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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gilbert M. v. State (07/21/2006) sp-6029
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
| GILBERT M., | ) |
| ) Supreme Court No. S- 11364 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-00-545 CP |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6029 - July 21, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon Gleason, Judge.
Appearances: Nancy Shaw, Anchorage, for
Appellant. Michael G. Hotchkin, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellee State of Alaska. David S. Case,
Landye Bennett Blumstein, LLP, Anchorage, for
Appellee Chitina Traditional Indian Village
Council. Jill C. Wittenbrader, Assistant
Public Advocate, and Joshua P. Fink, Public
Advocate, Office of Public Advocacy,
Anchorage, Guardian Ad Litem.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Gilbert M. appeals the termination of Jan M.s parental
rights to her daughter Gilberts granddaughter Belinda T.1 The
state took Belinda from Gilberts home in 2000 when he was
arrested on felony gun and drug charges. Jan has not appealed
the termination of her parental rights and Belinda has since been
adopted. Gilbert has been convicted of numerous felonies and is
incarcerated for the foreseeable future. Gilbert appeals the
termination of Jans rights, asserting that the superior court
applied the wrong evidentiary standard in assessing the states
active efforts and that the court erred in failing to obtain
testimony from an expert in Native culture. Gilbert also
challenges the superior courts finding that harm would result if
Belinda were to be placed with him and the superior courts
refusal to order Belindas adoptive parents to provide Gilbert
visitation. Because Gilbert does not have standing to appeal
Jans rights, and because the claims which he has standing to
appeal are rendered moot by his lengthy incarceration, we affirm
the judgment of the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
Belinda T. was born in June 1996 to Jan M. and Henry T.
Henrys whereabouts are unknown and state efforts to locate him
have been unsuccessful. Jan and Belinda are affiliated with the
Chitina Traditional Indian Village and Belinda is an Indian child
within the meaning of the Indian Child Welfare Act (ICWA).2
The state received three reports of harm to Belinda
between 1998 and 2000. These reports indicated Jan was drinking
heavily and using both crack cocaine and marijuana. These
substance abuse problems interfered with Jans ability to be
Belindas caretaker. Until 2000 Jan often left Belinda in the
care of Gilbert M., Jans father.
On September 23, 2000 the Anchorage Police Department
raided Gilberts home and arrested him. According to the petition
to terminate parental rights, Police observed a loaded pistol and
bullets in open view at the residence, and a heavy gun case was
removed from under [Belinda]s bed. Police also found multiple
bags of marijuana, as well as money believed to be from the sale
of drugs. Following a jury trial, Gilbert was convicted of
fourteen felonies and was sentenced to a presumptive twenty-five-
year prison term; Gilbert faces another six years of imprisonment
in a different case. Gilbert is currently sixty-six years old;
he will likely be incarcerated for a lengthy period and will
almost certainly be in prison when Belinda reaches the age of
eighteen.3
The state took Belinda into emergency custody at the
time of Gilberts arrest. Jan apparently was living in Nome at
the time. In September 2000 the Division of Family and Youth
Services (DFYS or the division) filed an emergency petition for
adjudication that Belinda was in need of aid and for emergency
placement. Superior Court Judge Peter A. Michalski granted the
petition in October 2000 and temporarily placed Belinda in state
custody. Gilbert participated in the custody hearing; the
superior court master stated that [Gilbert M.] is an Indian
custodian and thereby entitled to party status and the courts
order referred to Gilbert as the maternal grandfather/Indian
custodian.4
On February 14, 2001 the parties to the custody
proceeding entered a stipulation before Superior Court Judge
Sharon Gleason to the effect that Belinda was a child in need of
aid under AS 47.10.011(6)5 and (10)6 and that return home was not
appropriate at the time, pending Jans progress on her case plan.
The stipulation included the statement, as part of the basis for
Belinda being a child in need of aid, that [t]he Indian custodian
is currently facing criminal prosecution and is not an
appropriate caretaker for the child at this time. Gilbert signed
the stipulation, as did Jan and the guardian ad litem.
In the meantime, Jan began work on her case plan. She
signed the plan on October 10, 2000. It provided that Jan would
pursue alcoholism treatment, would follow mental health treatment
recommendations, and would follow social workers recommendations
on providing for Belindas safety. Jan entered a detox facility
on January 19, 2001 but was discharged on February 27 for
assaulting another patient. She entered another facility on May
15, 2001 but left two weeks later against treatment advice.
