument depends on the application of the
prevailing social and cultural standards of the Indian community.
Four out of the eight placements for Morris and Sara
during the six years since their removal from their parents have
been with relatives.66 OCS compiled a list of eighteen potential
relative placements. It contacted the tribes thirty-two times,
not including contacts with individual relatives and the
biological parents. Ms. Short, the J. childrens original OCS
social worker, testified that she exhausted efforts to find
relative placements before placing the children with a non-Native
family. Ms. Weston-Smith, the OCS worker assigned to the case in
April 2003, testified that the tribes were informed at all times
that OCS was looking for permanent placement. She also testified
that OCS was guided by prevailing Yupik social and cultural
standards in its search for a suitable placement meeting the
preference criteria.
The childrens placement history also supports a finding
that OCS made active efforts to find preferred placements. OCS
initially placed Morris and Sara with a relative in Bethel but
soon removed them after discovering that the relative had a
history with child protective services. The children were then
placed with relatives in Kasigluk for eighteen months before
returning to their biological parents. After removal from their
biological parents care, Joels medical problems required him to
live close to a hospital, and he was placed in a non-Native
foster home. Morris and Sara were placed with relatives until
reports of harm required their removal and eventual placement
with Joel under Matildas care.
There was evidence that while the children were in
Matildas care, OCS continued to make substantial efforts to find
relative placements. OCS considered and rejected placements with
both paternal and maternal grandparents because the biological
parents and other family members with criminal histories were
living in those households. OCS eventually placed the children
with relatives Jake and Ruby B., but had to remove them when Joel
had to be hospitalized and Ruby B. informed OCS that the J.
children, together with five other children living with them,
were too much work for her. Other relatives were also
disqualified for placement based on either their own criminal
history or the criminal history of an adult living in the home.
OCS asked Frank and Tonya B. to be a temporary
placement in late 2000, but they declined, stating that it would
be too much work. Sometime between January and August of 2001,
OCS contacted them again to discuss permanent placement, but
Tonya again stated they did not want the J. children. The tribes
contention that OCSs failure to initiate more contact with Frank
and Tonya after being rebuffed twice shows a lack of adequate
efforts under ICWA is unconvincing. In January 2002 OCS
contacted the tribe and was informed by counsel that all relative
and tribal placements had been exhausted.
Based on this evidence, the superior court did not
clearly err in finding that OCS made active efforts to find a
statutorily preferred placement for the children.
4. The superior court did not err in finding that
Matilda could adequately meet the childrens
cultural needs in Bethel.
Finally, the tribe assigns error to the superior courts
finding that Matilda could adequately meet the J. childrens
cultural needs in Bethel. The tribe founds this argument on the
opinion of its expert witnesses on Yupik culture. The tribe
argues that occasional contacts are not enough, and that full
immersion in the culture is essential to all aspects of a Yupik
childs well-being. The tribes standard of adequacy would never
allow placement outside the tribe, no matter what the
circumstances. The tribes evidence on this point may be
persuasive in establishing a different order for statutorily
preferred placement options, where weight may be given to the
tribes preferences as expressed by resolution.67 But because this
aspect of the good cause inquiry does not implicate the
suitability of a preferred placement option, it is not governed
by the prevailing social and cultural standards of the Indian
community. Here, the suitability of Matilda, a non-preferred
placement, is governed by state law and state standards. The
superior court was therefore not bound to accept the
uncontradicted evidence of Yupik village social and cultural
standards as the tribe argues.
The tribe offered Mark Johns expert testimony about the
transmission of Yupik cultural values. He testified that a child
growing up in Bethel could learn Yupik culture and values with
exposure to language and Yupik elders, and adult male Yupik role
models for the boys. Sara is enrolled in Yupik immersion school
and speaks Yupik better than many of her Yupik friends at school.
Morriss school has Yupik classes two to three times a week and
tries to incorporate Yupik culture into the curriculum. Matilda
has spoken to a number of Yupik co-workers who are willing to
serve as male role models for the boys, including their uncle.
John also testified that a non-Yupik family would have
to make an extra effort, and would need a connection with Yupik
families willing to help, including taking the children to fish
camp. Matilda has contacted the Kasigluk Tribal Council about
the best way to maintain the childrens cultural awareness through
cultural activities. Matilda has also evinced willingness to
maintain contact between the J. children and their relatives.
The children currently have both non-Native and Yupik friends.
They regularly attended fish camp in the summer before trial, and
Sara has gone berry-picking. They also participate in Yupik
dance.
