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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 (9/12/2014) sp-6954
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-14670
Appellant, )
) Superior Court No. 3AN-11-02236 PR
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6954 - September 12, 2014
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, and )
H.S. and K.S., )
)
Appellees. )
)
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 State of Alaska. Kenneth C.
Kirk, Anchorage, for Appellees H.S. and K.S. Notice of
nonparticipation filed by Kristen C. Stohler, Stohler Law,
P.C., Palmer, on behalf of Kathleen Wilson, Anchorage,
Guardian Ad Litem. Heather Kendall-Miller, Erin C.
Dougherty, and Matthew N. Newman, Native American
Rights Fund, Anchorage, for Amicus Curiae Native Village
of Kotzebue.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
WINFREE, Justice, dissenting.
----------------------- Page 2-----------------------
I. INTRODUCTION
This is the second appeal in a case that began in July 2008 when the Alaska
1
from
Office of Children's Services (OCS) assumed custody of four-month-old Dawn
2 3
her parents. Dawn was found to be a child in need of aid (CINA). Dawn's parents
were Native Alaskans and thus the protections and requirements of the Indian Child
4 5
Welfare Act (ICWA) applied to the CINA case. One of ICWA's provisions establishes
preferences for foster care and adoptive placement of an Indian child with a member of
the child's extended family, with other members of the child's tribe, or with other Indian
6
families. Native Village of Tununak (the Tribe) intervened in Dawn's CINA case and
submitted a list of potential placement options for Dawn, including Dawn's maternal
7 Throughout much of the case, the parents
grandmother, Elise, who lives in the village.
and Tribe agreed there was good cause not to place Dawn with an ICWA preferred
placement, and Dawn was eventually placed with the Smiths, non-Native foster parents
who live in Anchorage.8
1 We use pseudonyms to protect the privacy of the parties involved.
2 Native Vill. of Tununak v. State, Dep't of Health & Social Servs., Office of
Children's Servs., 303 P.3d 431, 433 (Alaska 2013) (Tununak I).
3 Id .
4 25 U.S.C. §§ 1901-1963 (2012).
5 Tununak I, 303 P.3d at 433.
6 25 U.S.C. § 1915(a).
7 Tununak I, 303 P.3d at 433.
8 Id . at 434-35.
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----------------------- Page 3-----------------------
The superior court terminated Dawn's parents' parental rights at a
9
September 2011 trial, making Dawn eligible for adoption. The Tribe asserted that,
given the termination of parental rights, there was no longer good cause to deviate from
ICWA's placement preferences and objected to Dawn's continued placement in
10 11
Anchorage. In November the Smiths filed a petition to adopt Dawn. At no point in
the case did Elise file an adoption petition in the superior court.
The superior court conducted a placement hearing following the Tribe's
12
objection to placement with the Smiths. Following testimony by a number of
witnesses, including Elise,13 the court found that there was continued good cause to
deviate from ICWA's adoptive placement preferences and again approved Dawn's
14
The court then granted the Smiths' adoption petition in
placement with the Smiths.
15
March 2012. Dawn was almost four years old, and had lived with the Smiths for
almost two and a half years.16
In separate appeals, the Tribe appealed both the superior court's order
finding that there was good cause to deviate from ICWA's placement preferences and
9 Id . at 435.
10 Id .
11 Id .
12 Id . at 435-39.
13 Id . at 437-38.
14 Id . at 439-40.
15 Id . at 440.
16 Id . at 434, 440.
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----------------------- Page 4-----------------------
17
the adoption order. We issued an order staying the adoption appeal while we
considered the adoptive placement appeal.18
On June 21, 2013, we issued our decision in the first appeal that examined
Dawn's adoptive placement with the Smiths.19 We reversed the superior court's finding
20
Though we had held
of good cause to deviate from ICWA's placement preferences.
in previous cases that the preponderance of the evidence standard was the correct
standard of proof, we were convinced by the Tribe's argument that the preponderance
standard was inconsistent with Congress's intent in enacting ICWA, and that a higher
21
We
standard of proof - proof by clear and convincing evidence - was required.
overruled our prior cases and remanded the adoptive placement case to the superior court
for it to take additional evidence and make its determination whether there was clear and
convincing evidence of good cause to deviate from ICWA's adoptive placement
22 23
preferences. We continued our stay order of the adoption appeal.
17 Id . at 440 n.10.
18 Id .; see also Native Vill. of Tununak v. State, OCS, et al. , No. S-14670
(Alaska Supreme Court Order, Nov. 29, 2012) (staying sua sponte the adoption appeal
pending the resolution of the adoption placement appeal).
19 Tununak I, 303 P.3d at 431.
20 Id . at 453.
21 Id . at 446-49.
22 Id . at 453.
23 Native Vill. of Tununak v. State, OCS, et al. , No. S-14670 (Alaska Supreme
Court Order, Nov. 29, 2012); Native Vill. of Tununak v. State, OCS, et al. , No. S-14670
(Alaska Supreme Court Order, June 21, 2013) (ordering briefing on whether the stay of
the adoption appeal should continue following the court's issuance of its opinion in the
adoption placement appeal).
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----------------------- Page 5-----------------------
Four days after we issued our opinion in the adoptive placement appeal
(Tununak I), the United States Supreme Court issued its opinion in Adoptive Couple v.
24
Baby Girl (Baby Girl). There, the Supreme Court held that ICWA "§ 1915(a)'s
[placement] preferences are inapplicable in cases where no alternative party has formally
sought to adopt the child. This is because there simply is no 'preference' to apply if no
alternative party that is eligible to be preferred under § 1915(a) has come forward."25
We asked the parties to provide supplemental briefing and oral argument
on the effect of the Supreme Court's Baby Girl decision on the adoption appeal currently
26
before us. We now hold that because the United States Supreme Court's decisions on
issues of federal law bind state courts' consideration of federal law issues - including
the Indian Child Welfare Act - the decision in Baby Girl applies directly to the adoptive
placement case on remand and to this adoption appeal. We discern no material factual
differences between the Baby Girl case and this case, so we are unable to distinguish the
holding in Baby Girl . Because the Supreme Court's holding in Baby Girl is clear and
not qualified in any material way, and because it is undisputed that Elise did not
"formally [seek] to adopt" Dawn in the superior court, we conclude that, as in Baby Girl ,
"there simply is no 'preference' to apply[,] [as] no alternative party that is eligible to be
24 133 S. Ct. 2552 (2013).
25 Id . at 2564. The dissent argues that this portion of the opinion was dicta.
We disagree. While "statements of a legal rule set forth in a judicial opinion do not
always divide neatly into 'holdings' and 'dicta,' " Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 831 (2007) (Breyer, J., dissenting), in this case,
the Court's Baby Girl opinion is divided into distinct sections considering three discrete
subdivisions of ICWA: §§ 1912(f), 1912(d), and 1915(a). See Baby Girl, 133 S. Ct. at
2557. The Court's discussion of § 1915(a) is succinct and its holding unequivocal, id.
at 2564-65, and we apply it to the facts of the present appeal.
