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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pam R. v. State, Dept of Health & Social Services, Office of Children's Services (5/23/2008) sp-6266

Pam R. v. State, Dept of Health & Social Services, Office of Children's Services (5/23/2008) sp-6266, 185 P3d 67

     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

PAM R., )
) Supreme Court No. S- 12742
Appellant, )
) Superior Court Nos. 3AN-05-371/372 CN
v. ) and 3AN-06-368 CN
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, OFFICE OF ) No. 6266 - May 23, 2008
CHILDRENS SERVICES, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District, Anchorage,  Sen  K.  Tan,
          Judge.

          Appearances:   Christi A.  Pavia,  Pavia  Law
          Office   LLC,   Anchorage,   for   Appellant.
          Michael   G.  Hotchkin,  Assistant   Attorney
          General,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee. Anita
          L.   Alves,  Assistant  Public  Advocate  and
          Joshua  P.  Fink, Public Advocate, Anchorage,
          for Guardian ad Litem.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti,  and Winfree, Justices. [Matthews,
          Justice, not participating.]

          WINFREE, Justice.

I.   INTRODUCTION
          A  grandmother appeals from a trial court determination
that  she  is not the Indian custodian of her three grandchildren
under  the Indian Child Welfare Act.  The trial court found  that
contrary  to  her  urgings, the grandmother  was  not  an  Indian
custodian by tribal custom or by transfer of physical custody  of
the  children; she argues that the courts findings are erroneous.
There  is sufficient evidence in the record to support the  trial
courts findings, and we therefore affirm.
II.  FACTS AND PROCEEDINGS
     A.   Facts1
          Mark  and  Sally have three sons, Max (born  in  2002),
George (born in 2004), and Edward (born in 2006).  Mark has  some
Alaska  Native heritage, and Sally is an enrolled member  of  the
Native  Village  of  Kotzebue.  Pam R.,  the  childrens  maternal
grandmother, is an Alaska Native.  Each of the three children  is
an  Indian child2 within the meaning of the Indian Child  Welfare
Act of 19783 (ICWA).
          From  the time of Maxs birth until mid-May 2005,  Mark,
Sally,  and the children generally led somewhat of a chaotic  and
nomadic  lifestyle,  residing with a  variety  of  relatives  and
friends.  The trial court observed that [i]t is really impossible
to  determine  accurately  where the parents  and  children  have
resided since 2002.
          In  early May 2005 Mark was incarcerated for assaulting
Sally;  Sally  briefly disappeared, leaving Max and  George  with
Pam.   Pam  sought  help from Marks parents,  the  Olivers.   The
Olivers  took Max and George to their home and indicated  to  OCS
that  they wanted the children to remain with them.  But at  that
time,  the  OCS social worker believed there was not a sufficient
basis  to  justify removing the children from Sallys custody  and
recommended that they be returned to her.
            Later in May 2005 an OCS social worker met with Sally
and  Pam  and  devised a care and safety plan to  allow  Max  and
George  to remain with Sally in Pams home.  The plan specifically
provided that Pam would be responsible to care for [the] children
and [would] not allow any unsupervised contact between [Sally and
the]  children and that Pam was not to allow Sally  contact  with
the  children  if Sally were under the influence of  drugs.   The
trial  court later found that this care and safety plan  did  not
grant [Pam] custody over the children, but made her [Sallys]  and
the childrens supervisor.
          Mark  was released from jail in June 2005 and regularly
saw the children despite a restraining order barring contact with
Sally.  Sally decided when the children would visit with Mark and
the  Olivers.   Mark again was incarcerated in August  2005,  and
Sally  also was incarcerated briefly at about this same time  for
assaulting  Marks  sister.  After Marks release,  he  joined  the
children at Pams home for about ten days.
          Mark  called  OCS  in early November  2005  to  express
concerns  that Max and George were living in a crack  house  with
Sally.   An OCS social worker, accompanied by local police,  went
to the trailer where Mark had alleged Sally and the children were
living.  When no one answered the door, the social worker  called
Pam  and  asked where the children were.  Pam first  stated  that
they  were  with her, but when the social worker asked to  visit,
Pam  admitted  that Max was with Sally.  Pam  soon  came  to  the
trailer, and, observed by the social worker, brought Max out with
          her.  When Sally came out of the trailer, she appeared to be
under  the  influence of drugs.  The OCS social worker  described
the  trailer as an ice block.  It had an uncovered broken window,
numerous  boarded-up windows, exposed pipes,  and  only  a  small
space heater in a back room.
          OCS  told Sally that she must consent to giving custody
of  Max  and  George to the Olivers or OCS would  take  emergency
custody  of  them.4   OCS did not consider whether  Pam  had  any
rights  as  an  Indian  custodian.5  Sally agreed  to  place  the
children  with  the Olivers under the terms of  a  new  care  and
safety plan.
          In December 2005 OCS filed a petition to adjudicate Max
and  George  children in need of aid based  on  Sally  and  Marks
history  of substance abuse and domestic violence.  The  Kotzebue
IRA Council/Native Village of Kotzebue (the Tribe) intervened and
was  granted an equal right to notice and to participate  in  all
proceedings in [the] case.  Mark and Sally later stipulated  that
Max  and  George were children in need of aid and agreed to  work