The parties presented conflicting expert testimony
about whether the childrens cultural needs could be met in
Bethel. Dr. Roll testified that the children could experience
several problems relating to cultural identity, including erosion
of language skills, identity confusion, cultural diffusion, and
identification with the aggressor. But Dr. Roll had neither
visited Bethel nor examined the J. children. Dr. MacIan is a
clinical psychologist familiar with Morris and Sara, the J.
childrens school, history, and home. Dr. MacIan testified that
many problems with cultural identity arise when a child has had
no contact with the non-dominant culture and then has to deal
with negative stereotypes after realizing that he or she belongs
to that group. Dr. MacIan testified that this was not a danger
for the J. children, who understand that they are Yupik. The
superior court evidently credited Dr. MacIans testimony. Its
determination of credibility between competing experts is a
factual finding, which we review for clear error.68 We are not
left with a definite and firm conviction that a mistake has been
made69 by the trial court in crediting Dr. MacIans testimony.
The tribe makes much of Matildas testimony to the
effect that the children cannot truly understand their culture
under her tutelage and with limited opportunity to participate in
village life. We interpret this to be merely a recognition that
this will be a difficult process and that while she can provide
some cultural opportunities, she cannot recreate the cultural
experience of living in a Yupik village. But this does not mean
that she will be unable to meet the childrens cultural needs, nor
does it disqualify her altogether from adopting the children.
In Adoption of N.P.S.,70 we held that good cause existed
to deviate from ICWAs preferences despite cultural disadvantages
when the non-preferred placement is minimally capable of
providing for [the childs] cultural needs.71 Matilda is much
better suited to meet the childrens cultural needs than the
placement challenged in N.P.S. There, we held that regular
contact with extended family and time spent in the village was
sufficient to give [the child] an understanding of the lifestyle
of the Yupik culture as well as promot[e] a positive image of
himself as an Alaskan Native.72 Matilda, in contrast, has
demonstrated the ability to utilize a range of resources to
introduce the children to their Yupik culture.
The superior court did not clearly err in finding that
Matilda could adequately meet the childrens cultural needs in
Bethel.
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts
finding that good cause existed to deviate from the statutory
preferences and its decrees of adoption for the J. children.
BRYNER, Chief Justice, concurring.
I disagree with the opinions reasoning and its
conclusion that ICWA 1915(d) applies only to the intra-tribal
portions of 1915(a)s placement requirements. In my view,
1915(d) required the superior court to use the Indian communitys
cultural and social values in deciding whether good cause existed
for the childrens adoptive placement in Matilda W.s home. I
would nonetheless reject the broad meaning of that provision
advocated by the tribe. I do not read 1915(d) to mean that
courts considering non-preferred placements must recognize and
enforce tribal values that disqualify anyone but an Indian
custodian from adopting an Indian child; nor do I read 1915(d)
as saying that courts are bound by expert testimony telling them
how an Indian communitys values should be applied to a given
case. Because my review of the record persuades me that the
superior court correctly applied ICWAs placement preference
requirements as I understand them, did not clearly err in its
factual findings, and did not abuse its discretion in finding
good cause for a non-preferred placement, I concur in affirming
the judgment.
ICWAs preference requirements are spelled out in
1915(a). This provision describes three levels of preference and
requires state courts to apply these preferences [i]n any
adoptive placement of an Indian child under State law unless the
court finds good cause to the contrary:
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
childs extended family; (2) other members of
the Indian childs tribe; or (3) other Indian
families.[1]
ICWA 1915(d) then commands that, in meeting the
preference requirements of [ 1915], courts must use the
prevailing social and cultural standards of the Indian community
in which the parent or extended family resides.2 Todays opinion
would read this command as being limited to adoptive placements
in Indian homes. In my view this reading is untenable. On its
face, 1915(d) applies to all preference requirements set out in
1915(a), including that subsections unequivocal requirement that
a good-cause determination be made before deviating from a
preferred placement.
Todays opinion advances no sound basis in the text or
congressional history of 1915 for reading 1915(d)s phrase
preference requirements as excluding the good-cause requirement
set out in 1915(a). The opinion finds its reading implicit in
1915(d)s language specifying that an Indian communitys standards
must be used in meeting the preference requirements of subsection
(a). Because this wording does not authorize Indian standards to
override the preference requirements, the opinion reasons,
subsection (d) only requires Indian standards to be used for
selecting a placement within a preference tier.3 But this
reasoning is circular because it posits its own conclusion: it
assumes at the outset that 1915(a)s good-cause requirement fails
to qualify as one of 1915(a)s preference requirements. If we
start from the textually more plausible assumption that the good-
cause determination is an integral part of subsection (a)s
preference requirements, then applying the good-cause test to
override an otherwise available preferred placement would result
in meeting the preference requirements.
