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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Native Village of Tununak v. State, Dept. of Health & Social Services, Office of Children's Services (6/21/2013) sp-6788
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
NATIVE VILLAGE OF TUNUNAK, )
) Supreme Court No. S-14562
Appellant, )
) Superior Court No. 3AN-08-00259 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6788 - June 21, 2013
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Frank A. Pfiffner, Judge.
Appearances: James J. Davis, Jr. and Sydney Tarzwell,
Alaska Legal Services Corporation, Anchorage, for
Appellant. Jacqueline G. Schafer, Assistant Attorney
General, Anchorage, and Michael C. Geraghty, Attorney
General, Juneau, for Appellee. Heather Kendall-Miller and
Erin C. Dougherty, Native American Rights Fund,
Anchorage, for Amicus Curiae Native Village of Kotzebue.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
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I. INTRODUCTION
The Indian Child Welfare Act (ICWA)1 establishes adoptive placement
preferences for placing an Indian child with a member of the child's extended family,
with other members of the child's tribe, or with other Indian families.2 A court may
deviate from these preferences only upon a showing of good cause.3 ICWA does not
state what standard of proof applies to the good cause determination, nor does it state
what factors a court must consider in determining whether there is good cause to deviate
from the preferences.
In this child in need of aid (CINA) case, the Office of Children's Services
(OCS) placed a Native child in a non-Native foster home while working with her mother
towards reunification.4 Over two years later, the superior court terminated the parents'
parental rights. The child's maternal grandmother and tribe sought to enforce ICWA's
placement preferences. Meanwhile, the child's foster parents petitioned for adoption.
The superior court found that there was good cause to deviate from the ICWA adoptive
placement preferences and that the grandmother was not a suitable placement for the
child.
1 25 U.S.C. 1901 et seq. (2006).
2 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 child's
extended family; (2) other members of the Indian child's
tribe; or (3) other Indian families.
3 Id.
4 See id. 1915(b).
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The tribe appeals, arguing: (1) the superior court applied the wrong
standard of proof to the good cause determination; (2) some of the superior court's
findings were not supported by sufficient evidence; and (3) the findings were not
sufficient to support the court's good cause determination.
This appeal requires us to reexamine policies that underlie ICWA. Though
we have previously held that the preponderance of the evidence standard set forth in
Adoption Rule 11 applies, upon closer review we conclude that ICWA implicitly
mandates that good cause to deviate from ICWA's adoptive placement preferences be
proved by clear and convincing evidence. To the extent our prior cases hold otherwise,
they are overruled. We therefore vacate the superior court's decision and remand for
further proceedings in which the superior court shall apply the clear and convincing
standard of proof to the good cause determination. We do not reach all the issues raised
on appeal because we are remanding, but we address some of the tribe's arguments
regarding the good cause determination to provide guidance to the superior court and the
parties on remand. We also clarify the analysis necessary when a party challenges the
suitability of a preferred placement.
II. FACTS AND PROCEEDINGS
A. Termination Of Parental Rights
5 6
Dawn F. is an Indian child as defined by ICWA. OCS assumed custody
of Dawn when she was approximately four months old. The superior court found that
she was a child in need of aid pursuant to AS 47.10.011(9) (neglect), (10) (substance
abuse), and (11) (mental health issues), and ultimately terminated the parental rights of
5 Pseudonyms are used for the daughter, the mother, the grandmother, and
the foster/adoptive parents to respect their privacy.
6 See 25 U.S.C. 1903(4).
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both of her parents. Dawn's parents did not appeal the termination of their parental
rights.
B. Pre-Termination Placement
ICWA provides that when selecting foster care, preadoptive placement, or
adoptive placement for an Indian child, preference must be given to a member of the
child's extended family unless there is "good cause" to deviate from this placement
preference.7 OCS assumed custody of Dawn in July 2008 and placed her in emergency
foster care in Anchorage. Native Village of Tununak ("the Tribe") intervened in Dawn's
CINA case and submitted a list of potential placement options for Dawn, including
placement with her maternal grandmother, Elise F., who lives in the village. Elise and
a representative from the Tribe met with OCS in July and September to discuss
placement options for Dawn, and a tribal ICWA social worker contacted OCS in
September to inquire about efforts to place Dawn with Elise.
Elise was ruled out as a viable placement option at that time: an adult son
living in her home had been convicted of driving under the influence in 2005, and there
was a bench warrant out for his arrest because he had failed to complete an alcohol safety
program as required by his sentence. OCS concluded that his conviction constituted a
barrier-crime for placement purposes. Other family members also were ruled out for
various reasons, including criminal and child protective histories. OCS placed Dawn in
a non-Native foster home in Anchorage to facilitate visitation with her mother, Jenn F.,
who lived in Anchorage.
In November 2008 the parties stipulated that there was good cause to
deviate from ICWA placement preferences while a search for preferred placements
7 Id . at 1915(a)-(b). The statute also specifies other preferred placements
that are not at issue in this case. See id .
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continued. In March 2009 the superior court found there was good cause to continue
deviating from ICWA placement preferences and allow Dawn to remain in Anchorage
to facilitate visitation with Jenn, who was making "great progress towards reunification"
at that time. The guardian ad litem later testified that moving Dawn away from Jenn
would have effectively terminated their relationship, given Dawn's young age.
Grandmother Elise testified that she did not pursue placement at that time because she
hoped Dawn and Jenn would be reunited.
In August 2009 Elise contacted OCS to report that her son had moved out
of her home and to confirm that she was still interested in placement. In October 2009
an ICWA social worker for the Association of Village Council Presidents (Village
Council Presidents or AVCP) asked OCS to do a "walk through" of Elise's home. At
a six-month conference in November 2009, an OCS social worker noted that Elise was
able to take Dawn and wanted permanent placement. In December 2009 a representative
from the Village Council Presidents visited Elise's home on OCS's behalf and completed
a Foster Home Visit Worksheet as part of the foster-care licensing process. The report
noted a number of potential hazards in the home that needed to be addressed before
placement could occur, including unsecured fuel, guns, medicine, and cleaning supplies,
as well as plastic bags and "clutter" in Dawn's potential bedroom. In February 2010
OCS discussed these concerns with Elise, and she said that she planned to address them.
OCS asked Elise to arrange for a second home visit once these tasks had been completed.
Meanwhile, in October 2009 OCS placed Dawn with Kim and Harry Smith,
another non-Native foster home in Anchorage, because Dawn's previous foster parents
could not provide the high level of attention she required. At that time Dawn was easily
upset, difficult to soothe, and prone to tantrums and emotional outbursts. Physical and
occupational therapy was recommended for Dawn because at ten months of age she
tested in the five-to-six-month range for language and motor skills. According to an
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OCS social worker, the Smiths' home was very calm and quiet, and they were able to
give Dawn the one-on-one attention that she needed.
In December 2009 Elise visited Anchorage, and Kim arranged for her to
visit with Dawn. Kim gave Elise her address and phone number, asked her to keep in
contact, and asked her to send a photograph of herself to Dawn. Kim sent a Christmas
card to Elise with photographs of Dawn. Elise did not call or write, and Kim was not
able to reach her at the phone numbers she had provided.
In January 2010 the Village Council Presidents contacted OCS to ask about
the status of Dawn's potential placement with Elise. An OCS social worker explained
that OCS had conducted a home visit and Elise had confirmed that she needed to clear
out a room for Dawn. The social worker also stated it was her "understanding that
[Elise] is holding off on having [Dawn] placed with her at this point, because that would
prevent [Jenn] visiting with [Dawn]."
In May 2010 Elise attended a visit with Jenn and Dawn. She told an OCS
social worker that she did not want placement at that time because she thought Jenn
would complete treatment and regain custody of her daughter. At a conference in May
an OCS social worker noted that Elise had asked for placement throughout the history
of the case, but the home study had found that Elise's house was "very unsafe" and she
still had not cleaned it up six months later.
In November 2010 the superior court denied a petition to terminate Jenn's
parental rights, finding OCS had not made active efforts to provide remedial services and
rehabilitative programs.8 The court again found good cause to continue to deviate from
ICWA placement preferences for Dawn's foster care because "any preferred placements
8 See id. 1912(d).
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would be well outside the Anchorage area and would make visitation much more
difficult."
At a status hearing in February 2011 Elise asked if Dawn would be returned
to her mother. The superior court explained that it was not safe for Dawn to return to her
mother's custody, given Jenn's continuing mental health and drug use issues. Despite
Jenn's lack of progress, neither Elise nor the Tribe challenged Dawn's continued
placement in Anchorage at that time.
C. Post-Termination Challenges To Placement
In April 2011 OCS filed another petition to terminate Jenn's parental rights,
and in September 2011 the superior court terminated her parental rights and freed Dawn
for adoption. At that point the Tribe argued there no longer was good cause to deviate
from ICWA placement preferences. The court stated it was troubled by the fact that it
was unclear whether OCS had pursued any of the Tribe's proposed placements for
Dawn, and that an OCS social worker had testified she had not spoken with the Tribe's
ICWA representative since being assigned to Dawn's case. The court deferred
determining whether there was good cause to deviate from ICWA placement preferences
and ordered OCS to submit a report on the availability of ICWA placements.