The guardian ad litem (GAL) for Belinda filed a
disposition report on May 11, 2001. The report recommended that
Belinda continue in foster care while Jan worked on her case plan
and that once the mother is settled into residential treatment,
the parties may consider placement of [Belinda] with the mother.
As to Gilbert, the GAL reported
[Gilbert M.] is an Indian Custodian and
expressed a desire to work a case plan. . . .
The GAL assumes that Mr. [M.] is focusing on
resolving his criminal charges at this point.
. . . In the event that [Jan] does not
complete treatment or relapses, it would be
in [Belindas] best interests for [Gilbert M.]
to work a case plan and be considered as a
future placement for [Belinda].
Jan successfully completed alcohol treatment from
October 16, 2001 to November 21, 2001. As a result, DFYS decided
in January 2002 to proceed toward reunification, placing Belinda
in a foster home in Anchorage. In May 2002 Jan entered an
outpatient aftercare program. She was discharged against
treatment advice on July 25, 2002. Jans attendance at the
program was sporadic. At about the same time, in June 2002, Jan
apparently relapsed into alcoholism and fell out of contact with
DFYS.
As a result of Jans non-compliance with the case plan,
the superior court in July 2002 adopted a permanency plan of
adoption. The courts order stated that Jan had not made
substantial progress to remedy her conduct or the conditions in
the home which caused the child to be a child in need of aid.
Referring to Gilbert, it added, The Indian custodian is
incarcerated and is not likely to be released in the foreseeable
future.
DFYS social worker Kimberly Uhrich developed a new case
plan in October 2002, which Jan signed. This plan had similar
elements to the 2000 plan but included adoption as a concurrent
goal. Jan had to be hospitalized for an inhalant overdose in
October 2002, after which Uhrich arranged for Jan to be admitted
to an inpatient treatment program in Fairbanks. Jan left that
program after a week. Belinda was adopted by a tribally-approved
family in October 2005.
B. Proceedings
The division filed a termination petition against both
parents on August 28, 2002. Judge Gleason heard evidence against
Henry T., Belindas father, on Feburary 13, 2003, and ordered his
parental rights terminated effective February 13 in an order of
November 10, 2003. At trial, social worker Kim Uhrich testified
that efforts to locate Henry had been utterly unsuccessful and
that further efforts had no likelihood of finding him.
At the trial setting conference on March 12, 2003 the
court noted that Gilberts rights as an Indian custodian were
unclear and ordered briefing on the matter. No briefing appears
in the record. Though he continued to participate in the
proceedings, Gilbert was never referred to as the Indian
custodian again. His attorney noted at trial that he was unsure
whether Gilbert could make any stipulations regarding Belinda
since the petition . . . is against the daughter. The states
attorney stated his belief that the court could enter an order on
Belindas status without the grandfather.
The superior court held a trial on termination of Jans
parental rights on May 20 and 27, 2003. Gilbert participated
telephonically in the proceedings (as he was incarcerated at the
time) and was represented by court-appointed counsel. The court
issued an order on the termination petition on July 18, 2003,
holding that (1) DFYS had demonstrated by clear and convincing
evidence that Belinda was a child in need of aid under AS
47.10.011(10) and that Jan had failed to remedy the conditions
that caused Belinda to be in need of aid;7 (2) that the division
had proved by a preponderance of the evidence that active efforts
to prevent the breakup of the family had been made, at least
through May 2003;8 and (3) that termination of Jans parental
rights was in Belindas best interests.9
The court ruled, however, that the division had not
established beyond a reasonable doubt that placing Belinda in
Jans custody was likely to result in serious physical or
emotional damage. The court was concerned that the states
expert, Dr. Richard Lazur, had not interviewed Jan or Belinda and
that he had discounted the bond between Jan and Belinda, given
uncontradicted testimony that [Belinda] loves Ms. [M.] and would
very much like for Ms. [M.] to remain in her life. The court
deferred the petition for ninety days.
The court heard additional evidence on November 19,
2003 which satisfied its earlier concerns. The court issued oral
findings on November 21, 2003 and a written order on January 28,
2004 terminating Jans parental rights effective November 21,
2003. The courts termination order incorporated the findings
issued after the first termination hearing. The order found that
the state has proved beyond a reasonable doubt . . . that
continued custody of [Belinda] by [Jan M.] or [Gilbert M.] is
likely to result in serious emotional or physical damage to
[Belinda]. The court also held that the state had demonstrated
active efforts for the May 2003-November 2003 period and that it
remains contrary to [Belinda]s welfare to be returned to the
custody of her mother or her Indian custodian.