The opinion similarly posits that 1915(d) applies only
to Indian placements because the language of that provision
explicitly refers to preference requirements but not to the
requirement of good cause.4 The opinion views this supposed
omission as suggesting that Congress did not intend the standards
to apply to the good cause inquiry.5 But again, the opinion is
circular because it starts from the flawed premise that 1915(a)s
good-cause requirement is not part of that provisions preference
requirements. The premise is flawed because 1915(a) explicitly
extends to any adoptive placement, and the good-cause component
of that provision is an integral part of its requirements in any
adoptive placement involving a non-Indian home.
The opinion tries to distance 1915(a)s good-cause
inquiry from its preference requirements by describing the good-
cause inquiry as merely part of a common statutory scheme.6 Yet
the link is far closer than that: the preferred placements and
good-cause requirement are joined in a single sentence in
1915(a); and, as described there, they function as inseparable,
mutually dependent requirements for any adoptive placements. By
making its three listed preferences mandatory unless the court
finds good cause to the contrary, 1915(a)s plain language
integrates the good-cause inquiry into any placement decision
involving potential custodians from more than one preference
tier.
The opinion also suggests that 1915(a) suffers from
textual ambiguity because it lists three preferred placements,
all of which are Indian placements, while omitting any reference
to a fourth category for placements in a non-Indian home.7 But
this suggestion is unfounded. The word preference necessarily
describes a choice between two possibilities, one of which is
better than the other. Thus, in listing three placement
preferences, 1915(a) describes three preferred choices in
descending order of priority. Because each listed placement is a
preference, each necessarily implies the existence of a less
desirable choice. And in context, the implied least-desirable
alternative for the lowest listed statutory preference the
preference for other Indian families is obviously non-Indian
families, which could not have been listed as a preferred
placement, because it is a non-preferred, default placement.
Hence, 1915(a) does all that it sets out to do: it
lists all of ICWAs preferred placements. And its opening phrase
makes the comprehensive scope of its preference requirements
unmistakably clear by emphasizing that the listed preferences
must be obeyed [i]n any adoptive placement of an Indian child
under State law8 not just in a preferred placement to an Indian
home. Thus, the statutes list of preferences excludes no
placements. The plain language of 1915(a) unambiguously
requires good cause to be found whenever a court chooses between
placement in an other Indian famil[y], under 1915(a)(3), and a
non-Indian family. In specifying what preference[s] shall be
given, Congress omitted nothing from 1915(a)s text suggesting
that issues of good cause should be decided differently when they
involve potential placements with non-Indian families.9 Given
the absence of textual ambiguity, I see no justification for
departing from 1915s plain meaning; for as the court itself
acknowledges, our powers of statutory interpretation do not
permit reliance on ambiguities that do not exist.10
The courts reliance on ICWAs congressional history
strikes me as equally unpersuasive. It seems anomalous to
venture that a Congress concerned with stopping an exodus of
Indian children to non-Indian homes would seek to cure the
problem by adopting a good-cause provision that allowed Indian
values to govern Indian-home placements but left states free to
continue using non-Indian values in deciding when to move Indian
children into non-Indian homes. The interpretation of 1915
adopted in todays opinion defeats Congresss goal by openly
inviting courts to trump Indian community norms with white,
middle-class norms whenever a non-Indian placement can be found.
The opinion attempts to repair this flaw in its own
theory by shaping 1915s straightforward language into an
elaborate yet ill-defined construct: the opinion posits that
ICWA contemplates a distinction between preferred-placement
decisions and good-cause determinations. Preferred-placement
decisions would consider only Indian placements and would require
courts to use Indian community values in determining the
suitability of potential Indian custodians; by contrast, good-
cause decisions would consider only non-Indian placements
occasioned by the lack of a suitable preferred Indian placement
and would require courts to use white middle-class values in
determining whether a childs special needs justified deviating
from the preferred- placement requirements by making a non-Indian
placement. The opinion declares that this interpretation
accurately reflects an implied judgment that while the
suitability of a Native household must be viewed in light of the
prevailing social and cultural standards of the Indian community,
courts are not compelled to analyze a childs special needs
according to those standards.11
The opinion nonetheless concedes that, if literally
applied, this interpretation would create a loophole[]
eviscerating the protections of ICWA.12 As the court itself
admits,
Applying white, middle-class standards
to the suitability inquiry as an aspect of
the good cause determination could
effectively read the preference requirements
and the prevailing social and cultural
standards of the Indian community out of the
statute. This would occur if courts, while
determining whether there is good cause for
deviating from the statutorily preferred
placements, could apply white, middle-class
standards to examine or reexamine the
suitability of a Native or relative placement
deemed suitable under prevailing Indian
social and cultural standards. This is the
very problem ICWA was enacted to
eliminate.[13]
To prevent Indian children from the very dangers that
led Congress to enact ICWA, the opinion declares an exception to
its own rule: after broadly professing that [t]he existence of a
suitable preferred placement precludes any consideration of a non-
preferred placement unless good cause exists;14 it insists that
in determining whether good cause exists, white, middle-class
standards may not be applied to reassess the suitability of a
preferred placement.15
As far as I can see, there appears to be no textual or
contextual support for this approach. In fact, it appears that
before todays opinion no legislative body or legal authority ever
conceived of giving ICWA 1915 such a roundabout reading. To be
sure, as the court notes, the congressional record does suggest
that ICWAs drafters were concerned about the difficulty Indian
couples encountered in attempting to qualify as foster and
adoptive parents.16 But this hardly supports the conclusion that
these difficulties were ICWAs sole, or even its primary, concern.