On October 19, 2011, OCS submitted a report to the superior court listing
the Tribe's proposed placements and the reasons why those placements were not viable
options. According to the report, most of the individuals had criminal or child protective
histories, OCS was unable to locate contact information for some individuals, and others
never responded to OCS's inquiries. As to Elise, the report stated: "[Elise F.] completed
a homestudy and did not pass the homestudy or complete[] the issues that came out of
the homestudy . . . ."
On October 21 the Tribe formally objected to Dawn's placement in
Anchorage with an oral objection at a status conference. On November 7 the Tribe filed
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a motion to show cause against OCS, alleging the placement report falsely stated that an
OCS social worker had conducted a home study for Elise and that OCS had failed to
correct the report even though OCS was aware that it contained inaccurate information.
OCS responded, explaining that a Village Council Presidents' representative had
conducted a foster home study on OCS's behalf, and notes from a subsequent meeting
incorrectly stated that an OCS social worker had completed the home study. OCS
explained that a foster home study includes an evaluation of the physical condition of the
home, background checks, and a brief reference, whereas a home study for adoptive
purposes is much more thorough.
On November 3, in the midst of this dispute, the Smiths filed a petition to
adopt Dawn. Their petition was stayed pending the resolution of the ICWA placement
hearing. The superior court held a placement hearing on November 14.
D. Placement Hearing
1. Opening statement of Kathleen Wilson, the guardian ad litem
Kathleen Wilson, the guardian ad litem, stated that she believed it would
be in Dawn's best interest to remain with the Smiths because Dawn was three-and-a-half
years old at that point and needed permanency. Wilson noted that placement with Elise
would be a long process, because: (1) OCS would have to complete a full home study,
which could take up to 50 days; (2) OCS would have to work with Elise to gradually
establish a bond with Dawn before the child could be moved to her grandmother's home;
and (3) Dawn would then have to live with Elise for six months before Elise could
formally adopt her. Wilson believed that there was good cause to deviate from ICWA
placement preferences, given Dawn's need for permanency, her existing bond with the
Smiths, the lack of a bond with Elise, and the length of time it would take for her to
achieve permanency if placed with Elise. However, Wilson did not identify any
particular reason why Elise would not be a suitable placement for Dawn; her
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recommendation was based primarily on Dawn's need for permanency and the fact that
Dawn was happy and stable with the Smiths.
2. Testimony of Molly Hayes, expert in child development
Molly Hayes, a school counselor with degrees in school counseling and
early childhood special education, testified as an expert in child development. She
worked with Dawn when Dawn was approximately one year old. Hayes testified that
before Dawn moved in with the Smiths, she was easily upset and required more attention
and consistency in her routine than other children her age. Dawn had since bonded with
the Smiths and the behavioral issues that she exhibited in her previous foster home had
diminished. Hayes expressed concern about attempting to transition Dawn away from
the Smiths, especially since Dawn viewed the Smiths as her mother and father. But
Hayes also testified that she did not know anything about Elise or her home and could
not say with certainty that moving Dawn would create an immediate risk to her
well-being. Hayes also explained that "split feather syndrome" is a condition that can
affect Native children who grow up in a white society and feel they do not belong to
either culture, and that this condition can lead to substance abuse and suicide in young
adulthood.
3. Testimony of Sarah Wood, OCS supervisor
Sarah Wood, an OCS supervisor, testified that she talked to Elise about
Dawn's placement in February 2010, and Elise told her that she had not completed the
recommendations for making her home safe but planned to address those concerns.
Wood explained that an OCS social worker had not visited Elise's home because OCS
has a difficult time maintaining staffing in its rural offices and sometimes has to partner
with tribal ICWA workers to perform home visits, which is what happened in this case.
Wood testified that if the foster home report had concluded that Elise's home was ready
for placement, then OCS would have performed a background check on every adult in
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the home and would have placed Dawn with Elise if the background checks were clear.
Wood explained that if Dawn had been placed with Elise for foster care, a more
extensive home study would have been completed prior to adoption.
4. Testimony of Talia Robinson, OCS case worker
Talia Robinson, Dawn's OCS case worker, explained that it typically takes
18 months to two years for a child to achieve permanency, but Dawn had been in OCS
custody for over three years. Robinson believed it was in Dawn's best interests to be
adopted by the Smiths because she had stability there and it was the only home she had
ever known.
Robinson also testified about Dawn's placement history. According to
Robinson, moving Dawn away from Anchorage before Jenn's parental rights were
terminated would have harmed reunification efforts. Dawn was not initially placed with
Elise because of her son's criminal history. OCS arranged for a home visit in August
2009 when Elise reported that her son had moved out, but in May 2010 Elise told
Robinson that she did not want placement because she wanted Jenn to be reunited with
Dawn. Robinson expressed concern that Elise had known about the home visit safety
recommendations for a long time, but as recently as November 2, 2011, Elise told
Robinson that her home was still not ready for Dawn. Robinson explained that OCS
does not send workers to help a potential foster parent make her home physically safe
because it is important for the person to show that she is truly interested in placement and
demonstrate that she is able to provide for the child's safety on her own.
Robinson further testified that driving under the influence is a barrier-crime
for only five years; therefore, Elise's son's 2005 conviction was no longer a barrier to
placement as of the November 2011 placement hearing. Robinson also testified that
Elise, her husband, and her son did not have any other criminal or child protective
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history that OCS was aware of, and that Dawn did not have any special needs that could
not be met by Elise in the village.
5. Testimony of Cheryl Offt, ICWA director for the AVCP
Cheryl Offt, the ICWA department director for the Village Council
Presidents, spoke on behalf of the Tribe. Offt testified that the Tribe had consistently
asked OCS to place Dawn with her relatives, specifically with Elise. She explained that
the Tribe did not formally object to placement before the termination of Jenn's parental
rights because "we always believe in reunification first when it looks possible." Offt
testified that too often a tribe will agree to allow a child to stay with non-Native foster
parents in one of the urban hubs of Alaska, even though there are ICWA-preferred
placements available in a village, in order to facilitate contact with the parents. But, she
testified, when the case moves towards termination, OCS claims the child has been with
the foster parents for too long and cannot be moved.
Although Offt had never met Dawn, she believed it was important for
Yup'ik children to be placed in their culture because:
Yup'ik elders say that you are . . . not born Yup'ik, you are
raised to become Yup'ik and . . . to become Yup'ik, you have
to be raised within the context of the Yup'ik culture, . . . you
cannot become Yup'ik by taking a class in Yup'ik language.
You cannot become Yup'ik by going to dance class. You
cannot become Yup'ik by going to the museum. Being
Yup'ik, being raised to become Yup'ik, is a lifelong process
that involves things that are much deeper, activities, sayings,
being given a Yup'ik name and knowing who gave it to you
and what it means, knowing who you are related to, not just
biologically but through that Yup'ik name. . . . [I]t's a way of
being in this world, being with other people, being within
your environment.
Offt said that if Dawn were raised by a non-Yup'ik family, she would grow up to be a
person who had Yup'ik heritage but did not know what it really meant to be Yup'ik.
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Offt believed this could be problematic once Dawn reached adolescence. Offt testified
that the Tribe believed it would be in Dawn's best interest to be placed in her
grandmother's home, where she would be raised by family within her Yup'ik culture.
Offt did not think that maintaining contact with relatives while being raised by the
Smiths would be sufficient to keep Dawn connected to her culture. Offt also stated that
"there are no overwhelming reasons for [Dawn] not to be in Tununak with family,"
because the potential hazards identified by the home visit report were "fixable hazards"
and "normal things that are in every home in every village out there," and the Tribe was
willing to work with OCS to ease Dawn's transition to the village.
6. Testimony of Elise F., maternal grandmother
Elise testified that at 67 years old, she was perfectly healthy and capable of
caring for her granddaughter. She testified that she lived an active lifestyle by
participating in subsistence fishing, berry picking, carrying water, and doing household
chores. She had raised eight children herself and helped care for five other grandchildren
living in the village. Her husband was 70 and had recently been treated for lung cancer,
but the cancer was in remission. Elise testified that there was nothing unusual about
grandparents raising a grandchild in the village - her 72-year-old neighbor was still
healthy and taking care of a granddaughter. Elise also testified that if she were
eventually unable to care for Dawn, one of her daughters who lived in the village and
worked as a health aide at the clinic had agreed to take care of her.9
9 There was some dispute about this daughter's history. Robinson testified
that Elise's daughter had been convicted of assault, a barrier-crime. Elise testified that
her daughter and a niece both had the same name - her niece lived in Bethel and had
been charged with assault, while her daughter lived in the village and did not have a
criminal history. The superior court found Elise's testimony credible on this point.
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Regarding placement, Elise testified that she had previously worked as an
ICWA worker, she knew that Native children were supposed to be placed with Native
families, and she had wanted Dawn to be placed with her from the beginning. When
asked if she wanted to take care of Dawn just because the Tribe was asking her to do so,
Elise replied, "Yes and no." Elise testified: "[I]t is my right to adopt or take my
granddaughter and . . . raise her as an Alaska Native . . . because she is part of my flesh
and blood and so that she could learn her values in Native culture and traditions and
where she came from."