26
Native Vill. of Tununak v. State, OCS, et al. , No. S-14670 (Alaska Supreme
Court Order, Oct. 7, 2013) (ordering briefing and oral argument on the effect of Baby
Girl on the adoption case).
-5- 6954
----------------------- Page 6-----------------------
preferred under § 1915(a) has come forward[,]" and therefore ICWA "§ 1915(a)'s
27
[placement] preferences are inapplicable." We affirm the superior court's order
granting the Smiths' petition to adopt Dawn and vacate our remand order in Tununak I
requiring the superior court to conduct further adoptive placement proceedings. We do
not otherwise disturb our decision in Tununak I.
II. FACTS AND PROCEEDINGS
A. Facts
28
When she was four
Dawn F. was born in Anchorage in March 2008.
months old OCS assumed emergency custody and placed her in foster care in
29
Anchorage. The Tribe formally intervened in Dawn's CINA case in August 2008 and
submitted a list of potential foster placement options under Alaska Child in Need of Aid
30
Rule 8(c)(7) for Dawn, including placement with her maternal grandmother, Elise F.,
27 Baby Girl , 133 S. Ct. at 2564.
28 Tununak I, 303 P.3d at 433.
29 Id .
30 That rule states:
Except to the extent otherwise directed by order or
rule, [a tribe that has intervened in the proceedings] shall,
without awaiting a discovery request, provide to other parties
the following information, excluding any privileged material:
. . . .
. . . names and contact information for extended family of the
child, a list of potential placements under . . . § 1915, and a
summary of any tribal services or tribal court actions
involving the family.
Unless otherwise directed by the court, these disclosures shall
be made within 45 days of the date of service of the petition
for adjudication, or for tribes, the date of the order granting
(continued...)
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----------------------- Page 7-----------------------
31
who lived in Tununak. Elise discussed foster placement at meetings with OCS in July
and September 2008, but OCS ruled her out as a potential placement because an adult
32
OCS placed
son living with her at the time had a barrier-crime for placement purposes.
Dawn in a non-Native foster home to facilitate visitation with her mother, Jenn F., who
33
lived in Anchorage. In November 2008 the parties stipulated that there was good cause
to deviate from ICWA's placement preferences, and in March 2009 the superior court
found there was good cause to continue the deviation, as Jenn was progressing with her
OCS case plan and it appeared she might be reunited with Dawn.34 In August 2009 Elise
contacted OCS to report that her son had moved out; she confirmed that she still sought
foster placement.35
In October 2009 OCS placed Dawn with non-Native foster parents Kim and
Harry Smith in Anchorage, and in December 2009 Elise visited Dawn.36 Following this
30(...continued)
intervention. A party shall make its initial disclosures based
on the information then reasonably available to it and is not
excused from making its disclosures because it has not fully
completed its investigation of the case or because it
challenges the sufficiency of another party's disclosures or
because another party has not made its disclosures.
31 Tununak I, 303 P.3d at 433.
32 Id . at 433-34.
33 Id . at 434.
34 Id .
35 Id .
36 Id .
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----------------------- Page 8-----------------------
meeting, Elise did not call, write, or communicate with Dawn.37 Also in December 2009
a representative from the Association of Village Council Presidents visited Elise's home
in Tununak on OCS's behalf and noted potential hazards in the home that needed to be
38
addressed before placement could occur. These included unsecured guns, cleaning
supplies, medicine, and general clutter in the area that Elise planned to use as Dawn's
39
In February 2010 Elise assured OCS she would remedy these issues, and
bedroom.
OCS asked Elise to arrange for a second home visit once she made the proposed
changes.40
In May 2010 Elise attended a visit with Jenn and Dawn and told an OCS
social worker that she thought Jenn would complete substance abuse treatment; Elise did
not seek foster placement at that time and had not remedied the issues in her home.41
OCS filed two petitions to terminate Jenn's parental rights: the first was denied in
42
November 2010, and a second was filed in April 2011. At a status conference in
February 2011 Elise was present telephonically, and she questioned the court about
43
whether Dawn would be returned to Jenn. The court advised her in no uncertain terms
that it was not safe for Dawn to return to Jenn's household given Jenn's continuing
37 Id .
38 Id .
39 Id .
40 Id .
41 Id .
42 Id . at 434-35.
43 Id . at 435.
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----------------------- Page 9-----------------------
44
mental health issues and illegal drug use. The superior court ultimately terminated
Jenn's parental rights in September 2011.45 Following termination the Tribe argued there
was no longer good cause to deviate from ICWA's placement preferences, and a
placement hearing was scheduled.46
The Smiths filed an adoption petition on November 3, 2011, and the
petition was stayed pending the resolution of the ICWA placement hearing on
November 14, 2011.47
B. Proceedings
1. The placement hearing and appeal
The superior court noted at the outset of the placement hearing that it would
not consolidate the CINA placement case with the adoption case, but cautioned the Tribe
that it would not get "two bites at the apple"; in other words, "if the Tribe los[t], it
48
[would]n't get to contest placement in the adoption proceeding." We explained in
Tununak I that "[w]hen 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
49
case" and that "denying the Tribe's objections to adoptive placement
[effectively] . . . clear[ed] the way for the Smiths to adopt Dawn."50
44 Id .
45 Id .
46 Id .
47 Id .
48 Id . at 443.
49 Id .
50 Id . at 444.
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----------------------- Page 10-----------------------
51
Elise testified at the hearing. She had previously been an ICWA social
52 When asked if she wanted to take care of
worker and was aware of her ICWA rights.
Dawn just because the Tribe wanted her to she answered with an equivocal "[y]es and
53
no." She clarified: "[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
[can] learn her values in Native culture and traditions and where she came from."54 Elise
also said that she had not been able to see Dawn very often due to the expense of travel;
she did not call or write letters to Dawn because the child was too young to read or
communicate; she knew Dawn did not know her at that point; and she understood Dawn
would have to be gradually introduced to life in the village to prevent culture shock.55
Elise testified that she wanted Dawn to be placed with her "from the beginning" and she
recognized that "if [Dawn] had moved [in] with me when [Dawn] was [a] young infant,
then it could have been easier because [Dawn] would have known [her] grandmother[,]"
but at this point Dawn had been "raised by [Kim and Harry Smith]." Elise also indicated
at this hearing that she had filed a petition to adopt Dawn, but the record contains no
evidence that such a petition was ever filed, and no party has argued to the contrary.55
In its decision on placement the superior court noted that Elise was 67 years
old and would be 82 when Dawn turned 18.56 The court found Elise's testimony on the
51 Id . at 437-38.
52 Id .
53 Id . at 438.
54 Id . (internal quotation marks omitted).
55 Id .
55 In its briefing to us the Tribe conceded that no court petition was filed.
56 Id . at 439.
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----------------------- Page 11-----------------------
question of whether she wanted to adopt Dawn "less than convincing" and pointed out
that she had maintained almost no contact with Dawn and knew nothing of Dawn's life
57
in Anchorage. The court also found that Elise testified that she wanted to adopt Dawn
58
because the Tribe wanted her to. The court found that the Smiths had been
"exceptional foster parents" to Dawn.59 Ultimately, the court determined there was good
cause to deviate from ICWA's placement preferences by a preponderance of the
60 The Tribe moved to stay the
evidence in accordance with Alaska Adoption Rule 11(f).