It surely does not justify reading 1915(a)s plain language
requiring placement preferences to be honored [i]n any adoptive
placement of an Indian child17 as having been meant to cover only
preliminary placement determinations involving licensing and
basic qualifications. And it certainly cannot justify ignoring
the far broader purposes set out in ICWA 190, the Acts
introductory statement of Congressional findings. Among other
things, these findings state
that there is no resource that is more vital
to the continued existence and integrity of
Indian tribes than their children and that
the United States has a direct interest, as
trustee, in protecting Indian children who
are members of or are eligible for membership
in an Indian tribe;
. . . that an alarmingly high percentage of
Indian families are broken up by the removal,
often unwarranted, of their children from
them by nontribal public and private agencies
and that an alarmingly high percentage of
such children are placed in non-Indian foster
and adoptive homes and institutions; and
. . . that the States, exercising their
recognized jurisdiction over Indian child
custody proceedings through administrative
and judicial bodies, have often failed to
recognize the essential tribal relations of
Indian people and the cultural and social
standards prevailing in Indian communities
and families.[18]
It is true that the BIA Guidelines do mention the need
to consider issues of special needs in making good-cause
decisions;19 but nothing in the Guidelines suggests that
suitability and special needs issues should be treated as
mutually exclusive considerations relating to different kinds of
placement decisions. To the contrary, the Guidelines mention
both special needs and the availability of suitable Indian homes
as factors to consider in making good-cause determinations. By
referring to both criteria in discussing the determination of
good cause, the Guidelines plainly indicate that both suitability
and special needs play an integral role in determining the
existence of good cause.20 Conversely, ICWA 1915 describes both
suitability and special needs as factors to consider in selecting
preferred placements.21 Indeed, 1915(b) makes special needs a
mandatory criterion for certain preferred-placement
determinations involving the suitability of foster care and
preadoptive placements.22 Read together, then, 1915 and the BIA
Guidelines establish that suitability and special needs both are
legitimate factors to be considered in making decisions
concerning placement preferences and good cause.
Common sense, if nothing else, dictates the same
conclusion. As a practical matter, a childs special needs are an
indispensable component of any decision concerning a potential
custodians suitability for a specific adoptive placement. For
purposes of establishing suitability, a proposed adoptive parents
abilities and the adoptive childs needs are flip sides of the
same coin: though not identical, they fit together, are
inseparable, and must correspond. By reading ICWA as commanding
suitability decisions for preferred placements that completely
ignore special needs, todays opinion demands an artificially
narrow suitability finding that could only examine a potential
placements abstract ability to care for a hypothetical child.
The opinion is equally unrealistic in assuming that special needs
can be considered as part of the good-cause determination without
redeciding a previous determination of the preferred custodians
suitability.
Here, for example, it would seem utterly unrealistic to
imagine that a meaningful evaluation of Frank and Tonya B.s
suitability to become adoptive parents for Sara, Morris, and Joel
could be prepared without carefully examining the childrens
needs; and it seems equally unimaginable that a good-cause
inquiry could avoid redetermining issues concerning Frank and
Tonya B.s suitability to become adoptive parents of these
children if the inquiry ultimately concluded, as it did here,
that Matilda was the only available adoptive custodian who was
capable of meeting their needs.
Todays opinion confirms this point. The superior
courts decision in this case understandably took a different
approach to good cause than the one newly announced in todays
opinion. The trial court viewed the basic question before it as
being whether [Matilda] is the best candidate among the families
deserving to be the childrens adoptive family to provide for the
emotional and educational needs of the children. In other words,
the superior court saw the good-cause inquiry as requiring it to
find the most suitable parents. Yet in affirming the trial
courts ruling, todays opinion does not fault that court for
deciding good cause by comparing the suitability of all the
available adoptive placements. To the contrary, despite its
repeated references to special needs, what the opinion basically
holds is that Matilda appears to be the only suitable parent for
Sara, Morris, and Joel.