Elise understood that her son's criminal history and the potential hazards
in her home were obstacles to placement and explained that she did not immediately
address those issues because she hoped Dawn would be reunited with Jenn. Elise
acknowledged that as recently as November 2, 2011, she had told an OCS social worker
that her house was not ready for Dawn. But she testified that she had obtained a place
to store fuel outside of the house, had stored guns in the attic where children could not
reach them, was in the process of clearing out Dawn's potential room, and planned to get
a padlock to secure the medicine and cleaning supplies under the bathroom sink. Elise
also explained that she often bought extra supplies and food when she was in Anchorage
because supplies were so expensive in the village, and the boxes were stacked around the
house because they did not have extra cabinet space. She said, "[Y]ou could call it a
clutter but that's our food." Elise also testified that her son lived in her home again and
helped out with chores, such as carrying water, shopping, cooking, and subsistence
hunting. According to Elise, her son could not afford to return to Anchorage to complete
the required alcohol treatment program, but he did not drink anymore and alcohol was
not available in the village.
Elise also testified about her relationship with Dawn. She said that she was
not able to see Dawn very often because it was so expensive to travel from Tununak to
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Anchorage. She explained that she did not call or write letters to Dawn because the child
was too young to read or communicate, and she had hoped that the Smiths and OCS
would contact her to keep her informed about Dawn. She did not send photographs
because she did not have a camera, although she could have borrowed one from the local
school. Elise acknowledged that Dawn did not know her and that she would have to visit
Dawn in Anchorage so they could gradually get to know each other. And she understood
that she would have to gradually introduce Dawn to her lifestyle in the village so the
child did not experience culture shock. When asked if she thought that it was really in
Dawn's best interests to be moved from the Smiths at this point, Elise acknowledged,
"That's a difficult question to ask."
7. Testimony of Kim and Harry Smith, foster parents
Kim Smith testified that Dawn had been placed in the Smith home for over
two years at the time of the trial, and called Kim and Harry mommy and daddy. She
testified that Dawn did not speak very much when she was first placed in their home, but
was attending speech therapy and had developed a large vocabulary. Kim testified that
Dawn was calm and happy when she had stability and a routine, but still would throw
tantrums when her routine was disrupted. She testified that Dawn sometimes had bad
mornings and would refuse to get out of bed, but she was so tuned in to Dawn's needs
that she knew when to pick her up and hug her and when to step outside until Dawn
called for her.
Kim testified that she had attempted to expose Dawn to her Native heritage
by taking her to a play group for Native children, a Yup'ik dance group, the Native
Youth Olympics, the Native Heritage Center, and an Indian education program through
the Anchorage School District where Dawn participates in games, crafts, and Yup'ik
language instruction.
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Kim testified that she and Harry wanted Dawn to have a relationship with
her grandmother and were saving money so they could take Dawn to visit Tununak and
participate in some of the village activities. Kim stated they also would like Dawn to
have a relationship with her half-brother and half-sister and had tried to arrange visits for
the siblings whenever they were in Anchorage. And although Jenn had previously said
she would not have any contact with her daughter if the Smiths adopted her, Kim
testified that she hoped Jenn would want to have a relationship with Dawn in the future.
Kim believed it would be best for Dawn to remain with her and Harry to
"maintain the stability and the calmness that have helped her become this amazing little
girl." She also thought it would be in Dawn's best interests if her birth family would
help the Smiths teach Dawn about her culture and develop connections with her without
taking away the people she considers her mom and dad.
Harry Smith briefly testified that he and Kim loved Dawn and wanted to
adopt her. He also testified that the Smiths had many Native friends and their church
community is very diverse.
E. The Superior Court's Placement Order
At the conclusion of the placement hearing the superior court
acknowledged this was a very difficult case. In December 2011 the superior court issued
a written order concluding there was good cause under 25 U.S.C. 1915(a) to deviate
from the ICWA adoptive placement preferences. Accordingly, the court denied the
Tribe's objections to adoptive placement and cleared the way for the Smiths to adopt
Dawn.
In discussing the facts, the court observed that Elise was 67 years old and
would be 82 when Dawn turns 18, and that her husband was 70 years old. The court
found Elise's testimony that she wanted to adopt Dawn "less than convincing," because
Elise had testified she wanted to adopt Dawn because the Tribe wanted her to, had
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maintained almost no contact with Dawn, and knew almost nothing about Dawn's life.
The court also found OCS caseworker Robinson's testimony credible that in May 2010
Elise told Robinson she did not want placement because she hoped Jenn would regain
custody of Dawn. And the court found that Elise had remedied some but not all of the
safety issues identified by the foster home visit.
The court found that the Smiths had been "exceptional foster parents" and
were "the only family that [Dawn] has ever known." The court found that in the Smith
home, Dawn had "developed from a non-speaking, emotionally upset child into a
relatively well adjusted and loving member of their family," because the Smiths had
"provided [Dawn] with the consistency and routine that she needs." The court noted that
the Smiths had attempted to keep Dawn in touch with her Native heritage, but agreed
with Offt's testimony that "these contacts are not the same thing as living with a Yup'ik
family in a Yup'ik village."
The court stated that OCS's expert witness Hayes had testified it would be
"extremely traumatic" for Dawn to undergo another change in placement, particularly
to an unfamiliar village setting. The court found that adoptive placement with Elise
would require a full home study and lengthy transition period, and stated the guardian
ad litem had testified that this lack of permanency would be "extremely detrimental to
[Dawn's] development."
In determining whether, based on these facts, there was good cause to
deviate from ICWA placement preferences, the superior court first ruled that OCS had
the burden to prove good cause by a preponderance of the evidence in accordance with
Alaska Adoption Rule 11(f), rejecting the Tribe's argument that OCS must prove good
cause by clear and convincing evidence under AS 47.14.100(e). The court then
considered the best interests of the child and the factors listed in the ICWA interpretive
guidelines issued by the Bureau of Indian Affairs (BIA).
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The court acknowledged the "very real concerns about how [Dawn] will
adjust emotionally to growing up with a white family" and recognized that Dawn would
"face the risks and stresses associated with negotiating two cultural identi[t]ies." But the
court stated it was faced with the choice of exposing Dawn to "possible psychiatric
damage in the future" and causing "certain psychiatric damage now," (emphasis in
original) based on the evidence that Dawn had already been relocated several times, had
benefitted from remaining with the Smiths for an extended period of time, and needed
permanence in order to maintain her emotional health.
The court also ruled that it had "no doubt" that continued placement with
the Smiths was in Dawn's best interests. The court reasoned that "[a] placement change
at this point would be very traumatic particularly given the child's reactive attachment
disorder symptoms." The court also reasoned that the Smiths were the only family Dawn
knew and had provided "extraordinary" care and stability, whereas Elise was a stranger
to Dawn.
The court further ruled that Elise was not a suitable placement for Dawn.
The court focused on Elise's age, finding it "highly unlikely that Elise and [her husband]
will both be alive for the minority of the child." Although Elise had testified she was in
good health, the court stated it "does not believe that a 67 year old woman and a 70 year
old suffering from cancer can keep up with and provide appropriate care for a three year
old child." The court also found Elise's backup plan of having her daughter care for
Dawn lacked credibility because the daughter did not testify, so the court had no
assurances that the alternate plan was viable.
For these reasons, the superior court concluded that Dawn's best interests
"dictate continued adoptive placement . . . with the Smiths" and, therefore, there was
good cause to deviate from the ICWA adoptive placement preferences.
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F. Adoption
The Tribe moved to stay the Smiths' adoption proceeding pending the
Tribe's appeal of the superior court's placement ruling to this court. The superior court
denied the Tribe's motion. On March 6, 2012, the court held an adoption hearing and
granted the Smiths' adoption petition.10 Dawn is now four years old and has lived with
the Smiths for over three years.
III. STANDARD OF REVIEW
We review the superior court's finding of good cause to deviate from
ICWA adoptive placement preferences for an abuse of discretion.11 "It would be an
abuse of discretion for a superior court to consider improper factors or improperly weigh
certain factors in making its determination."12 We review the factual findings supporting
the superior court's good cause determination for clear error.13 A finding is clearly
erroneous when we are "left with a definite and firm conviction that the trial court has
made a mistake."14 Determining whether the superior court's findings comply with
10 The Tribe also appealed the grant of the Smiths' adoption petition. On
November 29, 2012, we issued an order sua sponte staying the adoption appeal pending
the resolution of this appeal. Alaska Supreme Court Order in No. S-14670
(Nov. 29, 2012).
11 In re Adoption of Sara J. , 123 P.3d 1017, 1021 (Alaska 2005).
12 Id .
13 Adoption of N.P.S. , 868 P.2d 934, 936 (Alaska 1994).
14 In re Adoption of Sara J. , 123 P.3d at 1021 (quoting Hamilton v. Hamilton ,
42 P.3d 1107, 1111 (Alaska 2002)) (quotation marks omitted).
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ICWA requirements is a question of law that we review de novo.15 Matters of statutory
interpretation are also questions of law to which we apply our independent judgment.16
IV. DISCUSSION
A. Overview Of The Indian Child Welfare Act
An overview of ICWA provides context for today's decision. Congress
enacted ICWA after almost a decade-long investigation into the treatment of Indian
children in child custody proceedings. Senate hearings in 1974 and 1977 chronicled
"[t]he wholesale removal of Indian children from their homes" by state and private
welfare agencies and the placement of those children in non-Indian foster and adoptive
homes.17 Congress heard testimony describing this disproportionate removal as "the
most tragic aspect of Indian life today."18 Studies presented at the Senate hearings
revealed that 25 to 35 percent of all Indian children had been separated from their
families and placed in adoptive families, foster care, or institutions.19 The studies also
showed that only one percent of the Indian children removed from Indian families were
removed on the grounds of "physical abuse," while the "remaining 99 percent of the
15 Id .
16 State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 858
(Alaska 2003).
