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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ted W. v. State, Dept. of Health & Social Services, Office of Children's Services (03/27/2009) sp-6349
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
| TED W., | ) |
| ) Supreme Court No. S- 13130 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-00259 CN | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH | ) No. 6349 March 27, 2009 |
| & SOCIAL SERVICES, OFFICE | ) |
| OF CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Dianne Olsen, Law Office of
Dianne Olsen, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney
General, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellee State
of Alaska. Angela Greene, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Mother.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
This appeal arises from the superior courts decision to
allow a mother to revoke the Indian custodian status for her
childs father, whose own parental rights to the child had already
been terminated. The fathers status as the childs Indian
custodian under the Indian Child Welfare Act was based solely on
the mothers temporary transfer of physical care and custody of
the child to the father after termination of his parental rights.
After the Office of Childrens Services (OCS) removed the child
from the father and became the childs temporary legal custodian,
the mother joined in OCSs motion to terminate the fathers status
as the childs Indian custodian. The superior court correctly
reasoned that because the Indian custodianship was created solely
by the mothers temporary placement of the child with the father,
that custodianship could be revoked by the mother who acted in
concert with OCS as the childs legal custodian. We therefore
affirm the superior courts decision.
II. FACTS AND PROCEEDINGS
A. Facts
Danny was born in November 1998 to Ted and Joanne.1
Danny is a member of the Native Village of Fort Yukon.2
Teds parental rights to Danny, as well as to Dannys
half-sister Teena, were terminated in April 2001.3 Joannes
parental rights remained intact. In affirming the termination of
Teds parental rights, we described Teds long history of alcohol
abuse, violence, and incarceration, including convictions for
manslaughter, malicious destruction of property, and criminal
mischief as well as multiple convictions for assaulting Joanne in
the childrens presence and assaulting Teenas mother while she was
pregnant.4 Ted appears to have stopped drinking in 2004, but he
relapsed on at least one occasion in the fall of 2007 when he was
arrested and incarcerated for driving under the influence.
With Joannes permission, Ted began having unsupervised
visits with Danny during weekends in 2002. By 2007 Danny was
spending most weekends at Teds home, from the time Ted picked him
up at school on Friday until Ted dropped him off on Sunday night.
In late spring of 2007, Ted tried to return Danny to Joannes
care, but no one was home. OCS had taken temporary custody of
four of Dannys half-siblings who had been living at the home that
Joanne shared with the half-siblings father. Ted recalled that
shortly before OCS told him to not return Danny to Joanne, Joanne
asked him to keep Danny because she didnt want the state involved
with [Dannys] life. Danny continued to live with Ted on a full-
time basis until August 2007 when OCS removed Danny from Teds
care and filed an emergency petition for adjudication of child in
need of aid (CINA) and for temporary custody. A few days after
Danny was placed in emergency foster care, he moved to the home
of his paternal aunt and supervised visits were arranged for Ted
and Joanne.
B. Proceedings
On August 8, 2007, OCS removed Danny from Teds home,
and the next day, it filed an emergency petition for adjudication
of child in need of aid and for temporary custody. Noting that
Teds parental rights to Danny had been terminated and that OCS
had substantiated that Ted sexually abused his daughter in 2002,
the petition concluded that OCS believed that Danny was a child
in need of aid because Joanne had left him with someone who has
no legal rights and is a known sexual offender.
Superior Court Master William Hitchcock held the first
hearing on the petition on August 10. OCS requested that the
trial court appoint counsel to represent Ted and that it
determine whether Ted was Dannys Indian custodian under the
Indian Child Welfare Act (ICWA). OCS also requested that the
probable cause hearing be continued until Ted was represented.
OCS later stipulated that Ted was an Indian custodian under ICWA:
Were presented with the somewhat unusual
situation of a father, who has previously had
his parental rights terminated, deemed,
according to the language of ICWA, as someone
who a parent transferred temporary physical
care, custody and control to. Today, the
department is agreeing that [Ted] is an
Indian custodian under that definition.
Joanne remarked that she did not oppose the father being an
Indian custodian. The superior court granted Teds request to be
an Indian custodian in September 2007, basing its order upon an
agreement by all parties.