case plans with OCS for reunification of the family.
          In  April  2006  OCS recommended that the  children  be
committed  to  OCSs  custody  for up  to  two  years,  and  at  a
disposition  hearing  the  trial court found  the  ICWA  relative
placement  with  the  Olivers  to be  in  Max  and  Georges  best
interests.   The  court also recognized that Pam  was  trying  to
assert rights as the childrens Indian custodian and appointed  an
attorney  to  represent her.6  Pam sought  to  intervene  in  the
termination proceedings in August 2006.
          On October 9, 2006, Sally gave birth to Edward at home.
Sally  and  Edward were transported to a hospital,  where  Edward
tested  positive for cocaine and was found to have several  other
health  concerns.  The next day, October 10, 2006, an OCS  social
worker  notified the hospital staff that OCS was assuming custody
of  Edward.7   Sally was not informed of this by  OCS,  but  when
Sally told hospital staff that Pam was going to take Edward home,
she  was advised that it would be up to OCS and that [they would]
have to have a meeting with OCS.
          On  October 11, 2006, a team decision meeting was  held
at  the hospital to discuss Edward.  Sally and Pam apparently had
agreed prior to Edwards birth that Pam would take care of Edward,
and  at  the meeting they presented a form document memorializing
Sallys  designation of Pam as Edwards Indian custodian.8  An  OCS
social  worker  then informed them that Edward already  had  been
taken  into emergency custody and that a disposition hearing  had
been scheduled.9
     B.   Proceedings
          A  hearing on Pams status as the three childrens Indian
custodian was held over three days in January and February  2007.
Sally  and  Pam  advocated for Pams designation as the  childrens
Indian  custodian; Mark objected.  The guardian ad litem for  the
children opposed Pams designation as Indian custodian.
          It  was  clear that for the majority of time  from  May
through  early November 2005, Max and George lived in Pams  home,
but  at  trial  the parties characterized Pams role  in  the  two
childrens  lives  very  differently.  Sally  considered  Pam  the
          childrens default mother, assuming that Pam would always be there
for  Max  and  George  and leaving them with Pam  for  indefinite
periods  of  time.  Pam agreed, testifying that she  was  like  a
mother  to  the children and that they were always around  [her].
Mark  testified that Pam was more like a babysitter.  Sally  also
testified  that she and Mark decided where the family would  live
and made all of the medical decisions for the boys.  Marks mother
testified  that [e]verything was always up to [Sally], and  other
testimony  reflected  that Sally was the  primary  decision-maker
when  she  was present, although she was frequently elsewhere  or
unavailable.
          Mary  Schaeffer,  a member of both the Kotzebue  tribal
council  and the Tribes social services committee and a qualified
expert  on  Kotzebue tribal customs, testified that  Pam  was  an
Indian custodian for the children under the Tribes customs.   She
also  testified that Kotzebues Native culture never had that kind
of   [family]  dispute  [about  the  designation  of  an   Indian
custodian]  where  it cant be resolved, but if  family  consensus
could  not be reached, a dispute likely would be resolved by  the
tribal court.10
          The trial court noted that as represented by Schaeffer,
the Tribes conceptualization of an Indian custodian was fluid and
based  on observations of who [was] taking care of their children
when  the  parents  are  absent or are  unavailable.   The  court
concluded  that  as  a  matter of law ICWA  requires  a  narrower
interpretation than the definition Pam sought and that an  Indian
custodian  is  not just a caregiver or an addition to  a  parent;
rather,  an Indian Custodian is a person who stands in the  place
of a parent in a CINA proceeding.  The court went on to find that
Pam  was  not  the  childrens Indian custodian by  tribal  custom
because  [t]he  children were not consistently or exclusively  in
her  care,  and it was the parents who maintained both legal  and
physical custody of the boys.
          On this same basis, the trial court also found that Pam
was not the childrens Indian custodian through temporary physical
custody.   Finally, the court found that even if Pam at one  time
had  temporary physical custody of Max and George, it was revoked
when OCS assumed their legal custody and Mark and Sally agreed to
OCS case plans for reunification of the family.
          Pam appeals, arguing that both her physical custody  of
the  children  and  tribal custom qualify her  as  the  childrens
Indian  custodian under ICWA and that the trial  court  erred  in
finding otherwise.
III. STANDARD OF REVIEW
          We  apply  the  clear error standard when  reviewing  a
trial  courts factual findings,11 reversing only where we have  a
definite and firm conviction that a mistake has been made.12  When
reviewing  factual  findings we ordinarily will  not  overturn  a
trial courts finding based on conflicting evidence,13 and we will
not  reweigh evidence when the record provides clear support  for
the trial courts ruling;14 it is the function of the trial court,
not  of  this court, to judge witnesses credibility and to  weigh
conflicting  evidence.15  Questions of law   such  as  the  trial
courts  interpretation  of  Indian  custodian  under  ICWA    are
          reviewed de novo.16
IV.  DISCUSSION
     A.   Introduction
          Because no state or tribal court order had placed legal
custody  of  the  children with Pam, Pam could be  the  childrens
Indian custodian only by tribal custom or by parental transfer to
her  of the temporary physical care, custody, and control of  the
children.17  ICWA does not define or otherwise explain  temporary