Belinda was adopted on October 28, 2005. The adoption
decree found that the adoptive parents wish to maintain the
childs continued contact with her Alaska Native Culture and that
they have demonstrated a willingness and ability to maintain the
childs contact with her grandfather. In the adoption hearing
Gilbert requested that the court order visitation as permitted
under AS 25.23.103(c) of no less than one personal visit or one
fifteen minute phone call per month. The superior court held
that the adoptive parents shall have the sole discretion to
determine the frequency and circumstances of visitation that are
reasonable and in the childs best interests. It is not necessary
and it is not in the childs best interests to enter a specific
order defining the terms of visitation in the adoption decree.
(Emphasis in original.)
Gilbert and the Chitina Village both initially appealed
the termination of Jans rights; the village had intervened in the
custody proceedings as provided by ICWA.10 Jan did not appeal the
termination. Gilberts and Chitinas appeals were stayed pending
tribal approval of the adoptive placement; Gilberts appointed
counsel reported that it appears likely that [Belinda]s adoption
by the tribally preferred parents will moot the appeal issues of
both [Chitina] and [Gilbert]. Indeed, after Belinda was placed
with her adoptive parents, Chitina abandoned its appeal, which we
dismissed sua sponte for want of prosecution. Chitina is
participating in this case as an appellee.
Gilbert appeals from the termination order. He argues
that the United States Constitution requires that the state prove
all elements of its termination case including whether the state
made active efforts to prevent the breakup of his family by
clear and convincing evidence, and thus that the superior court
erred when it evaluated the states efforts under a preponderance
standard. Gilbert argues that the states efforts would not meet
this heightened evidentiary burden. Second, Gilbert argues that
the superior court erred in crediting the states expert and in
not requiring that the state present testimony from an expert on
tribal childrearing practices. Finally, Gilbert challenges the
superior courts finding that placing Belinda with him would
result in harm to Belinda.
III. STANDARD OF REVIEW
I. We review factual findings of the trial court for clear
error, which exists when our review of the record leaves us with
the definite and firm conviction that the superior court has made
a mistake.11 Whether the state has complied with the active
efforts requirement of ICWA is a mixed question of law and fact.12
We use our independent judgment in deciding questions of law,
adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.13 It is a question of law whether
the superior courts findings are consistent with child-in-need-of-
aid rules and statutes.14 Threshold questions such as mootness,
standing, and ripeness as matters of judicial policy are all
questions of law.15 We may affirm the superior court on any
basis supported by the record, even if that basis was not
considered by the court below or advanced by any party.16
IV. DISCUSSION
A. Gilbert Does Not Have Standing To Appeal the Termination.
Before we consider the merits of Gilberts appeal we
must determine whether he has standing to bring the appeal. The
basic requirement for standing in Alaska courts is adversity.17
The plaintiff must have an interest adversely affected by the
conduct complained of.18 This requirement is sometimes referred
to as the interest-injury test.19 Standing in our state courts is
not a constitutional doctrine; rather, it is a rule of judicial
self-restraint based on the principle that courts should not
resolve abstract questions or issue advisory opinions.20 Neither
the interest nor the injury asserted need be great; an
identifiable trifle is enough for standing to fight out a
question of principle.21
1. Gilbert does not have standing to assert Jans rights.
1. 1. We have not fully aired the question of the
circumstances in which a party may raise the rights of a third
person. In Peterson v. Ek,22 a breach of contract suit, we noted
that Peterson lacked standing to assert the claim of a third
party who had loaned supplies to Peterson and which Ek
appropriated.23 Peterson alleged that Ek misappropriated an
anchor, line, and chain that Petersons friend Greg Dockery had
loaned to Peterson.24 We noted that [e]ven if Ek did
misappropriate these items, Peterson does not have standing to
assert the claim of a third party.25 We cited to the following
passage from Moore v. State: Standing questions are limited to
whether the litigant is a proper party to request an adjudication
of a particular issue and not whether the issue itself is
justiciable. 26 We have also held that a party generally does not
have standing to assert the federal constitutional rights of
another.27 We have, however, allowed third party standing where a
special relationship exists between the plaintiff and the third
party.28 Parents, for example, may assert the rights of their
minor children.29 No such special relationship exists between
Gilbert and Jan. Gilbert is Jans father, but she is not a minor
and there has been no allegation that Jan is unable to assert her
rights. She has instead chosen not to assert them.