In October 2007 the individual case plans for Ted and
Joanne had been established, requiring both of them to obtain
substance abuse evaluations and treatments, attend parenting
classes, and participate in other activities tailored to their
needs. By May 2008 Ted had completed all aspects of his case
plan except for obtaining a sex offender assessment and following
the subsequent recommendations. By then Joanne had been working
towards completing her case plan and assuming sole physical and
legal custody of Danny, but she had yet to find affordable
housing.
In a hearing before the master in December 2007, Ted
requested a trial because he planned to contest that Danny was a
child in need of aid. In February 2008 Superior Court Judge Sen
K. Tan held a pre-trial conference, where OCS argued that it was
not necessary to hold a trial to adjudicate whether Danny was a
child in need of aid. Joanne supported OCSs position. OCS
explained that Ted, the only party contesting Dannys status as a
child in need of aid, should be removed as a party to the case
because his Indian custodianship had dissolve[d]. During the pre-
trial conference, the parties and the court agreed that they
would brief the issue of dismissing Ted as a party to the case.
Soon after, Joanne, OCS, and Dannys guardian ad litem filed a
stipulation that Danny was a child in need of aid. That
stipulation was accepted by the superior court.
In March 2008 OCS filed a motion requesting that Teds
designation as Dannys Indian custodian be terminated. Joanne
joined the motion. Dannys guardian ad litem did not oppose the
motion on the condition that Danny would have supervised visits
with Ted. In the guardian ad litems view, it was in Dannys best
interests to continue visitation with Ted because they had a
relationship with each other. Ted opposed OCSs motion to
terminate his status as an Indian custodian. The superior court
granted the motion to terminate Teds Indian custodianship in May
2008, reasoning that OCS and Joanne had effectively withdrawn
Teds Indian custodian status because they were in agreement on
the issue and together they have sole legal and physical custody
of [Danny]. The trial court further concluded that a parent and
an Indian custodian cannot both be parties to a CINA case in
which ICWA applies.
Ted appeals.
III. STANDARD OF REVIEW
We review on a de novo basis such questions of law as
the superior courts interpretation of Indian custodian under
ICWA.5 We adopt the rule of law that is most persuasive in light
of precedent, reason, and policy.6 Absent plain error, we will
not review issues that were not raised in the trial court.7
Plain error exists where an obvious mistake has been made which
creates a high likelihood that injustice has resulted.8
IV. DISCUSSION
A. It Was Not Plain Error for the Superior Court To Grant
Teds Motion To Be Designated as Dannys Indian
Custodian.
The superior court granted Teds request to be
designated as Dannys Indian custodian [b]ased upon an agreement
by all parties that Ted was an Indian custodian under ICWA. The
Act 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.9 OCS
now argues that granting Teds motion to be designated as Dannys
Indian custodian was plain error because evidence supporting Teds
status as an Indian person under ICWA was never presented10 and
because the parties never agreed that Ted satisfied this
requirement for being an Indian custodian. But because the
parties agreed to treat Ted as Dannys Indian custodian and never
raised his qualifications or his status as an Indian person
below, we cannot determine on this record that granting Teds
request for Indian custodian status was plain error.
We will not consider issues on appeal that were not
raised below absent plain error, which exists where an obvious
mistake has been made which creates a high likelihood that
injustice has resulted.11 We have recognized that it is not
erroneous for a trial court to rely on a stipulation of the
parties, citing the general rule that [a] party may not challenge
on appeal an order that he has agreed to in the trial court.12
Similarly, parties are bound by their judicial admissions in the
superior court.13 In A.B.M. v. M.H., we rejected the prospective
adoptive parents contention that the child was not an Indian
child under ICWA because they signed an adoption questionnaire
that fully set out the definition of Indian child, and they
clearly indicated in the questionnaire that [the child] is an
Indian child, that her tribal affiliation is Bethel, and that she
is subject to the provisions of the Indian Child Welfare Act.14
OCS maintains that while it stipulated that Joanne had
transferred physical care, custody, and control of Danny to Ted,
it never agreed that Ted is an Indian person. But at the
continued probable cause hearing, OCS remarked:
Were presented with the somewhat unusual
situation of a father, who has previously had
his parental rights terminated, deemed,
according to the language of ICWA, as someone
who a parent transferred temporary physical
care, custody and control to. Today, the
department is agreeing that [Ted] is an
Indian custodian under that definition.