physical care, custody, and control.18  Pam asserts that  neither
ICWA  nor  state  law  articulates  any  relevant  standards   of
exclusivity  or  duration of care, and OCS does not  present  any
relevant objective criteria.  Other jurisdictions have noted that
a  court  should consider the nature, frequency, and duration  of
contacts  when  making a determination whether  a  nonparent  had
physical  care  of  a  child.19  Because under  ICWA  a  physical
custodians right to care for a child flows solely from a  parents
temporary  transfer of child-care responsibility,  the  custodial
relationship  logically  may  end  when  a  parent  returns   and
reassumes  responsibility  for  the  childs  care,  custody,  and
control.
     B.   Physical Custody
          1.   Max and George
          The  trial court acknowledged that Pam was very  active
and  involved as a grandparent to Max and George, and  that  they
spent  a great deal of time with her both with and without  their
parents.   But  the court found that despite the familys  chaotic
and nomadic lifestyle, the children were with the parents most of
the time, the parents made the decisions where the children would
reside, and without exception the parents brought the children to
medical appointments or for emergency treatment.  The court found
that  the children were not consistently or exclusively  in  Pams
care;  rather  it was the parents who maintained both  legal  and
physical custody of the boys[,] and objectively the facts do  not
support the proposition that either parent ceded legal custody or
transferred temporary physical custody to Pam.  Accordingly,  the
court  found  that  Pam was not Max and Georges Indian  custodian
through physical custody.
          Pams  challenge to the finding that she is not Max  and
Georges Indian custodian through physical custody is built on (1)
attacking  the  trial  courts  underlying  finding  about   Marks
consistent  involvement  in  decision-making  for  the  children;
(2)  arguing  as a matter of statutory interpretation  that  ICWA
allows one parent to transfer physical custody of children to  an
Indian  custodian; and (3) arguing that as a matter of law  there
is insufficient evidence to support the trial courts finding that
Sally  did  not transfer temporary physical custody  of  Max  and
George to Pam.
          Pams   attack   on  the  courts  finding  about   Marks
involvement  with the children has some merit  he  may  have  had
frequent  contact  with the children before  May  2005,  but  his
contact  with  them after his incarceration for assaulting  Sally
was infrequent at best.  But while Marks role as an active parent
may  have  been overstated by the trial court, after  considering
the  entire  record we hold that the courts finding that  neither
          parent transferred physical custody to Pam is not clearly
erroneous.    The  court  heard  conflicting  testimony,20   made
credibility determinations, weighed the evidence, and reached its
conclusion.  We defer to the trial court and therefore affirm the
finding,  without having to address Pams statutory interpretation
argument  that only one parent is necessary for the  transfer  of
physical custody to an Indian custodian.
          2.   Edward
          Edward  warrants a different analysis.  Pam  and  Sally
claimed that before his birth they agreed Pam would take care  of
him,  and a document to that effect was produced at OCSs  October
11  meeting.   But  the trial court found that  OCS  had  assumed
emergency custody of [Edward] prior to any attempt by [Sally]  to
transfer legal custody to her mother.
          Given  Edwards birth and immediate hospitalization  and
the  timing  of events at the hospital, including OCSs assumption
of  emergency custody over Edward the day before Sally signed the
ICWA  designation  form for Pam to be his  Indian  custodian,  we
cannot  conclude  that  this finding is  clearly  erroneous.   We
affirm the finding that Edwards temporary physical care, custody,
and control had not been transferred to Pam prior to OCS assuming
emergency custody of him, and therefore that Pam was not  Edwards
Indian custodian through physical custody.
     C.   Tribal Custom
          Mary  Schaeffer, an expert on Kotzebue tribal laws  and
customs,  testified that the Tribes customs recognize  an  Indian
custodian for purposes of ICWA when a parent entrusts the care of
his  or  her  child  to  [that] person.  She  testified  that  no
specific  words or written agreements are required,  nor  is  the
affirmative consent of both parents necessarily required.   Based
on  facts presented to her by Pams attorney, Schaeffer ultimately
concluded  that  Pam  was  an Indian custodian  of  the  children
pursuant to tribal custom:  I think if you want to put it down on
paper,  she is . . . an Indian custodian.  From our culture,  she
is already one . . . we need to think about the kids.  Theres got
to  be  stability with the family.  But she also  testified  that
Marks  objection  to  Pam as the Indian custodian  could  not  be
resolved under tribal custom without bringing it before a  tribal
court.
          We   conclude  from  Schaeffers  testimony   that   Pam
qualified  to be the childrens Indian custodian based  on  tribal
custom,  but  because  Mark objected to her designation  and  the
tribal court had not resolved the dispute, Pam had not yet become
the  childrens  Indian  custodian  through  tribal  custom.    We
therefore  affirm the trial courts finding that Pam  is  not  the
childrens Indian custodian under tribal custom, without  deciding
whether  the court properly interpreted the depth and breadth  of
ICWAs definition of Indian custodian.
V.   CONCLUSION
          We  AFFIRM the trial courts determination that  Pam  is
not the childrens Indian custodian under ICWA.