Smiths' adoption proceeding pending the Tribe's appeal of the placement ruling to our
court, but this motion was denied.61
2. The adoption hearing and appeal
On March 6, 2012, the superior court held an adoption hearing and granted
62
the Smiths' adoption petition. At that hearing the court noted that, since the placement
hearing, "[n]o individual has come forward" and "[n]o names have been put forward of
somebody who would be ICWA compliant under 1915(a) and the [Smiths] have been
there for Dawn for . . . these several years and the child's almost four." The court
concluded it was in Dawn's best interest to be adopted that day by the Smiths, but
cautioned that "the adoption [could] be reversed . . . anything could happen including
removal of the child" from the Smiths' care. Elise did not appear at the adoption hearing.
57 Id .
58 Id .
59 Id .
60 Id . at 439-40.
61 Id . at 440.
62 Id .
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----------------------- Page 12-----------------------
The Tribe appealed the adoption to our court. On November 29, 2012, we
issued an order sua sponte staying the adoption appeal pending our decision in the
related adoption placement appeal.63
3. Our decision in the placement appeal in Tununak I and the
United States Supreme Court's decision in Baby Girl
We issued our decision in the placement appeal on June 21, 2013.64 In that
opinion we reversed and remanded the superior court's adoptive placement decision.65
We concluded that ICWA requires a heightened clear and convincing evidence standard
66
of proof be applied to the § 1915(a) good cause determination. Because the superior
court's placement decision was decided under a preponderance of the evidence standard,
we remanded for the superior court to undertake a new good cause determination,
consistent with a clear and convincing evidence standard, to decide whether deviation
from the preferred placement preferences provided in ICWA § 1915(a) was
67
appropriate. We issued an order along with our decision in Tununak I that requested
the parties to brief their positions on whether our stay of Dawn's adoption appeal should
68
continue pending the superior court's proceedings on remand following Tununak I.
The United States Supreme Court issued its decision in Adoptive Couple
v. Baby Girl four days later; the Court held that ICWA "§ 1915(a)'s preferences are
63 Native Vill. of Tununak v. State, OCS, et al. , No. S-14670 (Alaska Supreme
Court Order, Nov. 29, 2012).
64 Tununak I, 303 P.3d at 431.
65 Id . at 453.
66 Id .
67
Id . at 452-53.
68 Native Vill. of Tununak v. State, OCS, et al. , No. S-14670 (Alaska Supreme
Court Order, June 21, 2013).
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inapplicable in cases where no alternative party has formally sought to adopt the child.
This is because there simply is no 'preference' to apply if no alternative party that is
eligible to be preferred under § 1915(a) has come forward."69
In Baby Girl, the child's biological father (Biological Father) and biological
mother (Birth Mother) broke off their engagement after Birth Mother became pregnant
but would not accommodate Biological Father's request to move up the wedding.70
Biological Father had no meaningful contact with Birth Mother following the couple's
separation and sent her a text message indicating that he wished to relinquish his parental
71
rights. Birth Mother decided to give the child up for adoption and selected a non-
Native adoptive couple (Adoptive Couple) through a private adoption agency.72
Approximately four months after Baby Girl's birth, Adoptive Couple
73
served Biological Father with notice of their pending adoption petition. Biological
74
Father signed the paperwork, stating he was not contesting the adoption. He later
testified that he assumed he was relinquishing parental rights to Birth Mother.75
Biological Father contacted a lawyer a day after signing the papers and subsequently
76 In those proceedings he sought custody
requested a stay of the adoption proceedings.
of Baby Girl, took a paternity test, and participated in a four-day trial after which the
69 Baby Girl , 133 S. Ct. 2552, 2564 (2013).
70
Id . at 2558.
71 Id .
72 Id .
73 Id .
74 Id .
75 Id .
76 Id . at 2558-59.
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South Carolina Family Court ultimately awarded him custody and denied Adoptive
Couple's adoption petition.77
That decision was appealed to the South Carolina Supreme Court, and
78
Biological Father participated in that appeal. The South Carolina Supreme Court
characterized his appeal as a "legal campaign to obtain custody" and affirmed the family
79
court order. The decision was appealed to the United States Supreme Court, and
80
Biological Father again participated in that appeal. At no point did Biological Father
81
file a petition to adopt Baby Girl.
The United States Supreme Court ultimately reversed the South Carolina
Supreme Court, holding in part that ICWA "§ 1915(a)'s preferences are inapplicable in
82
cases where no alternative party has formally sought to adopt the child." The Court
reasoned: "This is because there simply is no 'preference' to apply if no alternative party
that is eligible to be preferred under § 1915(a) has come forward."83
Because the Supreme Court's interpretation of ICWA § 1915(a) in Baby
Girl called into doubt the application of § 1915(a)'s placement preferences on remand
in Tununak I - as no one but the Smiths sought to formally adopt Dawn - we issued
77 Id . at 2559; Adoptive Couple v. Baby Girl , 731 S.E.2d 550, 555-56 (S.C.
2012) (Adoptive Couple ) (indicating that the trial took place from September 12-15,
2011, when Baby Girl was roughly two years old), reh'g denied, (Aug. 22, 2012), cert.
granted , 133 S. Ct. 831 (2013), and rev'd, 133 S. Ct. 2552 (2013).
78 Adoptive Couple , 731 S.E.2d at 552.
79 Id . at 552, 561.
80 Baby Girl , 133 S. Ct. at 2556.
81 Id . at 2564.
82 Id .
83 Id .
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an order directing the parties to brief the effect of Baby Girl on the present adoption
appeal and granted oral argument in the matter.84
III. STANDARD OF REVIEW
"[T]he [United States] Supreme Court's decisions on issues of federal law,
including issues arising under the Federal Constitution, bind the state courts'
85 86
consideration of those issues," and we review those issues de novo. Pure questions
of law, including issues of statutory interpretation, invoke our "duty to 'adopt the rule
87
using our
of law that is most persuasive in light of precedent, reason, and policy' "
independent judgment. 88
IV. DISCUSSION
All parties agree that we must decide the Tribe's challenge on appeal to the
Smiths' adoption of Dawn in light of the Supreme Court's decision in Baby Girl . The
State contends that "[b]ecause no one other than the Smiths formally sought to adopt
Dawn, her adoption should be upheld under the controlling [Baby Girl] decision." The
Smiths agree. The Tribe urges us to vacate the superior court's adoption decree and
remand this matter for an adoptive placement determination based on our decision in
Tununak I that required the superior court to find, under a clear and convincing evidence
standard, whether there is good cause to deviate from ICWA § 1915(a)'s placement
84 Native Vill. of Tununak v. State, OCS, et al. , No. S-14670 (Alaska Supreme
Court Order, Oct. 7, 2013).