Gilbert argues that he has standing because he was
allowed to intervene in the proceedings below and because the
court below issued findings declaring that continuing custody
with Gilbert would cause harm to Belinda. Aside from these
findings, Gilbert has no interest directly affected by the
termination. As the state argues, his claims belong to [Jan].
Gilbert claims that his relationship with the child was severed
by the termination order, but that is not the case. Gilbert
retains some visitation rights subject to the discretion of the
adoptive parents.30 The court took the relationship between
Gilbert and Belinda into account, expressing concern that a
previous foster family unilaterally cut off . . . contact between
Mr. [M.] and his granddaughter.
Furthermore, Gilberts participation in the proceedings
below was based chiefly on his status as Belindas grandfather
rather than as her Indian custodian. His rights, if any, as
Indian custodian were not at issue in the proceeding. The court
did not feel that Gilbert had enough at stake to be entitled to
participate personally, and allowed him to participate only
telephonically, stating Im not inclined to sign a transport order
in response to the suggestion that he attend in person. At the
March 12, 2003 trial setting conference, the court noted that
Gilberts rights as an Indian custodian were unclear and ordered
briefing on the matter. Gilbert was never referred to as the
Indian custodian again and no briefing appears in the record.
His attorney noted at trial that he was unsure whether Gilbert
could make any stipulations regarding Belinda since the petition
. . . is against the daughter. Gilberts rights were not changed
by the termination proceeding and he has no basis to challenge
the termination of Jans rights.
2. ICWA does not grant Gilbert standing.
Gilbert also argues that ICWA grants him standing.
Section 1911(c) of ICWA provides: In any State court proceeding
for the foster care placement of, or termination of parental
rights to, an Indian child, the Indian custodian of the child and
the Indian childs tribe shall have a right to intervene at any
point in the proceeding. If Gilbert is Belindas Indian
custodian, then it seems he would have a right to appeal the
termination. As we explain below, however, since his
incarceration Gilbert no longer has any basis to claim to be
Belindas Indian custodian; also, the superior court never found
him to be the Indian custodian even before he was incarcerated.
Gilbert thus is not granted standing to appeal by ICWA.31
Two additional factors provide support for our decision
to decline to reach the substantive issues of Gilberts appeal.
First is the best interests of the child. Belinda is nine years
old and has just been adopted by a tribally-approved family who
wish to maintain the childs continued contact with her Alaska
Native Culture and who have demonstrated a willingness and
ability to maintain the childs contact with her grandfather. To
upset this adoption on the basis of Gilberts complaints would not
be in Belindas best interests because it would return her to
legal limbo and could shatter the stability she has finally
achieved.
Moreover, Chitina acknowledges that reaching the merits
of Gilberts challenges to the standard of proof and the adequacy
of expert testimony would result in an advisory opinion. It
characterizes the appeal as raising two important issues of
significance for future cases and argues that the unique
circumstances of this case mandate that our decision would be
applied prospectively only. A decision that would have no effect
on the parties before the court is purely advisory and therefore
the appeal is nonjusticiable.
Since Gilbert does not have standing to appeal the
termination whether by virtue of his relationship to Belinda,
his purported status as an Indian custodian, or by his
relationship to Jan we decline to consider his challenges to the
termination proceeding.
B. Gilberts Remaining Claims Are Moot Because of His
Incarceration.
Although Gilbert does not have standing to appeal the
termination, he does have standing to appeal rulings that
directly affect his rights. The only issues that concern
Gilberts rights are the courts findings that placement of Belinda
with Gilbert would result in harm to Belinda and the courts
refusal, in the adoption proceedings, to order Belindas adoptive
parents to provide for visitation with Gilbert. Both questions
are intertwined with Gilberts status, or lack thereof, as
Belindas Indian custodian; his appeal thus implicitly asks for a
restoration or imposition of that status. The guardian ad litem
argues that these questions are moot because Gilberts
incarceration means that he cannot resume caring for the child.
Chitina appears to agree that the appeal is nonjusticiable but
asks us to rule on the substantive issues Gilbert has raised.