17 Indian Child Welfare Act: Hearings on S. 1214 Before the Senate Select
Comm. on Indian Affairs, 95th Cong., 1st Sess. (1977) [hereinafter 1977 Hearings];
Indian Child Welfare Program: Hearings Before the Subcomm. on Indian Affairs of the
Senate Comm. on Interior and Insular Affairs, 93d Cong., 2d Sess. (1974) (statement of
William Byler) [hereinafter 1974 hearings].
18 1974 Hearings, supra note 17, at 3 (statement of William Byler).
19 1974 Hearings, supra note 17, at 15; see also H.R.Rep. No. 95-1386, at 9
(1978) [hereinafter House Report], reprinted in 1978 U.S.C.C.A.N. 7530, 7531.
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cases were argued on such vague grounds as 'neglect' or 'social deprivation' and on
allegations of the emotional damage the children were subjected to by living with their
parents."20
Prior to the passage of ICWA, state courts "had been recognized as
possessing broad, seemingly exclusive, jurisdiction over domestic relations and custody
of their children - at least outside of Indian country."21 But in passing ICWA, Congress
recognized its own "responsibility for the protection and preservation of Indian tribes
and their resources."22 Congress further found:
(3) 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;
(4) 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
(5) 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
20 House Report , supra note 19, at 10, reprinted in 1978 U.S.C.C.A.N. at
7532.
21 Roger A. Tellinghuisen, The Indian Child Welfare Act of 1978: A Practical
Guide with (Limited) Commentary, 34 S.D. L. REV . 660, 660 (1989).
22 25 U.S.C. 1901(2) (2006).
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social standards prevailing in Indian communities and
families.[23]
Accordingly, in ICWA Congress declared that "it is the policy of this Nation to protect
the best interests of Indian children and to promote the stability and security of Indian
tribes and families."24 Congress attempted to achieve this policy "by the establishment
of minimum Federal standards for the removal of Indian children from their families and
the placement of such children in foster or adoptive homes."25 These federal standards
must be applied by state courts and are intended to "reflect the unique values of Indian
culture."26
The adoptive placement preferences in 25 U.S.C. 1915(a) are examples
of these "minimum Federal standards."27 Section 1915(a), described by the United States
Supreme Court as "[t]he most important substantive requirement [of ICWA Title 1]
imposed on state courts,"28 "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."29 The placement preferences,
like ICWA's other procedural and substantive requirements, "seek[] to protect the rights
of the Indian child as an Indian and the rights of the Indian community and tribe in
23 Id. 1901(3)-(5).
24 Id. 1902.
25 Id.
26 Id.
27 Id.
28 Mississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 36 (1989).
29 House Report , supra note 19, at 23, reprinted in 1978 U.S.C.C.A.N. 7530,
7546.
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retaining its children in its society."30 They also help insure "that Indian child welfare
determinations are not based on 'a white, middle-class standard which, in many cases,
forecloses placement with [an] Indian family.' "31
The Tribe argues on appeal that AS 47.14.100(e) requires superior courts
to find good cause to deviate from ICWA placement preferences by clear and convincing
evidence. OCS argues, and the superior court agreed, that the lower preponderance of
the evidence standard under Adoption Rule 11(f) applies. Native Village of Kotzebue
(Kotzebue), participating as an amicus curiae, argues that ICWA 1915 mandates the
clear and convincing standard for departing from ICWA's placement preferences in
adoption cases, and that we should overrule our precedent holding otherwise.
The Tribe also challenges the superior court's good cause determination,
arguing that ICWA presumes it is in a Native child's best interests to be placed with a
Native relative, and that the superior court's factual findings in this case are not
supported by sufficient evidence and are insufficient to overcome this presumption.
B. Standard Of Proof
1. Adoptive placements under Adoption Rule 11(f) and
25 U.S.C. 1915(a) versus foster care and preadoptive
placements under AS 47.14.100(e) and 25 U.S.C. 1915(b)
ICWA establishes standards of proof for some determinations, but it does
not specify a standard of proof for establishing good cause to deviate from adoptive or
30 Holyfield , 490 U.S. at 37 (quoting House Report , supra note 19, at 23,
reprinted in 1978 U.S.C.C.A.N. at 7546)).
31 Id. (quoting House Report , supra note 19, at 24, reprinted in 1978
U.S.C.C.A.N. at 7546).
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foster placement preferences.32 For example, when a child is removed from her parents,
ICWA requires a showing of "clear and convincing evidence" that the parents' continued
custody would likely cause serious emotional or physical harm to the child.33 And when
terminating parental rights, ICWA requires a similar showing but raises the burden of
proof to "beyond a reasonable doubt."34
In Alaska, a state statute and a court rule establish different standards of
proof for good cause determinations, depending on whether the placement is for foster
care or adoption. Alaska Statute 47.14.100 describes the powers and duties that the
Department of Health and Social Services (the Department) has over all children
committed to its custody.35 Subsection (a) provides that "the department shall arrange
for the care of every child committed to its custody by placing the child in a foster home
or in the care of an agency or institution . . . ."36 Subsection (e) provides: "When a child
is removed from a parent's home, the department shall place the child, in the absence of
clear and convincing evidence of good cause to the contrary, . . . with, in the following
order of preference, (A) an adult family member . . . ."37 This statutory provision applies
generally, not just to the placement of Native children.
32 See 25 U.S.C. 1915(a)-(b) (2006).
33 Id . 1912(e).
34 Id . 1912(f).
35 See AS 47.14.990(6) (defining "department" as the Department of Health
and Social Services).
36 AS 47.14.100(a).
37 AS 47.14.100(e)(3) (emphasis added). The statute also specifies other
placement preferences that are not at issue here. Id .
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Adoption Rule 11, a rule promulgated by the Alaska Supreme Court,
applies to adoption proceedings under title 25, chapter 23 of the Alaska Statutes.38
Subsection (f) specifically addresses good cause for deviating from ICWA placement
preferences: "In an adoption involving an Indian child, the burden of proof is . . . on the
petitioner to show by a preponderance of the evidence that the placement is within the
placement preferences or that there is good cause for allowing a non-preferred placement
pursuant to 25 U.S.C. Section 1915."39
a. Adoption Rule 11 applies to this adoptive placement
determination.
The Tribe argues, as it did before the superior court, that this case involves
a foster care or preadoptive placement under ICWA 1915(b) rather than an adoptive
placement under ICWA 1915(a); thus, according to the Tribe, the good cause
determination is governed by the clear and convincing standard under AS 47.14.100(e),
and not by the preponderance of the evidence standard under Adoption Rule 11(f). The
superior court rejected this argument and found that Adoption Rule 11(f) applies to this
case.
We have previously recognized that Adoption Rule 11(f) provides the
proper standard of proof for establishing good cause to deviate from ICWA's adoptive
placement preferences.40 But the Tribe points out that all of these prior cases were
38 Alaska Adpt. R. 1(b) ("Scope. These rules govern practice and procedure
in the trial courts in all phases of adoption proceedings brought under AS 25.23.010
through 25.23.240.").
39 Alaska Adpt. R. 11(f) (emphasis added).
40 In re Adoption of Sara J ., 123 P.3d 1017, 1025 (Alaska 2005) (citing
Adoption Rule 11(f)) ("[U]nder Alaska law, the burden of showing good cause is on the
party proposing placement outside the statutory preferences."); Adoption of N.P.S. , 868
(continued...)
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adoption proceedings, and argues that Adoption Rule 11(f) does not apply here because
"the present case is not an adoption case." OCS argues that the placement determination
in this CINA case "ripened into an adoptive placement [under ICWA 1915(a)]
governed by Adoption Rule 11(f)" once the superior court terminated parental rights and
the Smiths filed an adoption petition. OCS relies on C.L. v. P.C.S. as a factually similar
case in which a foster care placement ripened into an adoptive placement after the
superior court terminated parental rights and the foster parents filed adoption petitions.41
According to the Adoption Rules themselves, the rules apply to "all phases
of adoption proceedings brought under AS 25.23.010 through 25.23.240."42 In C.L., the
superior court conducted separate adoption proceedings for two siblings after terminating
parental rights and issued final adoption decrees.43 In contrast, the placement hearing
here was not an adoption hearing under title 25, chapter 23 of the Alaska Statutes;
40(...continued)
P.2d 934, 936 (Alaska 1994) (citing In re Adoption of F.H. , 851 P.2d 1361, 1363 (Alaska
1993)) ("A party asking a court to deviate from ICWA's preferences for placement bears
the burden of proving, by a preponderance of the evidence, good cause."); In re Adoption
of F.H., 851 P.2d at 1363 (citing Adoption Rule 11(f)) ("The question on appeal is
whether the superior court erred in concluding that good cause existed to deviate from
the adoptive placement preferences mandate under ICWA . . . . Under state law, the
Hartleys have the burden of proof by a preponderance of the evidence that there is good
cause for allowing a non-preferred placement.").