85 Doe v. State, Dep't of Pub. Safety , 92 P.3d 398, 404 (Alaska 2004).
86
State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty,
167 P.3d 64, 68-70 (Alaska 2007) (applying de novo review to § 1983 claims as a matter
of federal law).
87
West v. Buchanan, 981 P.2d 1065, 1066 (Alaska 1999) (quoting Guin v.
Ha , 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
88 Doe , 92 P.3d at 402.
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----------------------- Page 16-----------------------
preferences. The Tribe takes the position that: (1) Baby Girl is factually distinguishable
and inapplicable to state-driven child protection cases; (2) to the extent Baby Girl does
apply, it merely requires that a specific family be formally identified as desiring
placement of the Native child and Elise satisfied that requirement in this case; and (3) the
requirement is satisfied in Alaska as soon as a tribe intervenes in the case and makes
formal CINA Rule 8(c)(7) disclosures.
Finally, the Tribe contends that, if we interpret Baby Girl to mean that
ICWA's placement preferences are inapplicable until an alternative adoptive family files
a competing adoption petition, this decision will have disastrous results for rural Alaska,
placing the largest burden on Native families with the fewest legal and financial
resources, and create a dangerous disincentive for OCS, as the agency will place Native
children in the first available home, thereby neutering the protections that ICWA
originally sought to provide to promote the preservation of the Indian family.
The Tribe's interpretation of Baby Girl , as echoed by the dissent, strains the
plain wording of a clear, unequivocal, and unqualified decision on a matter of federal law
as interpreted by the United States Supreme Court. For the reasons that follow, we
conclude that we are required to apply the Supreme Court's bright-line interpretation of
ICWA § 1915(a)'s placement preferences to bar from consideration as an adoptive
placement an individual who has taken no formal step to adopt the child.
A. ICWA § 1915(a) and Baby Girl Do Not Distinguish A State-Initiated
Child Custody Proceeding From A Voluntary Private Adoption.
ICWA § 1915(a)'s placement preferences apply to "any adoptive placement
89 and ICWA defines adoptive placements broadly
of an Indian child under State law,"
as "the permanent placement of an Indian child for adoption, including any action
89 25 U.S.C. § 1915(a) (emphasis added).
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----------------------- Page 17-----------------------
90
resulting in a final decree of adoption." The federal statute does not distinguish
between state-initiated child protection cases and voluntary adoptions. The Supreme
Court in Baby Girl also did not carve out such a distinction. In Baby Girl , the Supreme
Court held without qualification that § 1915(a), "which provides placement preferences
for the adoption of Indian children, does not bar a non-Indian family like Adoptive
Couple from adopting an Indian child when no other eligible candidates have sought to
91
adopt the child." The Court emphasized that the "scope" of § 1915(a) has a "critical
limitation," namely, that "§ 1915(a)'s preferences are inapplicable in cases where no
92
alternative party has formally sought to adopt the child." The Court reiterated, "This
is because there simply is no 'preference' to apply if no alternative party that is eligible
93
to be preferred under § 1915(a) has come forward." To make its rationale perfectly
clear, the Court again explained that, because Adoptive Couple was the only family that
"sought to adopt Baby Girl," § 1915(a)'s "rebuttable adoption preferences [did not]
94
apply [because] no alternative party . . . formally sought to adopt the child." As a
policy matter, the Court broadly concluded that while ICWA "was enacted to help
preserve the cultural identity and heritage of Indian tribes," to require a placement
preference determination for a party who did not seek to adopt "would put certain
vulnerable children at a great disadvantage solely because an ancestor - even a remote
95
one - was an Indian." The Court cautioned that such a result may cause "prospective
90 25 U.S.C. § 1903(l)(iv) (emphasis added).
91 Baby Girl , 133 S. Ct. 2552, 2557 (2013).
92 Id . at 2564.
93 Id .
94 Id . at 2565.
95 Id .
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adoptive parents [to] . . . pause before adopting any child who might possibly qualify as
an Indian under the ICWA."96
The dissent characterizes these statements by the United States Supreme
Court interpreting § 1915(a) as dicta addressing the South Carolina Supreme Court's
suggestion that if it had terminated Biological Father's rights, § 1915(a)'s preferences
would have applied. But Baby Girl explained, clarified, and decided that § 1915(a) did
not apply where no alternative party sought to adopt the Indian child, as was the case of
Biological Father. When discussing the distinction between a holding and dictum, the
Supreme Court has directed that "[w]hen an opinion issues for the Court, it is not only
the result[,] but also those portions of the opinion necessary to that result by which we
97
are bound." We are likewise bound by the Supreme Court's holding concerning
§ 1915(a); it was necessary to the Supreme Court's reversal of the judgment of the South
98
In those
Carolina Supreme Court and its remand of the case for further proceedings.
96 Id .
97 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996).
98 See Baby Girl, 133 S. Ct. at 2564-65. The dissent points out that Baby Girl
did not consistently use the word "hold" in its summary of the three central holdings in
the case; instead, the Court stated:
[W]e hold that 25 U.S.C. § 1912(f) . . . does not apply when,
as here, the relevant parent never had custody of the child.
We further hold that § 1912(d) . . . is inapplicable when, as
here, the parent abandoned the Indian child before birth and
never had custody of the child. Finally, we clarify that
§1915(a) . . . does not bar a non-Indian family like Adoptive
Couple from adopting an Indian child when no other eligible
candidates have sought to adopt the child. We accordingly
reverse the South Carolina Supreme Court's judgment and
remand for further proceedings.
Id . at 2557 (emphasis added). Contrary to the dissent's argument, we do not agree that
(continued...)
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----------------------- Page 19-----------------------
98(...continued)
the Court's use of the word "clarify" as opposed to "hold" when addressing §1915(a)
"leaves room for states to determine under their own adoption procedures when an
eligible candidate has come forward such that the preferences should be applied." Our
cases often use the word "clarify" to signal a holding. For example, in Bruce L. v. W.E. ,
247 P.3d 966, 976 (Alaska 2011), we stated:
At first blush A.B.M. seems to mandate a reversal of the trial
court's determination that Timothy is not an Indian child
because the Eberts' concessions to the contrary throughout
the proceedings should constitute judicial admissions. But
given our subsequent case law defining the limitation of
judicial admissions to purely factual matters and our
discussion here regarding the nature of membership or
eligibility for membership in a tribe, we clarify that the
holding of A.B.M. is limited to precluding the adoptive
parents from arguing a new position on appeal contrary to a
position they had taken in the superior court on an issue not
raised to or decided by that court.