We have stated, Under ordinary circumstances we will
refrain from deciding questions where events have rendered the
legal issue moot.32 A matter is moot if it has lost its character
as a present, live controversy,33 or if the party bringing the
action would not be entitled to any relief even if [it]
prevail[s].34 In Akpik v. State, Office of Management and Budget,
for example, we held that challenges to the states approval of an
oil drilling project were moot once the driller had abandoned the
project and the period for approving the project had expired.35
Federal law defines Indian custodian as any Indian
person who has legal custody of an Indian child under tribal law
or custom or under State law or to whom temporary physical care,
custody and control has been transferred by the parent of such
child.36 Gilbert was never granted legal custody of Belinda by
either the tribe or the state. The only basis for Gilbert to
claim Indian custodian status was his temporary physical custody
of Belinda before his arrest in 2000. The court below assumed,
without deciding, that Gilbert had been Belindas Indian custodian
because Gilbert cared for Belinda before his arrest. Based on
this assumption, the court included him in the termination and
custody proceedings. The court never decided, though, whether
Gilbert was indeed Belindas Indian custodian. Regardless of
whether Gilbert previously was Belindas Indian custodian on the
basis of temporary physical care, custody, and control, he cannot
now achieve that status since he will almost certainly be
incarcerated for the entirety of Belindas minority.37 Indeed, he
will probably spend the rest of his life in prison. Thus any
claim premised on restoration of Gilberts Indian custodian status
is moot.38
C. Legislative Action Has Changed the Standard of Proof
Applicable to Active Efforts Findings.
As we discussed above, Gilbert does not have standing
to challenge the standard of proof the superior court used in the
termination proceeding to determine whether the state had made
active efforts to prevent the breakup of his family. Gilbert
argues that due process requires clear and convincing evidence
rather than a preponderance of the evidence to support a finding
that active efforts have been made.39 The state, Chitina, and
Belindas guardian ad litem all agree that clear and convincing is
the proper standard. Even though we decline to reach this
challenge because Gilbert lacks standing, we note that this
challenge has been made moot by legislative action.
On May 3, 2006, while this appeal was pending, the
governor signed legislation changing the applicable standard of
proof for the active efforts finding to clear and convincing.40
The legislation was made effective immediately and applied to
pending cases, such that the clear and convincing standard would
apply to Gilberts challenge.41 Even though we do not reach the
merits, we note that Gilberts appeal may have alerted the
legislature and executive of the need to address an important
issue in Alaska law. The conduct of Gilberts appointed counsel
in this case comports with the highest traditions of public
advocacy.
V. CONCLUSION
Gilbert does not have standing to appeal the
termination of Jans parental rights. The remainder of his
appeal is moot because of his incarceration. Accordingly we
AFFIRM the judgment of the superior court.
_______________________________
1 We have used pseudonyms throughout this opinion to
protect the privacy of family members.
2 25 U.S.C. 1903(4) (2000) (defining Indian child for
purposes of ICWA as any unmarried person who is under the age of
eighteen and is either a) a member of an Indian tribe or b) is
eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.).
3 Gilberts conviction and sentence are not part of the
trial court record in this case but we may take judicial notice
of them under Alaska Evidence Rules 201 and 203. Moreover, the
criminal judgment was included in the appellees motion to dismiss
Gilberts appeal as moot.
4 25 U.S.C. 1903(6) (2000) defines Indian custodian as
any Indian person who has legal custody of an Indian child under
tribal law or custom or under State law or to whom temporary
physical care, custody, and control has been transferred by the
parent of such child.
5 AS 47.10.011(6) provides that a child is in need of aid
if the court finds by a preponderance of the evidence that:
the child has suffered substantial physical
harm, or there is a substantial risk that the
child will suffer substantial physical harm,
as a result of conduct by or conditions
created by the childs parent, guardian, or
custodian or by the failure of the parent,
guardian, or custodian to supervise the child
adequately[.]
6 AS 47.10.011(10) provides, in relevant part, that a
child is in need of aid if:
the parent, guardian, or custodians ability
to parent has been substantially impaired by
the addictive or habitual use of an
intoxicant, and the addictive or habitual use
of the intoxicant has resulted in a
substantial risk of harm to the child.
7 See AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
8 See former CINA Rule 18(c)(2).
9 See AS 47.10.088(c).
10 See 25 U.S.C. 1911(c) (2000) (In any State court
proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, . . . the Indian childs
tribe shall have a right to intervene at any point in the
proceeding.).
11 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207-08 (Alaska 2000).
12 N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597, 600-01 (Alaska 2001); A.A. v. State, Div. of Family & Youth
Servs., 982 P.2d 256, 259 (Alaska 1999).
13 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
14 Jeff A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska
2005).
15 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
534 (Alaska 2005); Ulmer v. Alaska Rest. & Beverage Assn, 33 P.3d
773, 776 (Alaska 2001).
16 Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001).
17 Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska
1987).