The opinions unrealistic dichotomy between suitability
and special needs is not its only practical problem. Its
approach is also troubling because it will invite courts to
completely bypass Indian community values in any adoptive
placement decision involving a non-preferred placement. Using
the opinions approach, courts in such cases could routinely
assume that all proposed Indian placements would be suitable in
the abstract sense; courts could then move directly to the good-
cause determination and, applying white-middle class values, find
the non-Indian custodian to be the only adoptive placement
actually suitable for the specific children at issue. After all,
if suitability for parenting hypothetical children can be
determined without considering special needs, then specific
children will always have special needs.
This is not what ICWA requires. Section 1915(a)
applies to adoptive placements, not preadoptive placements or
licensing decisions for future adoptive placements; it
contemplates custodian-specific and child-specific consideration
of suitability and special needs in making all preferred-
placement decisions as well as in making all good-cause
determinations. I would read 1915(d) as applying to all
aspects of adoptive placement decisions required under 1915(a),
including good-cause findings justifying a non-preferred
placement. To this extent, I agree with the tribes position on
the meaning of 1915(d)s reference to 1915(a)s preference
requirements.
But I nevertheless disagree with the tribe as to the
meaning of 1915(d)s reference to prevailing social and cultural
standards. Determining the meaning of this phrase poses a
difficult problem: Congress undeniably enacted the preference
requirements to ensure that Indian children could remain in the
Indian community whenever community placement would serve their
best interests, as viewed by that communitys standards; but, at
the same time, Congress also expressly recognized that these
requirements are not to be read as precluding the placement of an
Indian child with a non-Indian family.23
As the opinion rightly points out, [t]here was evidence
here that Yupik standards dictate that Yupik children should
invariably be raised by Yupik people.24 In pressing this
evidence, the tribe appears to assume that 1915(d)s reference to
using the Indian communitys values requires courts to accept an
Indian communitys conclusions dictating how its traditional
values should apply to a particular placement including its
traditional view that its values always require a preferred
placement.
I disagree with the tribes assumption. So does todays
opinion, of course. But unlike the opinion, I think that the
problem can best be resolved by reading 1915(d)s reference to
Indian community values to mean what Congress intended.
Specifically, I would decline to read 1915(d)s reference to
prevailing social and cultural standards as including community
views that flatly preclude non-Native placements. As I read
1915(d)s directive, it requires courts to apply the everyday
norms and values that the Indian community applies in raising its
own children within its community; but it does not command blind
acceptance of Indian community views that categorically
disqualify all potential non-preferred placements. This
interpretation comports with the context and purpose of ICWA, and
seems reasonably necessary to avoid absurd and unintended
consequences. For if individual Indian communities could
automatically block non-preferred placements on the ground that
community values categorically preclude cross-cultural
placements, then 1915(a)s placement preferences would
effectively become placement mandates.
Here, the tribes nearly exclusive reliance on evidence
suggesting that Yupik standards would always require a Yupik
placement reflects a basic misunderstanding of the meaning of
1915(d)s directive to use the prevailing social and cultural
standards of the Indian community when applying 1915(a)s
preference requirements. The broad reading of 1915(d) advocated
by the tribe in this case conflicts with congressional intent to
allow non-Native placement where good cause exists. More
important, it also conflicts with the express language of
1915(a), which uses preference requirements not as substitutes
for the application of state law but as a way of assisting states
in deciding upon the placement of an Indian child under State
law.25
As I see it, 1915(d) seeks to take a pragmatic
approach to the universal pitfalls of cultural bias. It does not
substitute the Indian communitys norms for the substantive
requirements of state law; it does not override the judges usual
duty to independently decide issues of suitability, good cause,
and best interests according to state laws substantive standards;
and it does not bind the court to accept expert testimony telling
it how to apply a communitys standards to a particular case.
Instead, the provision simply directs the court to take a hard
look at issues of suitability and good cause through the lens of
the Indian communitys basic values not so the community can
override the courts choice of suitable placements, but simply to
balance the scales more fairly toward Indian custody by ensuring
that judges applying state law will use the Indian communitys
perspective instead of their own to realistically assess all
issues relating to the childs not the communitys best
interests.
In this case, compelling evidence was presented to
support a finding of good cause to deviate from the placement
preference. The superior court also heard abundant evidence,
including both lay and expert testimony, concerning prevailing
Yupik cultural and social standards. In considering this
evidence, the court rejected testimony that simply refused to
accept any possibility that a non-preferred adoptive placement
would ever be suitable under prevailing Yupik norms. The court
also rejected the case-specific conclusions reached by the tribes
main expert witness, Dr. Samuel Roll; it declined to credit them
because Dr. Roll had never actually worked in Alaska Native
villages or with Alaska Native children and because the court
found his conclusions unpersuasive in light of other testimony
presented at trial and the courts own accumulated experience.