(emphasis added) (footnote omitted). See also Griswold v. City of Homer, 252 P.3d
1020, 1027 (Alaska 2011) ("We therefore clarify that where the superior court acts as an
intermediate appellate court . . . its opinion or decision on appeal is the 'judgment' to
which [the applicable appellate rule] refers." (emphasis added)); Husseini v. Husseini ,
230 P.3d 682, 688 (Alaska 2010) ("We take this opportunity to elaborate on our holding
in [a prior case] . . . . [W]e clarify that the trial court's decision to order the sale of a
marital asset prior to the final property decision must be accompanied by factual findings
that demonstrate the exceptional circumstances justifying such a sale and that specifically
articulate the grounds upon which the order for sale is based." (emphasis added)); Keane
v. Local Boundary Comm'n , 893 P.2d 1239, 1249-50 (Alaska 1995) ("[W]e clarify that
the test presented in [our prior case], is still applicable . . . [and] 'a different rule applies
where the party seeking the injunction stands to suffer irreparable harm and where, at the
same time, the opposing party can be protected from injury.' " (emphasis added) (citation
omitted)).
We conclude that the dissent's "reliance on words, phrases, and quotations"
over substantive legal conclusions in this case confuses dicta from the Court's actual
holding. Judith M. Stinson, Why Dicta Becomes Holding and Why It Matters, 76
BROOK . L. REV . 219, 222 (2010). The Supreme Court, as the ultimate arbiter of federal
(continued...)
-19- 6954
----------------------- Page 20-----------------------
further proceedings, it was clear to the South Carolina Supreme Court that § 1915(a)'s
rebuttable adoption preferences did not apply to Biological Father, and the South
Carolina court did not apply them. As the South Carolina Supreme Court stated on
remand:
The [United States] Supreme Court has articulated the
federal standard , and its application to this case is
clear: . . . ICWA does not authorize [Biological] Father's
retention of custody. Therefore, we reject [Biological]
Father's argument that 1915(a)'s placement preferences
could be an alternative basis for denying the Adoptive
Couple's adoption petition. The Supreme Court majority
opinion unequivocally states [] [that] "§ 1915(a)'s preferences
are inapplicable in cases where no alternative party has
formally sought to adopt the child." . . . . As the opinion
suggests, at the time Adoptive Couple sought to institute
adoption proceedings, they were the only party interested in
adopting [Baby Girl]. Because no other party has sought
adoptive placement in this action, § 1915 has no application
[99]
in concluding this matter . . . .
The Supreme Court's federal standard is now clear, and consequently § 1915(a)'s
preferences will not apply in this case.
The dissent asserts that Baby Girl is factually distinguishable because
"[r]ather than a termination of parental rights through a private adoption arranged by a
non-Indian parent after an Indian parent abandoned the child, this was a state-sponsored
parental rights termination and a state-sponsored adoptive placement clearly subject to
98(...continued)
law, has counseled that "unless we wish anarchy to prevail within the . . . judicial system,
a precedent of this Court must be followed by the lower . . . courts [on issues of federal
law] no matter how misguided the judges of those courts may think it to be." Hutto v.
Davis , 454 U.S. 370, 375 (1982). Baby Girl compels today's result.
99 Adoptive Couple v. Baby Girl , 746 S.E.2d 51, 52-53 (S.C. 2013) (footnote
and citation omitted) (emphasis added), petitions for reh'g denied , 746 S.E.2d 346 (S.C.
2013), stay denied, 134 S. Ct. 32 (2013).
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----------------------- Page 21-----------------------
ICWA." The Supreme Court previously has explicitly discussed distinctions between
voluntary and non-voluntary relinquishments of parental rights in the context of ICWA;
it did not do so in Baby Girl . In Mississippi Band of Choctaw Indians v. Holyfield
(Holyfield), the Court noted that while the focus of Congressional testimony on ICWA
was "on the harm to Indian parents and their children who were involuntarily separated
by decisions of local welfare authorities, there was also considerable emphasis on the
100
outside
impact on the tribes themselves [from] the massive removal of their children"
101
of this context. The Holyfield decision involved the voluntary adoption of twin
102
babies. The Court concluded that ICWA still applied to such a situation because
"[t]ribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of
individual members of the tribe,"103 and congressional intent clearly indicated that an
100 490 U.S. 30, 34 (1989).
101 Id . at 49-51 (discussing how Congress subjects non-Indian family
placements of young Indian children to ICWA's "jurisdictional and other provisions,
even in cases where the parents consented to an adoption, because of concerns going
beyond the wishes of individual parents" (emphasis added)).
102 Id . at 37. In Holyfield a petition for adoption was filed for twin babies
whose parents were enrolled members of the Mississippi Band of Choctaw Indians and
residents and domiciliaries of the tribal reservation in Mississippi. Id . The twins were
born 200 miles from the reservation, and the parents executed consent-to-adoption forms
leading to the adoption of the children by non-Indian adoptive parents. Id . at 37-38. The
tribe moved to vacate and set aside the decree of adoption. Id . at 38. The Supreme Court
held the children were "domiciled" on the reservation within the meaning of ICWA's
exclusive tribal jurisdiction provision even though they were never physically present
on the reservation themselves, and the trial court was without jurisdiction to enter the
adoption decree even though the children were "voluntarily surrendered" for adoption.
Id . at 48-51.
103 Id . at 49.
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----------------------- Page 22-----------------------
individual Indian could not defeat ICWA's jurisdictional scheme by voluntary action. 104
In Holyfield , the Court adopted and applied its broad-sweeping
interpretation of ICWA to all types of parental rights relinquishment cases, including
those arising out of a parent's voluntary action. If in Baby Girl the Court had intended
to limit its holding to voluntary adoptions, it certainly could have articulated such a
restriction. But no such limiting language appears in the Court's opinion in Baby Girl .
Because the Court did not limit its holding in Baby Girl to voluntary adoptions, we reject
the Tribe's and the dissent's attempt to factually distinguish Baby Girl from the case
before us where the adoption resulted from state-initiated child protective proceedings.
B. Elise Did Not Formally Seek To Adopt Dawn.
We are "not bound by decisions of federal courts other than the United
105 But in cases where the Supreme
States Supreme Court on questions of federal law."