18 Id.
19 Id.
20 Id.
21 Wagstaff v. Superior Court, Family Court Div., 535
P.2d 1220, 1225 n.7 (Alaska 1975) (quoting Kenneth Culp Davis,
Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613
(1968)).
22 93 P.3d 458 (Alaska 2004).
23 Id. at 464 n.10.
24 Id.
25 Id.
26 Moore v. State, 553 P.2d 8, 23-24 n.25 (Alaska 1976)
(quoting Flast v. Cohen, 392 U.S. 83, 100-01 (1968)). See also
Scammon Bay Assn, Inc. v. Ulak, 126 P.3d 138, 142-43 (Alaska
2005) (citing Graham v. City of Anchorage, 364 P.2d 57, 59
(Alaska 1961)) (failed intervenor has standing only to appeal
denial of intervention); Austin v. Fulton Ins. Co., 498 P.2d 702,
705 (Alaska 1972) (insurer could not appeal from summary judgment
granted to insurance agent against insured).
27 Falcon v. Alaska Pub. Officers Commn, 570 P.2d 469, 475
n.20 (Alaska 1977). A party may, however, assert anothers
constitutional rights if the other is unable. Cf. Barrows v.
Jackson, 346 U.S. 249, 257 (1953).
28 State ex rel. Depts of Transp. & Labor v. Enserch
Alaska Const., Inc., 787 P.2d 624, 630 n.9 (Alaska 1989).
29 Bonjour v. Bonjour, 592 P.2d 1233, 1241 n.15 (Alaska
1979).
30 Cf. Troxel v. Granville, 530 U.S. 57, 66-67 (2000)
(imposing grandparent visitation against wishes of parents
violates parents liberty interest in care and upbringing of their
children).
31 Section 1914 of ICWA provides that any . . . Indian
custodian from whose custody [an Indian] child was removed . . .
may petition any court of competent jurisdiction to invalidate
such action upon a showing that such action violated any
provision of sections 1911, 1912, and 1913 of this title. 25
U.S.C. 1914 (2000). Gilbert argues that his appeal may be
considered a petition under section 1914. As we explain below,
however, Gilberts Indian custodian status, if any, has been
mooted by his incarceration, as has any basis for a petition
under section 1914. We thus decline to consider whether an
appeal of an ICWA termination proceeding may properly be
considered a section 1914 petition.
32 Kodiak Seafood Processors Assn v. State, 900 P.2d 1191,
1195 (Alaska 1995).
33 Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532,
535 (Alaska 2005) (quoting Kodiak Seafood Processors, 900 P.2d at
1195).
34 OCallaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)
(quoting Maynard v. State Farm Mut. Auto Ins. Co., 902 P.2d 1328,
1329 n.2 (Alaska 1995)) (challenge to ballot substitutions moot
because terms of persons elected had expired).
35 Akpik, 115 P.3d at 535.
36 25 U.S.C. 1903(6) (2000).
37 Gilbert was convicted of fourteen felonies, eight of
which are class A felonies. AS 11.71.020(c). He was sentenced
to a total of twenty-five years presumptive imprisonment on three
of the A felonies. Under AS 33.16.100(d) Gilbert must serve at
least one-third of the twenty-five years, or eight years and four
months, before becoming eligible for discretionary parole.
Additionally, Gilbert faces a sentence of six years in another
proceeding. He has been convicted there of several class B
felonies for which a minimum of one-fourth of the sentence must
be served before eligibility for discretionary parole. AS
33.16.100(c). Gilbert is thus assured of incarceration for nine
years and ten months from July 8, 2004. Belinda turns eighteen
ten years and three months from that date. Thus even if Gilbert
is a model prisoner there is only the slightest chance that he
will be released before Belinda reaches adulthood.
38 While we may consider the merits of a moot issue if
such consideration is in the public interest, the facts of this
case do not meet the three-prong test for the public interest
exception enumerated in Kodiak Seafood Processors, 900 P.2d at
1196. Gilberts status as an Indian custodian is not likely to be
repeated, and the issues raised are not likely to evade review.
While the concerns raised are important, they do not justify
overriding the mootness doctrine.
39 See Santosky v. Kramer, 455 U.S. 745, 766-67 (1982).
40 Ch. 20, 1-3, 11, SLA 2006.
41 Ch. 20, 12-13, SLA 2006. The legislative action would
cause Gilberts constitutional challenge to be moot. See, e.g.,
Krohn v. State, Dept of Fish & Game, 938 P.2d 1019, 1023 (Alaska
1997) (Repeal of the regulations therefore moots the issues Krohn
raises.).
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