_______________________________
     1    Pseudonyms are used for all family members.

     2    See 25 U.S.C.  1903(4) (2000).

     3     25 U.S.C.  19011963.  ICWA establishes minimum Federal
standards for the removal of Indian children from their  families
and  [for]  the placement of such children in foster or  adoptive
homes which will reflect the unique values of Indian culture.  25
U.S.C.  1902 (2000).  As this court recently observed:

               The   Act   establishes  a  system   for
          ensuring   tribal  participation   in   state
          procedures  for placing Native  children  and
          provide[s] for tribal court jurisdiction over
          many child welfare proceedings.  In addition,
          the   Act  creates  a  series  of  procedural
          safeguards that limit the circumstances under
          which  Indian  children may be  removed  from
          their family homes.
          
State,  Dept  of  Health & Soc. Servs., Div. of  Family  &  Youth
Servs.  v.  Native  Vill. of Curyung, 151 P.3d 388,  412  (Alaska
2006).

     4     AS  47.10.142 and CINA Rule 6(a) permit OCS to  assume
emergency custody of a child without court order, but require OCS
to file a petition within twenty-four hours when it is determined
that continued custody is necessary to protect the child.

     5    ICWA recognizes and accords certain rights to an Indian
custodian, who is any Indian person who has legal custody  of  an
Indian child under tribal law or custom or under State law or  to
whom  temporary  physical care, custody,  and  control  has  been
transferred  by  the parent of such child.   25  U.S.C.   1903(6)
(2000).  See discussion infra note 6.