Court has decided a question of federal law that is directly applicable to and binding on
the case we are to decide, we "owe obedience to the decisions of the Supreme Court of
the United States . . . and a judgment of the Supreme Court provides the rule to be
followed . . . until the Supreme Court sees fit to reexamine it."106
After Dawn was placed in emergency foster care, the Tribe early on
provided Elise's name to OCS as a potential placement option in its CINA Rule 8(c)(7)
disclosures.107 Elise discussed her initial interest in being a placement with OCS, but she
104 Id . at 51.
105 Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995) (citing In re F.P. , 843
P.2d 1214, 1215 n.1 (Alaska 1992)).
106 McCaffery v. Green , 931 P.2d 407, 415 (Alaska 1997) (Rabinowitz, J.,
dissenting) (quoting 1B J
AMES W. MOORE ET AL ., MOORE 'S FEDERAL PRACTICE
§ 0.402[1], at 1-10 (2d ed.1996)) (internal quotation marks omitted).
107 Tununak I, 303 P.3d 431, 433 (Alaska 2013).
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----------------------- Page 23-----------------------
was ruled out at that time because an adult son living with her had a barrier-crime.108
Dawn was placed with non-Native foster parents in Anchorage so that she could be
closer to her mother while Jenn completed treatment, and the parties stipulated that there
was good cause to deviate from ICWA's placement preferences during this period while
109
In August 2009 Elise contacted OCS
Jenn worked toward reunification with Dawn.
to report that her son had moved out; she confirmed that she still sought placement, but
in December 2009 a representative from the Association of Village Council Presidents
visited Elise's home in Tununak on OCS's behalf and noted potential hazards in the
110 Elise assured OCS
home that needed to be addressed before placement could occur.
111
she would remedy these issues. During this period Jenn was working toward
112 and Elise understandably wished to support her daughter in
reunification with Dawn,
that endeavor.
The critical piece, however, is Elise's failure to formally assert her intent
to adopt Dawn as OCS moved toward terminating Jenn's parental rights. The superior
court denied OCS's first petition to terminate parental rights in November 2010, and a
second petition was filed in April 2011 that ultimately resulted in termination in
September 2011. At a status conference in February 2011 the superior court advised
Elise that placement with Jenn was not a viable option due to Jenn's continued mental
health and drug issues. And when the Smiths filed a formal petition to adopt Dawn on
November 3, 2011, Elise did not file a competing adoption petition or any other formal
108 Id . at 433-34.
109 Id . at 434.
110 Id .
111 Id .
112 Id .
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----------------------- Page 24-----------------------
113
request that might serve as a proxy for such a petition. In other words, knowing that
the Smiths had the only legally viable request for adoption before the court at that time,
Elise did not file a competing request to be considered an adoptive parent for Dawn prior
to the placement hearing.
Elise did appear at the November 14, 2011 placement hearing and testified
114 She also testified that she had filed a formal adoption
that she wanted to adopt Dawn.
petition herself in Bethel. From the record developed by the parties both in the superior
court and in this court, there is no indication that Elise filed an adoption petition or
otherwise filed any formal court document demonstrating her intent to adopt Dawn. In
its briefing to us the Tribe conceded that no court petition was filed. The superior court
found Elise's testimony on her desire to adopt "less than convincing," observing that
Elise also said that she wanted to adopt Dawn because the Tribe wanted her to and
pointing out that she had maintained almost no contact with Dawn and knew nothing of
Dawn's life in Anchorage. The superior court made this credibility determination and
our role as the reviewing court is not to reweigh the evidence on this point, but instead
to "review a trial court's decision in light of the evidence presented to that court."115
In Baby Girl , Biological Father displayed a much higher level of
involvement, but the Supreme Court nonetheless found his efforts insufficient.
Biological Father requested a stay of the adoption proceedings after learning of Adoptive
116
Couple's pending request and sought custody of Baby Girl. He participated in a trial
113 See id. at 435.
114 Id . at 435, 437-38.
115 Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 309 P.3d 850, 856 (Alaska 2013).
116 Baby Girl , 133 S. Ct. 2552, 2558-59 (2013).
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----------------------- Page 25-----------------------
117
in the South Carolina Family Court and was awarded custody, had that custody order
118
and participated in the appeal before
affirmed by the South Carolina Supreme Court,
the United States Supreme Court. Notwithstanding this active participation by
Biological Father at every level of the state and federal litigation, the Supreme Court still
found that "he did not seek to adopt Baby Girl; instead, he argued that his parental rights
119 In other words, because Biological Father
should not be terminated in the first place."
did not "formally [seek] to adopt" Baby Girl, the Supreme Court held that he could not
be an ICWA preferred placement - he was not an "alternative party" that triggered
§ 1915(a)'s adoptive preferences.120
Applying the Supreme Court's controlling precedent to the facts before us,
it is clear that this is also a case where "there simply is no 'preference' to apply [as] no
121
alternative party that is eligible to be preferred under § 1915(a) has come forward" to
adopt Dawn. Because the Smiths were the only family that, in the words of the Supreme
Court, "formally sought to adopt" Dawn, § 1915(a)'s "rebuttable adoption preferences
[do not] apply [because] no alternative party has formally sought to adopt [this] child."122
In short, we are bound by Baby Girl 's interpretation of this subsection of ICWA, and
cannot ignore the Supreme Court's clear, unqualified ruling on a matter of federal Indian
law.
117 Id . at 2559.
118 Id .
119 Id . at 2564 (emphasis in original).
120 Id . at 2565 ("Nor do § 1915(a)'s rebuttable adoption preferences apply
when no alternative party has formally sought to adopt the child.").
121 Id. at 2564.
122 Id . at 2565.
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----------------------- Page 26-----------------------
C. Alaska CINA Rule 8(c)(7) Disclosures Are Not Analogous To
Requiring An Individual To Formally Seek To Adopt A Child.
We are likewise not persuaded by the Tribe's argument that Elise's contact
information on the Tribe's CINA Rule 8(c)(7) disclosure in the underlying CINA case
amounts to a formal adoption request. Rule 8(c)(7) directs that a tribe shall "without
awaiting a discovery request, provide to other parties . . . names and contact information
for extended family of the child, a list of potential placements under . . . § 1915, and a
summary of any tribal services or tribal court actions involving the family." These initial
disclosures must be made within 45 days of the order granting intervention.123
A tribe's production of contact information for possible placements is
neither equivalent nor analogous to a formal adoption petition. Rule 8(c)(7) is a
discovery procedure; it requires disclosure of potential placement options for OCS to
consider. A Rule 8(c)(7) disclosure was filed by the Tribe; it does not in any way
represent a clear expression by Elise (or anyone else) of a formal intent to adopt the
child. An adoption petition, on the other hand, is the legally "formal" way for a person
to express a readiness and willingness to adopt a child. In Baby Girl , the Supreme Court
envisioned a bright-line test: in order to qualify for ICWA § 1915(a)'s adoptive
placement preference, one must first "formally seek" to adopt the child by filing a
124
If Biological Father did not meet this bright-line standard,
petition for adoption.
notwithstanding his significant involvement at every level of the Baby Girl case, the
Tribe's tender of Elise's contact information shortly after the Tribe's intervention in this
case cannot meet the standard of "formally seeking" to adopt.