But despite rejecting Dr. Rolls case-specific views, the court
accepted and considered other important aspects of his testimony,
emphasizing that it found Dr. Rolls theories and information to
be generally credible, and only disagreed with his application of
his knowledge to the case at hand.
The court also carefully considered and balanced all of
the other evidence bearing on the issue of Yupik social and
cultural standards. And with this evidence in mind, in a
thoughtful and comprehensive decision spanning forty pages, the
court thoroughly evaluated all relevant aspects of good cause,
including the suitability of Frank and Tonya B. to become the
childrens adoptive parents, the availability of other suitable
preferred placements, Matildas suitability as an adoptive parent
for the children, her ability to meet the childrens special
needs, and her ability to meet their Yupik cultural needs. The
court ultimately found good cause to deviate from the placement
preferences and concluded that a non-preferred placement would
serve the childrens best interests. The court essentially
concluded that Matilda was the only available placement capable
of providing a home for the children without subjecting them to a
risk of serious physical and emotional harm; in stating its
conclusion, it specifically found that the risk of harm from any
other placement would be clearly unacceptable in either the
Western or Yupik tradition.
Based on my own understanding of ICWAs placement
preference requirements, as explained above, I would conclude
that the superior courts decision relied on a correct
understanding of the applicable law. I agree with todays opinion
in concluding that, on appeal, the tribe has not shown that any
of the trial courts central factual findings are clearly
erroneous or that the conclusions the trial court reached from
those findings amount to an abuse of discretion. On this basis,
despite disagreeing with the opinions view of the law, I concur
in affirming the superior courts judgment.
_______________________________
1 25 U.S.C. 1901 et seq. (1978).
2 25 U.S.C. 1915(a).
25 U.S.C. 1915 provides in part:
(a) Adoptive placements; 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
childs extended family; (2) other members of
the Indian childs tribe; or (3) other Indian
families.
(b) Foster care or preadoptive placements;
criteria; preferences
Any child accepted for foster care or
preadoptive placement shall be placed in the
least restrictive setting which most
approximates a family and in which his
special needs, if any, may be met. The child
shall also be placed within reasonable
proximity to his or her home, taking into
account any special needs of the child. In
any foster care or preadoptive placement, a
preference shall be given, in the absence of
good cause to the contrary, to a placement
with
(i) a member of the Indian childs extended
family;
(ii) a foster home licensed, approved,
or specified by the Indian childs tribe;
(iii) an Indian foster home licensed or
approved by an authorized non-Indian
licensing authority; or
(iv) an institution for children approved by
an Indian tribe or operated by an Indian
organization which has a program suitable to
meet the Indian childs needs.
(c) Tribal resolution for different order of
preference; personal preference considered;
anonymity in application of preferences
In the case of a placement under subsection
(a) or (b) of this section, if the Indian
childs tribe shall establish a different
order of preference by resolution, the agency
or court effecting the placement shall follow
such order so long as the placement is the
least restrictive setting appropriate to the
particular needs of the child, as provided in
subsection (b) of this section. Where
appropriate, the preference of the Indian
child or parent shall be considered:
Provided, That where a consenting parent
evidences a desire for anonymity, the court
or agency shall give weight to such desire in
applying the preferences.
(d) Social and cultural standards applicable
The standards to be applied in meeting the
preference requirements of this section shall
be the prevailing social and cultural
standards of the Indian community in which
the parent or extended family resides or with
which the parent or extended family members
maintain social and cultural ties. . . .
3 25 U.S.C. 1915(d).
4 25 U.S.C. 1915(a).
5 Pseudonyms are used for the J. children, the parents,
the adoptive mother, and all other family members.
6 C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001);
Adoption of N.P.S., 868 P.2d 934, 936 (Alaska 1994).
7 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 950 (Alaska 2000); In re Adoption of F.H., 851 P.2d 1361,
1363 (Alaska 1993).
8 L.G., 14 P.3d at 950.
9 Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).
10 Id.; Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002).
11 25 U.S.C. 1901(4).
12 In re Adoption of Bernard A., 77 P.3d 4, 9 (Alaska
2003) (recognizing that placement preference[s] of the ICWA [are]
meant to reverse a pattern of breaking up Indian families and to
promote the stability of Indian families) (internal footnote
omitted).
13 See H.R. Rep. No. 95-1386, at 24 (1978).
14 We recognize that if one parent is Native and the other
is not, the Indian childs extended family may include non-Native
members who might argue for preferred placement status under
ICWA. Despite this possibility, for ease of discussion we use
the term preferred placement to denote Native placements as
specified by 1915(a).