41 17 P.3d 769, 772 (Alaska 2001); see also In re Adoption of Bernard A., 77
P.3d 4, 8 (Alaska 2003) ("[A]n initial foster care placement of a very young child in need
of aid may ripen into an adoptive placement precisely because of the need for continuity
of care. For this reason, we encourage trial courts to expedite and dispose of adoption
contests as soon as possible.") (internal citations omitted).
42 Alaska Adpt. R. 1(b).
43 17 P.3d at 772.
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although the Smiths filed an adoption petition, the superior court expressly declined to
consolidate that adoption proceeding with this CINA case.
But even though the placement determination took place in the context of
a CINA proceeding, it is clear that the parties were essentially contesting - and the
superior court was essentially determining - adoptive placement for Dawn. When the
court declined to consolidate the two cases, it stated that the future adoption proceeding
would be dependent on the placement ruling in the CINA case:
[T]he Tribe doesn't get two bites at the apple . . . . If the
Tribe wins here on this issue, obviously, there's not going to
be an adoption and there's . . . going to be a new placement
so the adoption will go away. If the Tribe loses, it doesn't get
to contest placement in the adoption proceeding because
they're basically the same two standards and collateral
estoppel would apply and then the adoption would go
forward . . . .
The parties' testimony at the placement hearing focused on Dawn's need for permanency
and Elise's suitability as an adoptive placement. And the superior court stated in its
placement order that it was denying the Tribe's objections to adoptive placement and
clearing the way for the Smiths to adopt Dawn.
The superior court correctly relied on the Adoption Rules for the applicable
standard of proof; the parties were contesting adoptive placement even though the
challenge arose in the context of a CINA proceeding. As such, this case is an adoptive
placement governed by Adoption Rule 11(f) and 25 U.S.C. 1915(a) rather than a foster
care or preadoptive placement governed by 1915(b).
b. Alaska Statute 47.14.100(e) does not apply to adoptive
placement determinations.
In addition to arguing that Adoption Rule 11(f) does not apply in this case,
the Tribe also argues that AS 47.14.100(e) "applies to all OCS placement decisions,
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including placements for adoptive purposes." Again, AS 47.14.100(e) requires
placement with a family member unless there is clear and convincing evidence to deviate
from this placement preference.44 We have previously stated that AS 47.14.100(e)
applies only to foster care determinations, not adoptive determinations.45 But that
conclusion was based on a provision in AS 47.14.100(f) that stated "[n]othing in this
subsection or in (e) of this section applies to child placement for adoptive purposes."46
The legislature removed this restriction in 2005.47 The Tribe argues that the plain
language of the statute and the legislative history of the 2005 amendment show that the
legislature intended for AS 47.14.100(e) to apply to all placements, including adoptive
placements.
When interpreting statutes, we consider "the meaning of the statute's
language, its legislative history, and its purpose."48 The Tribe first argues that the plain
language of AS 47.14.100(e) does not limit the clear and convincing standard to foster
care placements, but "describes the proper analysis for all cases where a child has been
removed from her home, not just at the instant she is initially removed from that home,
and not just in cases where the parents still retain their parental rights." Although the
Tribe is correct that subsection (e) does not expressly limit its application to foster care
44 The placement preferences under AS 47.14.100 are very similar to ICWA's
foster care and preadoptive placement preferences. Compare AS 47.14.100(e)(3), with
25 U.S.C. 1915(b) (2006).
45 In re Adoption of L.E.K.M. , 70 P.3d 1097, 1101 (Alaska 2003).
46 See Ch. 59, 47, SLA 1996.
47 Ch. 64, 35, SLA 2005.
48 Nelson v. Municipality of Anchorage , 267 P.3d 636, 639 (Alaska 2011)
(citing Grimm v. Wagoner, 7 P.3d 423, 427 (Alaska 2003)).
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placements, the context of the statute and the broader statutory scheme strongly suggest
that AS 47.14.100(e) specifically applies to foster care placement.
The statute states: "Subject to (e) . . . of this section, the department shall
arrange for the care of every child committed to its custody by placing the child in a
foster home . . . ."49 Subsection (e) then provides that "[w]hen a child is removed from
a parent's home," the department must follow certain placement preferences.50 When
read together, these provisions indicate that the statute governs placement preferences
when a child is removed from a parent's home and placed in a foster home.
Additionally, adoptive placement preferences are specifically addressed in other
statutes,51 further indicating that AS 47.14.100(e) does not apply to adoptive placements.
The Tribe mainly relies on legislative history to argue that the
2005 legislature intended to expand AS 47.14.100(e) to apply to adoptive placement by
removing the restriction in AS 47.14.100(f) against applying subsection (e) to adoptive
placements. Kotzebue supports this argument. The Tribe and Kotzebue rely on remarks
made by a legislative aide and a representative from the Department of Law, but they
misconstrue the comments that these individuals made to the legislature.
49 AS 47.14.100(a).
50 AS 47.14.100(e).
51 See AS 47.10.088(i) ("Before identifying a placement of the child in an
adoptive home, the department shall attempt to locate all living adult family members of
the child . . . . If an adult family member of the child requests that the department
approve the adult family member for an adoption, the department shall approve the
request unless there is good cause not to approve the adoption."); AS 25.23.127
("[U]nless the court finds that a petition to adopt the child by an adult family member is
contrary to the best interest of the child, the court shall grant a petition to adopt a child
by an adult family member who has had physical custody of the child for at least 12
consecutive months before the parental rights to the child have been terminated.").
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The Tribe and Kotzebue first cite the minutes for a hearing before the
Senate Health, Education, and Social Services Standing Committee. The minutes
summarize statements by Rynnevia Moss, a legislative aide to Representative John
Coghill, explaining
[A]nother aspect of the bill was to strengthen families by
seeing that extended family members and family friends are
to be first and foremost in the consideration of preference to
adopt children in need of aid[] (CINA). The bill gives an
affirmative responsibility in rejecting the placement of
children in the homes of their extended family, friends and a
licensed foster home respectively.[52]
The Tribe claims this statement shows that "the effect [of the amendment to
AS 47.14.100(f)] would be to ensure that extended family members would be considered
first and foremost for the adoption of children in need of aid." But an audio recording
of the hearing shows that Moss actually said the bill would "strengthen families" and
"make sure that it is family members or family friends who are looked at first for
placement of children that are taken into state custody ."53 She then stated the bill "also
has a provision in section three that says if parental rights are terminated and there is a
family member already raising that child , there should be a preference for adoption with
that family member."54 Section three of the proposed bill enacted AS 25.23.127, which
expressly established an adoptive preference for relatives who had physical custody of
52 Minutes, Sen. Health, Educ. & Soc. Servs. Standing Comm. Hearing on
H.B. 53, 24th Leg., 1st Sess., at 2:58:29 (May 2, 2005) (comments of Rynnevia Moss,
Legislative Aide to Representative John Coghill).
53 Comments of Rynnevia Moss, Legislative Aide to Representative John
Coghill at 02:58:40-02:58:52, Hearing on H.B. 53 Before the Sen. Health, Educ. & Soc.
Servs. Standing Comm., 24th Leg., 1st Sess. (May 2, 2005) (emphasis added).
54 Id . at 02:58.55-02:59:11 (emphasis added).
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the child for at least one year before the termination of parental rights.55 Moss was not
discussing the amendment to AS 47.14.100(f) when she referred to adoptive preferences.
The Tribe and Kotzebue also claim that Moss stated the bill ensured "OCS
could not approve an adoption by a non-relative if a relative requested adoption." And
they assert Dianne Olsen, a representative from the Department of Law, "echoed" Moss's
statements by explaining that "there previously had been a prohibition on making a
preference for blood relatives for adoption[,] although there was a preference for foster
care alone, and what this section does is provide for . . . adoption as well."56 But Moss
and Olsen were discussing proposed amendments to AS 47.10.088, which provided that
the Department could not approve an adoption by a non-family member if a relative
requested adoption unless the Department determined that adoption by the family
member was not in the child's best interests.57 Again, the comments that the Tribe and
55 Ch. 64, 3, SLA 2005 (codified at AS 25.23.127). The statute provides:
"[U]nless the court finds that a petition to adopt the child by an adult family member is
contrary to the best interest of the child, the court shall grant a petition to adopt a child
by an adult family member who has had physical custody of the child for at least 12
consecutive months before the parental rights to the child have been terminated."
56 Comments of Dianne Olsen, Chief Assistant, Attorney General's Office,
Dep't of Law at 04:14:45-04:15:35, Hearing on H.B. 53 Before the H. Health, Educ. &
Soc. Servs. Standing Comm., 24th Leg., 1st Sess. (March 15, 2005).
57 See Comments of Rynnevia Moss, Legislative Aide to Representative John
Coghill at 04:13:14- 04:13:26, Hearing on H.B. 53 Before the H. Health, Educ. & Soc.
Servs. Standing Comm., 24th Leg., 1st Sess. (March 15, 2005) (discussing Section 14
of the proposed bill); Comments of Dianne Olsen, Chief Assistant, Attorney General's
Office, Dep't of Law at 04:14:45-04:15:35, Hearing on H.B. 53 Before the H. Health,
Education & Soc. Servs. Standing Comm., 24th Leg., 1st Sess. (March 15, 2005)
(discussing Section 15 of the proposed bill); see also Proposed Committee Substitute for
Sponsor Substitute for House Bill (CSSSHB) 53, Version 24-LS0251\L, 14, 15
(March 14, 2005) (showing Section 14 of the proposed bill amended AS 47.10.088(i)
(continued...)