123 CINA Rule 8(c)(7).
124 Baby Girl , 133 S. Ct. at 2564.
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----------------------- Page 27-----------------------
D. The Tribe's Policy Considerations
Finally, the Tribe argues that if we interpret Baby Girl to hold that ICWA's
placement preferences are inapplicable until an alternative Native adoptive family
member files a competing adoption petition, this decision will place a difficult burden
on Native families, which have the fewest legal and financial resources, and create a
dangerous incentive for OCS to place Native children in the first available home "except
in the rare case when a Native family files its own adoption petition." The dissent echoes
the Tribe's concerns, noting that "at least one state practice guide" does not read Baby
Girl to mean an adoption petition must be filed; rather, all the practice guide cautions is
that the adoptive candidate "formally" assert his or her intent to adopt the child and take
"proper steps" to convey these intentions to the court.125
But the dissent misses the point of the practice guide. The practice guide
concludes that "[f]or practitioners representing a parent of an Indian child who wants
assurances that his or her child will be placed with another family or tribal member if
adoption is needed, the lesson is clear: identify early on any family members, relatives,
or tribal members who are willing and desirous of custody and take proper steps to
126
formally convey their intentions to the court in this regard." As we have explained,
we read Baby Girl to mean that filing a petition for adoption is "formally" asserting an
intent to adopt using the "proper steps." And while we do not disregard the Tribe's
policy concerns, neither may we disregard the holding of the Supreme Court on this
matter of federal law.
Having said this, we urge tribes and OCS to enable and assist tribal
members to seek placement early in CINA and voluntary adoption cases, accompanied
125 See CHRISTINE P. COSTANTAKOS, JUVENILE COURT LAW & PRACTICE
§ 13:12 (2013).
126 Id . (emphasis added).
-27- 6954
----------------------- Page 28-----------------------
by a formal adoption petition once it appears that OCS's goal for the child is adoption.
The Alaska Court System, attorneys representing tribes in Alaska, the CINA bar, the
probate bar, and others will work to develop appropriate adoption forms and online
information and instructions to assist tribes and potential adoptive parents in navigating
this requirement.
We also stress that OCS remains bound to comply with § 1915(a)'s
adoptive placement preferences for "(1) a member of the child's extended family;
(2) other members of the Indian child's tribe; or (3) other Indian families." And our
decision in Tununak I directs that "OCS must prove by clear and convincing evidence
that there is good cause to deviate from ICWA § 1915(a)'s adoptive placement
127
preferences." Implicit in this holding is the understanding that before the court
entertains argument that there is good cause to deviate from § 1915(a)'s preferred
placements, it must searchingly inquire about the existence of, and OCS's efforts to
comply with achieving, suitable § 1915(a) preferred placements. Contrary to the
dissent's suggestion, today's decision has no bearing on OCS's duty to comply with the
express purpose of ICWA "to promote the stability and security of Indian tribes and
128
families." We anticipate that our decisions in Tununak I and today will highlight the
importance of OCS identifying early in a CINA case all potential preferred adoptive
placements, and the importance of a person claiming preferred placement filing a petition
for adoption, in order to effectuate Congress's intent "to protect the rights of the Indian
child as an Indian and the rights of the Indian community and tribe in retaining its
children in its society."129
127 Tununak I, 303 P.3d 431, 450 (Alaska 2013).
128 D.J. v. P.C. , 36 P.3d 663, 677 (Alaska 2001) (internal quotation marks
omitted) (citing 25 U.S.C. § 1902).
129 Tununak I, 303 P.3d at 441-42 (citing Miss. Band of Choctaw Indians v.
(continued...)
-28- 6954
----------------------- Page 29-----------------------
V. CONCLUSION
Because we are bound to follow the United State Supreme Court's decision
in Baby Girl , and because no one but the Smiths formally sought to adopt Dawn, we
AFFIRM the superior court's grant of the adoption and VACATE Tununak I's prior
order for a renewed good cause hearing in the underlying placement matter. The
remainder of our opinion in Tununak I is unaffected by our decision today.
129(...continued)
Holyfield , 490 U.S. 30, 37 (1989)).
Additionally, as the dissent acknowledges, § 1915(e) requires OCS to
document its "efforts to comply with the order of preference specified in [§ 1915(a)]"
when such a placement is made following a properly filed petition. We expect that the
superior court will carefully and actively scrutinize OCS's efforts in identifying potential
adoptive placements and complying with its obligations under § 1915(a) and our case
law.
-29- 6954
----------------------- Page 30-----------------------
WINFREE, Justice, dissenting.
I respectfully disagree with today's decision. In my view the court
overstates the United States Supreme Court's holding in Adoptive Couple v. Baby Girl
1
(Baby Girl) and understates the nature of the underlying adoptive placement proceeding
in this case, discussed at some length in Native Village of Tununak v. State, Department
of Health & Social Services, Office of Children's Services (Tununak I).2
Baby Girl arose from a state court private adoption proceeding where:
(1) the Indian father abandoned the child before birth; (2) the non-Indian mother found
an appropriate couple willing to adopt the child; and (3) the state's statutes provided that
under these circumstances the father's parental rights could be terminated and the
3
But the father contested the termination of his parental rights and
adoption completed.
the adoption, arguing that because the child was an Indian child under the Indian Child
4
Welfare Act (ICWA), he was entitled to ICWA's protections against the termination of
his parental rights.5
Because the case involved only the termination of the father's parental
rights, the focus of the Supreme Court's decision was on ICWA §§ 1912(d) and (f),
neither of which is at issue in this case. The Court first addressed § 1912(f), noting that
it
provides that "[n]o termination of parental rights may be
ordered in such proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt, . . . that
1 133 S. Ct. 2552 (2013).
2 303 P.3d 431 (Alaska 2013).
3 133 S. Ct. at 2558-59; Adoptive Couple v. Baby Girl (Adoptive Couple ),
731 S.E.2d 550, 553-56, 561 (S.C. 2012), rev'd, 133 S. Ct. 2552.
4 25 U.S.C. §§ 1901-1963 (2012).
5 Baby Girl , 133 S. Ct. at 2559; Adoptive Couple , 731 S.E.2d at 555-56.
-30- 6954
----------------------- Page 31-----------------------
the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
[6]
damage to the child."