15 In Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 32-37 (1989), the Supreme Court began its discussion
of the meaning of the word domicile in ICWA with an extended
discussion of legislative history. See also id. at 44-45 (It is
clear from the very text of ICWA, not to mention its legislative
history and the hearings that led to its enactment, that Congress
was concerned with the rights of Indian families and Indian
communities vis-…-vis state authorities.). We therefore consider
relevant legislative history in deciding this case.
A majority of the Supreme Court, to discern Congresss
intent with respect to a particular federal statute, continue to
look either to the contextof the problem Congress was addressing,
and not just literal text, City of Rancho Palos Verdes, Cal. v.
Abrams, 125 S. Ct. 1453, 1462 (2005) (Breyer, J., concurring,
joined by OConnor, Souter, & Ginsberg, JJ.), or to traditional
legislative history. Id. at 1463 (Stevens, J., concurring).
16 John v. Baker, 982 P.2d 738, 747 (Alaska 1999), cert.
denied, 528 U.S. 1182 (2000).
17 25 U.S.C. 1915(d).
18 25 U.S.C. 1915(a).
19 See Slip Op. at 35.
20 One commentator who argues that the prevailing social
and cultural standards ought to apply to the good cause inquiry
has recognized that the language does not currently support this
reading. See Note, The Indian Child Welfare Act: Guiding the
Determination of Good Cause to Depart From the Statutory
Placement Preferences, 70 Wash. L. Rev. 1151, 1172-73 (1995)
(Congress could clarify this by simply inserting the phrase and
in determining good cause to the contrary into 1915(d).).
21 The concurrence suggests that this reasoning is
circular. Slip Op. at 36. It argues that we start from the
premise that 1915(a)s good-cause requirement is not part of that
provisions preference requirements a premise the concurrence
disputes. Id. In our view, the plainest reading of the statute
warrants that premise. That Congress failed to write the
provision in such a way that made it clear that the good cause
determination was encompassed by 1915(d) simply reinforces a
conclusion already suggested by the text of the statute.
22 See John v. Baker, 982 P.2d 738, 752 (Alaska 1999),
cert. denied, 528 U.S. 1182 (2000).
23 Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584 (Bureau of Indian Affairs Nov.
26, 1979).
24 See, e.g., John, 982 P.2d at 747 n.33 (according BIA
Guidelines important but not controlling significance); In re
Adoption of F.H., 851 P.2d 1361, 1364 (Alaska 1993) (Although the
Guidelines do not have binding effect, this court has looked to
them for guidance.).
25 Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,
766 (1985).
26 South Carolina v. Catawba Indian Tribe, Inc., 476 U.S.
498, 506 (1986).
27 Id. at 506-07 (reading the Termination Act to avoid a
contorted construction . . . that conflicts with the central
purpose and philosophy of the . . . Act and incongruity within
the Act); Oregon Dept of Fish & Wildlife v. Klamath Indian Tribe,
473 U.S. 753, 774 (1985) ([E]ven though legal ambiguities are
resolved to the benefit of the Indians, courts cannot ignore
plain language that, viewed in historical context and given a
fair appraisal, clearly runs counter to a tribes later claims.)
(internal quotations omitted); see also South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329, 348-49 (1998) (examining historical
context of treaty, considering maxim that statutes ought not be
read so as to render words redundant, and referring to analogous
precedent in concluding that its reading of statutes plain
language was reasonable interpretation).
28 H.R. Rep. No. 95-1386, at 24 (1978) (emphasis added).
29 H.R. Rep. No. 95-1386, at 11 (emphasis added).
30 25 U.S.C. 1901(5) (1978).
31 25 U.S.C. 1902 (1978).
32 H.R. Rep. No. 95-1386, at 23.
33 The tribe argues that this argument is founded on the
unwarranted assumption that all Indian communities will
invariably oppose outside placements. But the argument merely
recognizes that such an application of the social and cultural
standards would give tribes power to veto a good cause
determination in any case they choose to contest. We see little
difference between granting an interested party a veto and
complete nullification of the provision.
34 See 25 U.S.C. 1911(c) (1978) (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 childs tribe shall have a right to intervene
at any point in the proceeding.).
35 Alaska Adoption R. 11(f).
36 Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,595 (Bureau of Indian
Affairs Nov. 26, 1979).
37 See id. at 67,584.
38 See AS 47.05.065(5)(c) ([I]t is important to provide
for an expedited placement procedure to ensure that all children
. . . are placed in permanent homes expeditiously.); S.H. v.
State, DFYS, 42 P.3d 1119, 1125 (Alaska 2002) (The timeliness of
a permanent stable placement for the children is paramount . . .
.).
39 Matter of Baby Boy Doe, 902 P.2d 477 (Idaho 1995).
40 Id. at 487 (emphasis added).
41 Id.
42 See id.
43 Id. at 488 (citing Matter of Custody of S.E.G., 521
N.W.2d 357, 364 (Minn. 1994)). We discuss S.E.G. below.