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Kotzebue rely on were not describing or referring to AS 47.14.100.
In fact, when Moss did discuss proposed amendments to AS 47.14.100(e)
she stated, "[W]hat we're trying to get to here is that a child cannot be placed in a foster
home if a family member or a friend has requested placement of the child."58 Her
comments do not support the Tribe's argument that the legislature intended to expand
the foster care placement preferences under subsection (e) by amending subsection (f).
Instead, the legislative history shows that the legislature addressed adoptive placement
preferences in other statutes, specifically AS 25.23.127 and AS 47.10.088.
2. ICWA mandates a clear and convincing standard of proof
for 1915(a) good cause determinations.
Kotzebue argues that ICWA 1915 mandates a clear and convincing
57(...continued)
and section 15 amended AS 47.10.088(l)).
58 Comments of Rynnevia Moss, Legislative Aide to Representative John
Coghill at 04:58:15-04:59:00, Hearing on H.B. 53 Before the H. Health, Education &
Soc. Servs. Standing Comm., 24th Leg., 1st Sess. (March 15, 2005) (discussing Section
33 of the proposed bill) (emphasis added); see also CSSSHB 53, Version 24-LS0251\L,
15 (March 14, 2005) (showing Section 33 of the proposed bill amended
AS 47.14.100(e)). When discussing the proposed amendment to AS 47.14.100(f), Moss
also stated the amendment:
provides that if a child is placed in a home other than the
home of a relative, the department must fully disclose to the
relative the nature of the placement. And I think there's some
language in there that provides that if the person has
difficulty understanding English then it would have to be
explained to them in their native language.
Comments of Rynnevia Moss, Legislative Aide to Representative John Coghill at
04:59:40-04:59:59, Hearing on H.B. 53 Before the H. Health, Education & Soc. Servs.
Standing Comm., 24th Leg., 1st Sess. (March 15, 2005) (discussing Section 34 of the
proposed bill); see also CSSSHB 53, Version 24-LS0251\L, 15 (March 14, 2005)
(showing Section 34 of the proposed bill amended AS 47.14.100(f)).
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standard for departing from ICWA's adoptive placement preferences. Kotzebue asserts
that "the legislative intent behind ICWA, public policy, and the heightened burdens of
proof required throughout other sections of the Act support a finding that the appropriate
standard to be applied in adoption proceedings is 'clear and convincing.' "
This is the first case to challenge directly the preponderance of the evidence
standard of proof as it applies to adoptive placements under Adoption Rule 11(f); our
prior decisions relied on Adoption Rule 11(f) without substantive analysis in determining
that the preponderance of the evidence standard applies to ICWA good cause
determinations.59 In In re Adoption of Sara J ., we cited Adoption Rule 11(f) in noting
that "[u]nder Alaska law, the burden of showing good cause is on the party proposing
placement outside the statutory preferences."60 We similarly cited Adoption Rule 11(f)
in In re Adoption of F.H. to hold that "[u]nder state law, the [moving parties] have the
burden of proof by a preponderance of the evidence that there is good cause for allowing
a non-preferred placement."61 And in Adoption of N.P.S. we relied on In re Adoption of
F.H. for the proposition that "[a] party asking a court to deviate from ICWA's
preferences for placement bears the burden of proving, by a preponderance of the
59 See Christine D. Bakeis, The Indian Child Welfare Act of 1978: Violating
Personal Rights for the Sake of the Tribe , 10 NOTRE DAME J.L. ETHICS & PUB . POL 'Y
543, 580 (1996) (describing In re Custody of S.E.G. , 507 N.W.2d 872, 878 (Minn. App.
1993) as "[t]he only case to squarely address" the proper standard of proof for good
cause determinations, and citing Adoption of N.P.S. , 868 P.2d 934, 936 (Alaska 1994)
for the proposition that "other jurisdictions have, without discussing their reasons for so
doing, applied the preponderance of the evidence standard to a 'good cause' finding").
60 123 P.3d 1017, 1025 (Alaska 2005).
61 851 P.2d 1361, 1363 (Alaska 1993).
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evidence, good cause."62
Regardless of the relative absence of in-depth analysis in our prior
decisions addressing the appropriate standard of proof, these decisions clearly
established that the preponderance of the evidence standard, as embodied in Adoption
Rule 11(f), applies to good cause determinations under 1915(a). We must therefore
determine whether the adoption of a heightened standard of proof - which would
necessarily overrule precedent - is justified under our well-established jurisprudence
regarding the doctrine of stare decisis.63 "In recognizing the importance of this doctrine,
we have consistently held that a party raising a claim controlled by an existing decision
bears a heavy threshold burden of showing compelling reasons for reconsidering the
prior ruling."64 We will overrule a prior decision only if clearly convinced that (1) a
decision was originally erroneous or is no longer sound because of changed conditions;
and (2) more good than harm would result from overruling it.65
Where Congress does not indicate the proper standard of proof, our task "is
one of discerning congressional intent."66 Ordinarily, legislative "silence is inconsistent
62 868 P.2d at 936 (citing In re Adoption of F.H. , 851 P.2d 1361, 1363
(Alaska 1993)).
63 See, e.g., Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943
(Alaska 2004).
64 Id.
65 Kinegak v. State, Dep't of Corr. , 129 P.3d 887, 889 (Alaska 2006); see
State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996) ("Stare decisis is a practical,
flexible command that balances our community's competing interests in the stability of
legal norms and the need to adapt those norms to society's changing demands.")
(alterations omitted).
66 Steadman v. S. E. C., 450 U.S. 91, 106 n.10 (1981).
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with the view that Congress intended to require a special, heightened standard of
proof."67 But we do not believe that Congress, by its silence, intended to apply the
preponderance of the evidence standard to good cause determinations.68 In passing
ICWA, Congress declared "that it is the policy of this Nation to protect the best interests
of Indian children and to promote the stability and security of Indian tribes and families
. . . ."69 Given this purpose, we decline to infer the appropriate standard of proof on the
basis of Congress's silence alone without further examining Congress's intent.70
Upon closer review, we are convinced by the purposes and policies that
drove the enactment of ICWA that it implicitly mandates a clear and convincing standard
of proof for deviation from the adoptive placement preferences. With the passage of
67 Grogan v. Garner, 498 U.S. 279, 286 (1991).
68 In an unpublished decision, the Arizona Court of Appeals interpreted
Congress's silence to indicate that Congress did not intend the "clear and convincing
evidence" standard of proof to apply to good cause determinations: "Congress did not
expressly establish a heightened standard of proof with regard to deviation from the
placement preferences in 1915, and presumably would have done so if clear and
convincing evidence were required." Robert T. v. Ariz. Dep't of Econ. Sec. , No. 2 CA-
JV 2010-0074, 2010 WL 5422605, at *3 (Ariz. App. Dec. 21, 2010). The Arizona court
cited our decision in In re Adoption of F.H. for the proposition that the preponderance
of the evidence standard applies to good cause determinations. Id. (citing In re Adoption
of F.H., 851 P.2d at 1363). We again note that this is the first time we have considered
the appropriate standard of proof for good cause determinations in any detail, and that
our conclusion in In re Adoption of F.H. did not benefit from the depth of argument and
briefing that has occurred in this case.
69 25 U.S.C. 1902 (2006).
70 See In re Custody of S.E.G. , 507 N.W.2d 872, 878 (Minn. App. 1993),
rev'd on other grounds, 521 N.W.2d 357 (Minn. 1994) ("We believe it is unreasonable
to assume that Congress, by its silence, intended to apply the preponderance of the
evidence standard when determining whether 'good cause' exists to deviate from the
adoption placement preferences in the Act.").
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ICWA, Congress made clear its intent to eradicate the unwarranted removal of Indian
children from their communities.71 Congress expressly noted the role of state courts in
perpetuating this problem and sought to rein in state court discretion through the passage
of mandatory federal standards, amongst which is 1915(a).72 As the Tribe persuasively
argues, "the lower the standard of proof a court applies to the good cause analysis, the
wider this exception becomes, and the easier it is for child welfare agencies to
circumvent ICWA's goals by placing Native children in non-Native, non-relative
homes." Given the legislative history of ICWA and Congress's strong emphasis on
maintaining Indian families and tribes, we do not believe that the preponderance of the
evidence standard sufficiently ensures that courts will properly consider ICWA's policy
mandates in making 1915(a) good cause determinations.