Joanne also indicated that she did not oppose the father being an
Indian custodian. At a later hearing, in which the parties
discussed with the court their plan to brief the question whether
Teds Indian custodianship could be terminated, the trial court
asked the parties if there were issues of fact that we need to
resolve before I can tackle the issue of whether [Ted] is an
Indian custodian and the parties agreed that there were no
factual issues to be resolved. Thus, this issue is not properly
before us.15
B. Teds Indian Custodianship Was Effectively Revoked Under
the Facts of This Case.
The superior court ruled that together, Joanne and OCS
could revoke Teds designation as the Indian custodian of Danny.
The court reasoned that the revocation was effective because
Joanne and OCS agreed that Teds Indian custodianship should be
terminated and together they have sole legal and physical custody
of the child. Ted contends that his status as Dannys Indian
custodian cannot be revoked during CINA proceedings because [t]he
role of an Indian custodian should logically end when the CINA
case ends.
The purpose of the Indian custodian status is to
recognize and protect the practice of parents in many Indian
communities who entrust their children temporarily to the care of
extended family members and to mandate that such entrustment does
not constitute abuse or neglect.16 As explained by the House of
Representatives in introducing the term Indian custodian:
[B]ecause of the extended family concept in
the Indian community, parents often transfer
physical custody of the Indian child to such
extended family member on an informal basis,
often for extended periods of time and at
great distances from the parents. While such
a custodian may not have rights under State
law, they do have rights under Indian custom
which this bill seeks to protect . . . .
Thus, the Indian caretakers status as an Indian custodian is
derived from the temporary transfer of care of the Indian child
by the parent. But Congress did not provide in ICWA that the
Indian custodian could usurp the parents right to raise the child
or prevent the parent from rescinding the Indian caretakers
designation as the childs Indian custodian.17 As long as their
parental rights have not been terminated, parents retain legal
custody of their children, affording them the responsibility for
making major decisions affecting the childs welfare.18
Here, it is uncontested that Teds status as Dannys
Indian custodian was created by Joannes temporary transfer of
Dannys physical care, custody, and control to Ted. And the
parties agree that Joanne could have revoked her temporary
transfer at any time before the CINA proceedings were initiated.
But they dispute the effect that OCSs removal of Danny from Teds
physical custody may have had on Joannes authority to revoke the
temporary transfer.
Ted argues that when OCS removed Danny from his care
and initiated the CINA proceedings on August 8, 2007, his status
as Dannys Indian custodian was established and could not be
altered until the end of the proceedings. Ted reasons that the
Indian custodian status exists as of the precise moment of the
filing of the child custody proceeding and that [t]he role of an
Indian custodian should logically end when the CINA case ends.
But Ted cites no authority in support of his position that Joanne
was not free to revoke his status once the CINA proceedings
commenced. And we have recognized that [b]ecause 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.19
Ted further contends that the superior courts premise
that together OCS and Joanne have sole legal and physical custody
of Danny is factually incorrect because only OCS has sole legal
and physical custody of Danny. Ted points to AS 47.10.084(a),
which provides that when a court finds that a child is in need of
aid, OCS is the childs legal custodian. But under that
provision, parents retain residual rights and responsibilities
that may include, but are not limited to, the right and
responsibility of reasonable visitation, consent to adoption,
consent to marriage, consent to military enlistment, consent to
major medical treatment . . . , and the responsibility for
support . . . .20 As OCS notes, examination of the residual
rights retained by a parent indicates that the legislature
intended to reserve to parents the ability to have input into
decisions of great importance to a childs future. And the
ability to withdraw a temporary transfer of physical custody of a
child is of the same order of importance as those provided as
examples in AS 47.10.084.21
Because the only basis for Teds status as an Indian
custodian was Joannes temporary transfer, because she possessed
the authority to revoke the transfer at any time before OCS took
custody of Danny, and because Joanne and OCS acted jointly to
rescind the earlier transfer, the condition under which Ted met
ICWAs definition of Indian custodian no longer existed.22
Accordingly, we affirm the trial courts order terminating Teds
designation as an Indian custodian.23
V. CONCLUSION
For the above reasons, we AFFIRM the superior courts
decision to terminate Teds Indian custodianship on the grounds
that in this case the Indian custodianship was effectively
revoked.
_______________________________
1 We adopt the pseudonyms used by the parties to protect
the family members privacy.