     6     ICWA contemplates that an Indian custodian will  share
or  assume  many of the rights possessed by custodial parents  in
child custody proceedings.  Under ICWA, rights possessed by  both
an  Indian  childs parent and Indian custodian in relation  to  a
custody  proceeding  include:  (1) the  right  to  notice  of  an
involuntary  proceeding  and to obtain a continuance,  25  U.S.C.
1912(a)  (2000); (2) the right to participate as  a  party  in  a
state  court  proceeding for foster care placement or termination
of  parental rights, see 25 U.S.C.  1911(c) (2000) (giving Indian
custodian  right  to intervene); (3) the right to court-appointed
counsel if indigent, 25 U.S.C.  1912(b) (2000); (4) the right  to
avoid  a childs removal from a parent or Indian custodian or  the
termination of a parents parental rights unless a showing is made
that  continued  custody of the child by  the  parent  or  Indian
custodian  is likely to result in serious emotional  or  physical
damage to the child, 25 U.S.C.  1912(e)(f) (2000); (5) the  right
to  voluntarily consent to a foster care placement and the  right
to withdraw such consent at any time and have the child returned,
25  U.S.C.  1913(a)(b) (2000); (6) the right to petition a  court
to invalidate a foster care placement or termination of a parents
parental rights when the Indian child was removed from the parent
or  Indian  custodians custody in violation of certain provisions
of  ICWA,  25 U.S.C.  1914 (2000); and (7) the right to  have  an
Indian  child returned when a petitioner in a state  court  child
custody proceeding improperly removes or retains custody  of  the
child,  unless  the child would be endangered,  25  U.S.C.   1920
(2000).

          If  Pam  were  the  childrens Indian  custodian,  these
provisions  would  have given her the right to participate  as  a
party  in  the termination proceedings and perhaps the  right  to
require that the children be returned to her.

     7    See supra note 4.

     8     This  form  document provided that  Sally  was  hereby
transfer[ring] the care and custody of Edward to Pam,  authorized
Pam to consent to medical treatment and hospital care for Edward,
and  expressed  that  the  placement is revocable  [under]  ICWA.
Sallys  signature  was  dated  October  11,  2006,  as  was  Pams
signature confirming her acceptance.  Pam testified that she  and
Sally signed the document during the meeting; Sally testified she
could not recall when she signed it.

     9     OCS  filed  the emergency petition just prior  to  the
meeting.   The  initial  petition for  emergency  custody,  filed
October 11, 2006, reported that OCS had taken Edward into custody
that day.  In an amended petition filed on November 6, 2006,  OCS
indicated  that custody of Edward had been taken on  October  10,
2006.

     10     Schaeffer also testified that the tribal council  had
passed  a  resolution finding that Pam was the  childrens  Indian
custodian,  but  it  is  not clear if the resolution  took  Marks
objection into account; the parties do not discuss the resolution
in  their  briefs.   The Tribe is not involved  in  this  appeal,
having given notice that:  The Social Services Committee has  met
and  discussed  the  matter.  The members of the  Committee  have
decided they do not wish to take a position regarding the  appeal
of  the  [trial  courts] decision that [Pam] was  not  an  Indian
Custodian based on the facts of the case.

     11    Brynna B. v. State, Dept of Health & Soc. Servs., Div.
of  Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (citing
A.B.  v.  State, Dept of Health & Soc. Servs., 7  P.3d  946,  950
(Alaska 2000)).

     12     A.B., 7 P.3d at 950 (quoting R.J.M. v. State, Dept of
Health & Soc. Servs., 973 P.2d 79, 84 (Alaska 1999)).

     13    Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003) (citing In
re Friedman, 23 P.3d 620, 625 (Alaska 2001)).

     14    D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 214 (Alaska 2000).

     15     In  re  Adoption of A.F.M., 15 P.3d 258, 262  (Alaska
2001)  (quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska
1999)).

     16    D.M., 995 P.2d at 207.

     17    See 25 U.S.C.  1903(6) (2000).

     18    Under state law, physical custody is the responsibility
for  physical care and immediate supervision of the child.   D.J.
v.  P.C., 36 P.3d 663, 670 n.26 (Alaska 2001) (citing Bennett  v.
Bennett, 6 P.3d 724, 726 (Alaska 2000)); cf. AS 25.30.909(14).

     19    In re L.F., 121 P.3d 267, 270 (Colo. App. 2005).

     20    See, e.g., the sampling of trial testimony supra p.7.

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