The U.S. Supreme Court's decision in Mississippi Band of Choctaw Indians
v. Holyfield also compels our conclusion that ICWA 1915(a) requires a heightened
standard of proof.73 The Mississippi Supreme Court had relied on state law to interpret
the term "domicile" and hold that a tribal court did not have jurisdiction over the
adoption of two Indian children because the children were not domiciled on the tribe's
reservation.74 In Holyfield , the Supreme Court reversed, concluding that even though
ICWA did not define "domicile," the term must be interpreted according to Congress's
intent, not according to state law.75 The Court reasoned that the legislative history and
71 See 25 U.S.C. 1902.
72 See id. 1901, 1915.
73 See generally 490 U.S. 30 (1989).
74 Id. at 39-40.
75 Id . at 43, 47.
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purpose of ICWA indicated Congress did not intend to leave the definition of a "critical
term" to state courts, which Congress perceived as "partly responsible for the problem
it intended to correct."76 The Court also found it "beyond dispute that Congress intended
a uniform federal law of domicile for the ICWA" because Congress "could hardly have
intended the lack of nationwide uniformity that would result from state-law definitions
of domicile."77
Holyfield instructs us that like the definition of "domicile," the "good
cause" standard must be interpreted according to Congress's intent. While we are
mindful that Congress intended to leave the good cause determination to the states, we
recognize that this discretion is not without bounds. As our foregoing analysis of the
purposes and policies that drove the enactment of ICWA indicates, the clear and
convincing evidence standard is most consistent with Congress's intent to maintain
Indian families and tribes intact wherever possible by eradicating the unwarranted
removal of Indian children from their communities.
We also find Holyfield 's discussion of the need for nationwide uniformity
pertinent to today's decision. As the South Dakota Supreme Court has observed, we are
the only supreme court to apply the preponderance of the evidence burden of proof to
findings of good cause to deviate from the ICWA adoptive placement preferences.78 The
South Dakota court held: "The 'clear and convincing' standard appears to be the better-
76 Id. at 45.
77 Id . at 44-47.
78 In re D.W. , 795 N.W.2d 39, 43-44 (S.D. 2011) (citing Adoption of N.P.S. ,
868 P.2d 934, 936 (Alaska 1994)). As noted supra note 68, the Arizona Court of Appeals
also applied the preponderance of the evidence standard in an unpublished decision. See
Robert T. v. Ariz. Dep't of Econ. Sec. , No. 2 CA-JV 2010-0074, 2010 WL 5422605, at
*3 (Ariz. App. Dec. 21, 2010).
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reasoned approach. It is consistent with both the congressional intent in adopting ICWA
and this Court's precedent."79 The Minnesota and Oklahoma Courts of Appeals have
similarly held that the clear and convincing standard applies to good cause
determinations.80 Given Holyfield 's emphasis on the need for uniformity, we find it
persuasive that every other court to consider this matter in a published opinion has
adopted the clear and convincing standard.
A clear and convincing standard of proof for 1915(a) good cause
determinations is also more consistent with other provisions in ICWA demanding a
heightened standard of proof. Section 1921, for example, generally provides that state
and federal courts should use the highest applicable standard of protection to protect
parental rights in child custody proceedings.81 Section 1912(e) also provides that foster
care placements must be "supported by clear and convincing evidence . . . that the
continued custody of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child,"82 and 1912(f) requires that the
termination of parental rights be "supported by evidence beyond a reasonable
doubt . . . that continued custody of the child by the parent or Indian custodian is likely
79 In re D.W. , 795 N.W.2d at 44.
80 See In re Custody of S.E.G. , 507 N.W.2d 872, 878 (Minn. App. 1993); In
re Adoption of Baby Girl B., 67 P.3d 359, 373-74 (Okla. Civ. App. 2003) (determining
that clear and convincing standard of proof applies to section 1915(b) determinations).
81 25 U.S.C. 1921 (2006) provides: "In any case where State or Federal law
applicable to a child custody proceeding . . . provides a higher standard of protection to
the rights of the parent or Indian custodian of an Indian child than the rights provided
under this subchapter, the State or Federal court shall apply the State or Federal
standard."
82 Id. 1912(e).
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to result in serious emotional or physical damage to the child."83
Given Congress's intent, as evidenced by ICWA's legislative history,
ICWA's stated policy, the Supreme Court's interpretation of ICWA, and other ICWA
provisions,84 we conclude that our prior decisions holding that the preponderance of the
evidence standard applies to ICWA 1915(a) good cause determinations were originally
erroneous.
This does not end our analysis, however. Our stare decisis jurisprudence
also requires a finding that more good than harm will result from overruling our prior
holdings.85 Here, this determination has already been made by Congress. In passing
ICWA, Congress determined that federal standards were necessary to ensure that Indian
children remain within Indian communities where possible.86 Congress weighed the
balance and concluded that more good than harm would come from a framework that
allows deviation from this policy only where good cause exists. We now recognize that
83 Id. 1912(f).
84 The Bureau of Indian Affairs ICWA Guidelines state that custody
proceedings involving Indian children "shall follow strict procedures and meet stringent
requirements to justify any result in an individual case contrary to [ICWA placement]
preferences," and that any ambiguities in ICWA statutes "shall be resolved in favor of
a result that is most consistent with these preferences." Guidelines for State Courts;
Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, at 67,586 (Nov. 26, 1979).
Although these guidelines are not binding, they help inform our decision of whether
ICWA mandates a "clear and convincing evidence" standard in adoptive preferences.
See Adoption of Keith M.W., 79 P.3d 623, 626 (Alaska 2003) ("Although the [BIA]
guidelines are only persuasive and are neither exclusive nor binding, 'this court has
looked to them for guidance.' " (quoting In re Adoption of F.H. , 851 P.2d 1361, 1364
(Alaska 1993))).
85 Kinegak v. State, Dep't of Corr. , 129 P.3d 887, 889 (Alaska 2006).
86 See House Report, supra note 19, at 23, reprinted in 1978 U.S.C.C.A.N.
7530, 7546.
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a heightened standard of proof is required to ensure that the good cause determination
is made in accordance with this policy. Therefore, we conclude that more good than
harm will result from overruling our prior holdings.
We recognize that today's decision may have negative implications. This
case must be remanded for further proceedings, which will cause further delay to Dawn's
permanency. Notwithstanding the seriousness of this concern, we are bound by the
Supremacy Clause to follow congressional mandates.87 We therefore hold that the
portion of Adoption Rule 11(f) requiring the petitioner to show good cause "by a
preponderance of the evidence" cannot stand in the face of ICWA.88
3. Application of the standard of proof
Because the superior court applied the preponderance of the evidence
standard to this case rather than the clear and convincing standard, a remand is necessary
so the superior court can determine whether there is good cause to deviate from the
adoptive placement preferences under the heightened clear and convincing standard of
proof. On remand, the superior court shall reopen the proceedings for new evidence
since both the court and the parties were operating under the then-accurate belief that the
preponderance of the evidence standard applied. On remand, OCS must prove by clear
and convincing evidence that there is good cause to deviate from ICWA 1915(a)'s
adoptive placement preferences.
87 U.S. CONST . art. VI.
88 We note that none of the parties in this case have alleged that the superior
court was biased or otherwise discriminated against Alaska Natives in its ruling, and we
perceive only that the court was faithfully following our precedent, as it was required to
do.
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C. ICWA's Statutory Placement Preferences And The Good Cause
Determination
In addition to challenging the standard of proof that the superior court
applied to its good cause determination, the Tribe challenges the substance of the court's
rulings. The Tribe argues that the superior court erroneously concluded that there were
no suitable statutory preferred placements and that there was good cause to deviate from
the placement preferences. OCS responds that the superior court's findings are
supported by sufficient evidence in the record and the court's ultimate ruling was not an
abuse of discretion. Because we are remanding for further proceedings, we do not
determine whether all of the superior court's findings were supported by the evidence.
However, because aspects of the superior court's analysis were incorrect or incomplete,
we find it necessary to lay out the proper analytical framework a court must follow in
applying ICWA's placement preferences and in determining whether good cause exists.
ICWA establishes preferences that must be followed in an adoption
placement with respect to an Indian child.89 A court may deviate from these preferred
placements only upon a showing of "good cause."90 In In re Adoption of Sara J. , we
made clear that "[a]lthough they are part of a common statutory scheme, inquiries into
suitable preferred placements are separate from inquiries into good cause."91 Thus,
before determining whether good cause exists to deviate from the placement preferences,
a court must first inquire as to whether any suitable preferred placements exist.
The "preferred placement" inquiry requires a court to apply the statutory
framework and follow the tiered order of preference mandated by ICWA, i.e., give
89 25 U.S.C. 1915(a) (2006).
90 Id. ; see In re Adoption of Sara J., 123 P.3d 1017, 1020 (Alaska 2005).
91 123 P.3d at 1023.
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preference first to a member of the child's extended family, then to other members of the
Indian child's tribe, and then to other Indian families.92 This does not end the inquiry,
however, as the court must also assess the suitability of each prospective placement if a
party alleges that a preferred placement is unsuitable.93 In other words, the court must
determine not only that a placement is preferred, but also that the placement would be
a suitable caretaker for the child.
We recognize that, although separate inquiries, the suitability and good
cause determinations will often overlap and can rarely be considered independent of one
another.94
We have established that, in assessing whether a prospective preferred
placement is suitable, " 'white, middle-class standards' [shall] not be used . . . ."95
Instead, ICWA 1915(d) mandates that:
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.
92 25 U.S.C. 1915(a).
93 See generally In re Adoption of Sara J., 123 P.3d at 1021-22.
94 Because the parties did not raise or brief the issue, we do not decide what
standard of proof should apply to the suitability determination. Although we discern no
principled basis for adopting inconsistent standards of proof for the good cause
determination and the suitability determination, particularly in light of our reasons for
adopting a heightened standard of proof for the good cause determination, we leave this
issue for the parties to brief and the superior court to address on remand if the issue
arises.
95 In re Adoption of Sara J. , 123 P.3d at 1021 (quoting House Report , supra
note 19, at 24, reprinted in 1978 U.S.C.C.A.N. 7530, 7546).