2 The tribe was notified of its right to intervene, but
it declined to do so. Through Joannes affiliation with the
Native Village of Gambell, Danny is eligible for membership with
that tribe. Gambell was also notified of its right to intervene,
and it informed the superior court that it did not intend to
intervene.
3 T.D.W. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., Mem. Op. & J. No. 10177, 2002 WL 863289,
at *3 (Alaska, May 1, 2002).
4 Id. at *1-2.
5 Pam R. v. State, Dept of Health & Social Servs., Office
of Childrens Servs., 185 P.3d 67, 71 (Alaska 2008).
6 Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
7 D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001).
8 Id. at 668 (internal quotation marks omitted).
9 25 U.S.C. 1903(6) (2000). ICWAs definition of Indian
custodian contains two classifications of Indian caretakers.
Craig J. Dorsay, The Indian Child Welfare Act and Laws Affecting
Indian Juveniles Manual 89 (1984). Only the second class Indian
persons to whom temporary physical custody of an Indian child has
been transferred is implicated in this case.
10 25 U.S.C. 1903(3) defines Indian as any person who is
a member of an Indian tribe, or who is an Alaska Native and a
member of a Regional Corporation as defined in section 1606 of
Title 43.
11 D.J., 36 P.3d at 667-68 (internal quotation marks
omitted).
12 R.C. v. State, Dept of Health & Social Servs., 760 P.2d
501, 505 (Alaska 1988) (alteration in original and internal
quotation marks omitted).
13 A.B.M. v. M.H., 651 P.2d 1170, 1174 (Alaska 1982)
(citing IX J. Wigmore, Evidence 2588, at 586 (1940); C.
McCormick, Law of Evidence 262, at 630 (1972)).
14 Id.
15 Moreover, OCS fails to point to any evidence in the
record that would support a finding that Ted is not an Indian
person.
16 See H.R. Rep. No. 95-1386, at 10 (1978), reprinted in
1978 U.S.C.C.A.N. 7530, 7532 (observing that many social workers,
ignorant of Indian cultural values and social norms, . . .
frequently discover neglect or abandonment where none exists
because they misunderstand the dynamics of Indian extended
families that may include more than a hundred relatives who are
considered close and responsible family members and to whom
parents can entrust care of their children); id. at 20, reprinted
in 1978 U.S.C.C.A.N. 7530, 7543 (explaining that ICWA seeks to
protect the rights under Indian custom of people with whom
parents entrust temporary care of their children).
17 See id. (noting that among the rights of the Indian
custodian that ICWA seeks to protect is the right to protect the
parental interests of the parents but not placing the Indian
custodians rights above those of the parents).
18 D.J. v. P.C., 36 P.3d 663, 670 & n.26 (Alaska 2001)
(internal quotation marks omitted).
19 Pam R. v. State, Dept of Health & Social Servs., Office
of Childrens Servs., 185 P.3d 67, 71 (Alaska 2008). Pam R. is
distinguishable from the present situation because Joanne did not
reassume responsibility for Dannys care when she asked the court
to terminate Teds Indian custodianship of Danny while Danny was
in the States custody.
20 AS 47.10.084(c).
21 Because OCS agreed with Joanne that Teds custodianship
should be terminated, we need not address the question whether
Joanne could revoke Teds Indian custodianship over OCSs
objection. Moreover, the parties do not raise any argument that
Joanne lacked the capacity to revoke the Indian custodianship or
that she was coerced by OCS into consenting to its termination.
22 Ted argues that the superior court erred in failing to
address his contention that a decision to terminate his Indian
custodianship required finding that doing so would be in Dannys
best interests. But once Ted no longer satisfied the condition
under which his Indian custodian status was created, he had no
authority for asserting that it was in Dannys best interests that
he be a party to the case.
23 In affirming on this ground, we need not address the
trial courts alternative ground for revoking Teds Indian
custodianship and thus do not reach the question whether both a
parent and an Indian custodian can be parties to a CINA case in
which ICWA applies. See M.J.S. v. State, Dept of Health & Soc.
Servs., Div. of Family & Youth Servs., 39 P.3d 1123, 1126 n.12
(Alaska 2002) (Our decision affirming the superior court on this
ground makes it unnecessary to address the courts findings on
alternative grounds . . . .).
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