44 Id.
45 Id. at 488-89.
46 Id.
47 In re Jullian B., 99 Cal. Rptr. 2d 241, 250 (Cal. App.
2000).
48 Id. at 249.
49 Id. at 250.
50 The trial court denied the preferred placement based on
a statutory disqualification resulting from a forty-year-old
criminal conviction. Id. at 249-50. The court held that no good
cause to deviate from the preferred placement existed unless the
appropriate agency requested waiver of the disqualification or
explained why it did not, based on the facts of that case. Id.
at 250.
51 Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,594 (Bureau of Indian
Affairs Nov. 26, 1979).
52 Id. at 67,584 (citing S. Rep. No. 95-597, at 17
(1977)).
53 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 952-53 (Alaska 2000) ([T]he primary reason for requiring
qualified expert testimony in ICWA termination proceedings was to
prevent courts from basing their decisions solely upon the
testimony of social workers who possessed neither the specialized
professional education nor the familiarity with Native culture
necessary to distinguish between cultural variations in
child-rearing practices and actual abuse or neglect.) (emphasis
in original).
54 Id. at 953 (holding that where there is clear evidence
that a child faces a serious risk of physical neglect if she
remains in her parents care, a trial judge may terminate parental
rights without hearing testimony from an expert in Native
cultures).
55 See Guidelines for State Courts, 44 Fed. Reg. at 67,594
(In a few cases a child may need highly specialized treatment
services that are unavailable in the community where the families
who meet the preference criteria live. Paragraph (ii) recommends
that such considerations be considered as good cause to the
contrary.).
56 Slip Op. at 37.
57 Id.
58 Slip Op. at 43.
59 Slip Op. at 42.
60 Id.
61 Matter of Custody of S.E.G., 521 N.W.2d 357, 364 (Minn.
1994).
62 Id.
63 Id. at 364 & n.7 (quoting Guidelines for State Courts,
44 Fed. Reg. at 67,594).
64 We note that despite its disagreement over what
standard applies to the good cause determination, the S.E.G.
court might reach the same result in this case. In S.E.G., the
finding of good cause was rejected because the childrens special
needs were not established by expert testimony from persons
knowledgeable about Native culture. S.E.G., 521 N.W.2d at 364.
Here, the childrens needs were established through the testimony
of Dr. MacIan, who has extensive experience studying and working
with Native children, and Jennifer Cashion, whose eight years of
experience as a counselor have exposed her to significant contact
with Native children. In addition, there was testimony that
three of the social workers who worked on this case were Yupiks.
65 See Adoption of N.P.S., 868 P.2d 934, 938 (Alaska
1994).
66 Although the record is unclear, it appears that at the
most, one of Joels placements has been in a relative home.
67 See 25 U.S.C. 1915(c).
68 Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)
(It is the function of the trial court, not of this court, to
judge witnesses credibility and to weigh conflicting evidence.).
69 Matter of J.W., 921 P.2d 604, 606 (Alaska 1996).
70 Adoption of N.P.S., 868 P.2d 934 (Alaska 1994).
71 Id. at 938.
72 Id.
1 25 U.S.C. 1915(a).
2 25 U.S.C. 1915(d).
3 Slip Op. at 8.
4 Slip Op. at 10-11.
5 Id. at 11.
6 Id. at 10.
7 Id. at 10-11.
8 25 U.S.C. 1915(a) (emphasis added).
9 Indeed, if extra-tribal placements were excluded from
subsection (a)s preference requirements, there would be no
textual basis in ICWA for concluding that the good-cause
requirement in 1915(a) would apply to any non-Indian placement,
regardless of whether or not the court used prevailing Indian
community standards under 1915(d).
10 Slip Op. at 12 (quoting South Carolina v. Catawba
Indian Tribe, Inc., 476 U.S. 498, 506 (1986)).
11 Slip Op. at 21.
12 Id. at 15.
13 Id. at 20.
14 Id. at 22.
15 Id. at 15.
16 See Slip Op. at 13 & n.29.
17 25 U.S.C. 1915(a) (emphasis added).
18 25 U.S.C. 1901(3)(5).
19 Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584 (Bureau of Indian Affairs Nov.
26, 1979) at 67,594 (relevant provisions set out verbatim in Slip
Op. at 19).
20 Id.
21 See 1915(b) (establishing preferred-placement
requirements for foster and pre-adoptive placements) (set out in
full, Slip Op. at 2, n.2).
22 See 1915(b)(iv).
23 See Slip Op. at 14 & n.32.
24 Id. at 14.
25 25 U.S.C. 1915(a) (emphasis added).