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We have explained that these standards "do not override or change the preference
requirements of 1915" and "taken alone cannot provide for a different order of
preference," but they may "support a conclusion that a higher-tier potential custodian is
unsuitable, thus clearing the way for a lower-tier custodian."96
We have not had occasion to review in detail the factors a court may
consider in its suitability analysis. In In re Adoption of Sara J. , we summarized the facts
of In re Jullian B. , a case from the California Court of Appeal in which a social worker
expressed concern about a potential placement's age, his inability to suggest a person
who could care for the child if he became incapacitated, his criminal history, his health,
and his lack of a support system.97 We stated that these factors were "relevant to the
suitability of the potential Native relative placement."98 Again, we stressed that these
factors must be "viewed in light of the prevailing social and cultural standards of the
Indian community."99
If a court determines that a preferred placement is suitable, it must then turn
to the good cause to deviate determination. We have explained that unlike the suitability
determination, the prevailing social and cultural standards of the Indian community do
not govern a court's good cause determination.100 They do, however "remain relevant
if the good cause inquiry raises questions about the suitability of a statutorily preferred
96 Id. at 1021-22.
97 Id . at 1026 (citing In re Jullian B. , 99 Cal. Rptr. 2d 241, 249-50
(Cal. App. 2000)).
98 Id .
99 Id .
100 Id . at 1020.
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placement."101 We have further held that the prevailing social and cultural standards
"may also inform, but need not control," a court's consideration of other factors in its
good cause analysis that do not implicate the suitability of a preferred placement.102
"ICWA does not define good cause, nor does it set forth factors to be
considered in determining whether good cause exists."103 The BIA guidelines provide
that a good cause determination "shall be based on one or more" of three factors: (1) the
preferences of the child or biological parents; (2) the child's extraordinary physical or
emotional needs; and (3) the unavailability of suitable preferred placements after a
diligent search for such placements has been conducted.104 We have previously
consulted these guidelines for guidance on appropriate factors to consider while noting
that they "are only persuasive and are neither exclusive nor binding."105 Rather, good
101 Id .
102 Id. at 1020, 1028 ("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 child's special needs.").
103 C.L. v. P.C.S., 17 P.3d 769, 773 (Alaska 2001).
104 Guidelines for State Courts, 44 Fed. Reg. at 67,594; see also Adoption of
Keith M.W. , 79 P.3d 623, 626 (Alaska 2003).
105 Adoption of Keith M.W. , 79 P.3d at 626; see also Adoption of N.P.S. , 868
P.2d 934, 936 (Alaska 1994) ("The guidelines assist but do not bind this court."); 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." (citing In re L.A.M. , 727
P.2d 1057, 1060 n.6 (Alaska 1986))). The Tribe argues that the BIA guidelines reflect
a general need to limit ICWA's good cause exception and cites decisions from other
states that have held that the guidelines should be considered an exclusive list of the
factors that a court may consider when making a good cause determination. We reiterate
(continued...)
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cause to deviate "depends on many factors,"106 including the child's best interests,107 the
child's symptoms of separation anxiety and attachment disorder,108 the child's strong
bond with the foster family and evidence the child would be harmed if that bond was
broken,109 the child's lack of a bond with a preferred placement,110 the child's need for
permanence,111 and the ability to meet the child's emotional, physical, medical, cultural,
or educational needs.112 Among these factors, "the best interests of the child remain
paramount."113
Here, the superior court considered the three BIA factors and found:
(1) there was no evidence that Dawn had extraordinary special needs; (2) there was no
testimony regarding the preferences of Dawn's biological parents; and (3) Elise was not
a suitable placement for Dawn. The superior court also found that Dawn's best interests
105(...continued)
our well-established rule that the BIA guidelines are neither binding nor exhaustive.
106 In re Adoption of F.H. , 851 P.2d at 1363-64.
107 C.L., 17 P.3d at 773; Adoption of N.P.S. , 868 P.2d at 936; In re Adoption
of F.H., 851 P.2d at 1364.
108 C.L., 17 P.3d at 774.
109 Paula E. v. State, Dep't of Health & Soc. Servs ., Office of Children's Servs.,
276 P.3d 422, 430 (Alaska 2012); In re Adoption of Bernard A. , 77 P.3d 4, 8 (Alaska
2003); C.L., 17 P.3d at 775; In re Adoption of F.H. , 851 P.2d at 1365.
110 C.L., 17 P.3d at 773-75.
111 In re Adoption of F.H. , 851 P.2d at 1365.
112 Paula E. , 276 P.3d at 430; In re Adoption of Sara J. , 123 P.3d 1017, 1032-
33 (Alaska 2005); C.L., 17 P.3d at 775; Adoption of N.P.S. , 868 P.2d at 938.
113 Adoption of N.P.S. , 868 P.2d at 936; see also C.L., 17 P.3d at 773 ("The
best interests of the child remain the paramount criterion.").
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compelled continued placement with the Smiths, based on: (1) the emotional trauma that
Dawn would experience if moved from the Smiths, "particularly given the child's
reactive attachment disorder symptoms"; (2) Dawn's need for permanence, and the fact
that the adoption process with Elise would take approximately one year; and (3) Dawn's
lack of a bond with Elise.
In finding good cause, the superior court did not rely on any factors we
have not to some extent previously endorsed. Thus, all of the factors considered by the
superior court were, generally speaking, appropriate factors to consider; but, for the
reasons explained above, a remand is necessary because the superior court considered
them under the improper standard of proof. On remand, the superior court must
reconsider the factors it deems relevant under the heightened standard of proof.
A remand is also necessary because it appears the superior court failed to
perform a separate suitability analysis distinct from its good cause analysis. The superior
court analyzed suitability under a separate heading in its decision; the suitability analysis
followed the good cause analysis. Importantly, the superior court explained: "There is
little precedential guidance for this court on the factors that the court may consider in
determining whether or not there are suitable preference families in making the good
cause determination for variation from the ICWA placement preferences." (Emphasis
added.) While it was appropriate for the superior court to consider the unavailability of
suitable preferred placements within its good cause determination, the court was also
required, as we have explained, to perform a separate suitability inquiry.114
The superior court also concluded that In re Adoption of Sara J. 's
discussion of the applicability of the prevailing social and cultural standards of the Indian
community to the suitability analysis was "dicta." It therefore erroneously analyzed
114 In re Adoption of Sara J. , 123 P.3d at 1023.
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Elise's suitability without consulting the prevailing social and cultural standards of the
Indian community. The superior court relied on Elise's age (67) and her husband's age
(70) as compared to Dawn's age (3), evidence of Elise's husband's health problems, and
Elise's lack of a credible contingency plan to ultimately reject Elise as a suitable
placement, finding it unlikely that she could "keep up with and provide appropriate care
for a three year old child," or that she and her husband would "both be alive for the
minority of the child."
There are several problems with the superior court's analysis. First,
although age may be a relevant factor for a court to consider in conjunction with an
elderly placement's health problems or lack of a credible contingency plan, the court did
not assess these factors in light of the prevailing social and cultural standards of the
Indian community115 even though the record was replete with evidence of these
standards.116 Had the court considered this unrebutted evidence, it would have found that
it is socially and culturally customary that elderly Native people provide custodial care
to very young children. We also note that even in a non-ICWA case, advanced age alone
should not ordinarily be a determinative factor - even under "white, middle class
115 Id. at 1021.
116 The court heard considerable testimony from Village Council Presidents
ICWA Director Oftt about the importance of family in Yup'ik culture and the role
Yup'ik elders play in Yup'ik communities. Oftt also testified that the Tribe thought it
was in Dawn's best interests to live in the village because "that would be with family and
that would be within her Yup'ik culture." And when asked whether she had any
concerns that Elise would be an unsuitable placement for Dawn because of her advanced
age, Oftt responded no, because "[w]hen someone dies in the village, everyone pitches
in and I have no doubt that someone would step forward to take over that [caretaker]
role." Elise also testified that there was nothing unusual about grandparents raising a
grandchild in the village.
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standards"117 it has been common in our country and in Alaska for elderly grandparents
or relatives to assume care for very young children.
On remand the superior court must, in accordance with In re Adoption of
Sara J., consider the prevailing social and cultural standards of the Indian community
in its determination of whether a prospective preferred placement is suitable before it
reaches the good cause determination. We emphasize that a prospective placement's
advanced age alone should not ordinarily be a determinative factor in finding that that
placement is unsuitable. We also recognize that as time has passed, the facts and
circumstances may have changed (both regarding suitable preferred placement factors
and good cause to deviate factors). Accordingly, the parties may present new evidence,
including expert testimony, on all relevant issues.
V. CONCLUSION
ICWA requires that the "clear and convincing evidence" standard of proof
applies to the 25 U.S.C. 1915(a) good cause determination. Our precedents are
overruled to the extent that they hold that the preponderance of the evidence standard
applies to this determination. Because this case was decided under the preponderance
of the evidence standard, and because the superior court's analysis of the issues of
suitability and good cause was incorrect, we REVERSE and REMAND for further
proceedings consistent with this opinion.
117 See In re Adoption of Sara J., 123 P.3d at 1021(citing House Report , supra
note 19, at 24, reprinted in 1978 U.S.C.C.A.N. 7530, 7546).
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