The Court held that § 1912(f) was inapplicable because the father never had legal or
7
physical custody of the child, and noted that ICWA's protections were not applicable:
"In sum, when, as here, the adoption of an Indian child is voluntarily and lawfully
initiated by a non-Indian parent with sole custodial rights, the ICWA's primary goal of
preventing the unwarranted removal of Indian children and the dissolution of Indian
families is not implicated."8
The Court next addressed § 1912(d), noting it "provides that '[a]ny party'
seeking to terminate parental rights to an Indian child under state law 'shall satisfy the
court that active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that these efforts have
9
proved unsuccessful.' " The Court held that §1912(d) was inapplicable because the
father had abandoned the child and there was no family unit to protect:
[W]e hold that § 1912(d) applies only in cases where an
Indian family's breakup would be precipitated by the
termination of the parent's rights. The term breakup refers in
this context to the discontinuance of a relationship, or an
ending as an effective entity. But when an Indian parent
abandons an Indian child prior to birth and that child has
never been in the Indian parent's legal or physical custody,
there is no relationship that would be discontinued - and no
effective entity that would be ended - by the termination of
the Indian parent's rights. In such a situation, the breakup of
6 Baby Girl , 133 S. Ct. at 2560 (alteration and emphasis in original).
7 Id. at 2562.
8 Id. at 2561.
9 Id. at 2562 (alteration and emphasis in original).
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----------------------- Page 32-----------------------
the Indian family has long since occurred, and § 1912(d) is
[10]
inapplicable.
The Court then addressed the state court's dicta - that even if the father's
parental rights were properly terminated, § 1915(a)'s adoptive placement preferences still
would apply - with its own dicta:11
In the decision below, the [state court] suggested that
if it had terminated Biological Father's rights, then
§ 1915(a)'s preferences for the adoptive placement of an
Indian child would have been applicable. . . .
Section 1915(a) provides that "[i]n 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." [But] § 1915(a)'s preferences are
inapplicable in cases where no alternative party has formally
sought to adopt the child. This is because there simply is no
"preference" to apply if no alternative party that is eligible to
[12]
be preferred under § 1915(a) has come forward.
The Court noted that the father had been contesting the termination of his parental rights
rather than seeking to adopt the child, that the paternal grandparents had not sought
custody of the child, and that the tribe had not presented any tribal member seeking to
13
adopt the child. Thus, no one with a § 1915(a) preference had "come forward" to adopt
the child.14
10 Id. (alterations, citations, and internal quotation marks omitted).
11 See id. at 2557 (stating §§ 1912(f) and (d) rulings were holdings, but stating
§ 1915(a) discussion was clarification to state court).
12 Id. at 2564 (citation omitted).
13 Id.
14 Id.
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From this, today the court interprets the Supreme Court as requiring that
15
"with respect to adoptive placements for an Indian child under state law," a formal state
court adoption petition, or a formal "proxy," must be filed before a person will be
16
But in my view:
considered for adoptive placement preference under § 1915(a).
(1) the Supreme Court imposed no such requirement, which would impliedly preempt
17
state adoption procedures; (2) as this case amply demonstrates, such a requirement
elevates form over substance; and (3) such a requirement in the context of this case flies
in the face of ICWA's express purpose.
15 Id. at 2558 (emphasis added).
16 It is undisputed that in this case the grandmother did not file a state court
adoption petition. The court notes the grandmother's testimony that she had petitioned
for placement and adoption, and then notes there is no such petition in the state court.
But the grandmother was not asked whether she was referring to paperwork filed in state
court or tribal court, or even whether it was paperwork given to the Office of Children's
Services. When the grandmother testified during the adoption placement hearing, the
adoption petition question was a side-issue directed to whether she truly wanted to adopt.
Because the record for this appeal was created well before a formal adoption petition
requirement became an issue, the record before us does not reveal to what the
grandmother was referring in her testimony; it may be the "proxy" for a state court
adoption petition that the court says is missing in this case.
17
Cf. In re Brandon M. , 63 Cal. Rptr. 2d 671, 677-78 (Cal. App. 1997)
("Congress clearly intended that [ICWA] exist side-by-side with the child custody laws
of the 50 states and necessarily understood that the courts of those states would and
should attempt to harmonize, not presume conflicts between, the two."); In re Adoption
of A.B., 245 P.3d 711, 719 (Utah 2010) ("So long as [ICWA's] core protections are
honored and the intent of ICWA is preserved, states may fashion the underlying
procedural framework.").
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----------------------- Page 34-----------------------
18
The Supreme Court made no holding about § 1915(a), but observed that
§ 1915(a) does not apply when no eligible person "has formally sought to adopt the
child . . . because there simply is no 'preference' to apply if no alternative party that is
19
eligible to be preferred under § 1915(a) has come forward." The Court's initial
overview of its decision stated it was clarifying that § 1915(a) preferences are
inapplicable if no eligible candidates "have sought to adopt the child," without using the
20
word "formally." The Court did not hold that whether an eligible candidate has come
forward is a matter of federal law. And it certainly did not hold as a matter of federal law
that § 1915(a) can apply only when an eligible person has filed an adoption petition in
21
state court.
18 The court today asserts that I am mistaken on this point, concluding that the
Supreme Court's decision about § 1915(a) constitutes a "holding." I prefer to rely on the
Supreme Court's own statements about its decision:
[W]e hold that 25 U.S.C. § 1912(f) . . . does not apply when,
as here, the relevant parent never had custody of the child.
We further hold that § 1912(d) . . . is inapplicable when, as
here, the parent abandoned the Indian child before birth and
never had custody of the child. Finally, we clarify that
§ 1915(a) . . . does not bar a non-Indian family . . . from
adopting an Indian child when no other eligible candidates
have sought to adopt the child.
Baby Girl , 133 S. Ct. at 2557 (emphasis added). I might agree with the court's
conclusion had Baby Girl actually involved the application of § 1915(a)'s adoption
placement preferences, even in part. But it did not - the questions actually presented
and decided were whether §§ 1915(d) and (f) applied to the statutory parental rights
termination in the state court. I do not reject the notion that clarification of a holding can
itself be a holding; that is not the case here.
19 Id. at 2564.
20 Id. at 2557.
21 Cf. id.
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----------------------- Page 35-----------------------
Yet today the court asserts that state courts are constrained by the Supreme
Court's decision and now can apply § 1915(a) preferences only when competing state
court adoption petitions exist. It is not at all self-evident that this is what the Supreme
22
Court meant, and it is even less self-evident that the Supreme Court impliedly created
a monolithic federal rule trumping state court adoption procedures. The Court's
clarification certainly leaves room for states to determine under their own adoption
procedures when an eligible candidate has come forward such that the preferences should
23
be applied. Baby Girl does not compel today's result; today's result comes directly
22 At least one state practice guide does not read Baby Girl to mean an
adoption petition must be filed. In Nebraska, the Juvenile Court Law and Practice guide
cautions practitioners that Baby Girl "eliminates the need for a party to demonstrate good
cause to depart from the ICWA adoptive-placement preferences, where no one described
in those statutorily-designated preferences has stepped forward to formally assert an
intent to acquire custody of, or to adopt the child." C
HRISTINE P. COSTANTAKOS,
J
UVENILE COURT LAW & PRACTICE § 13:12 (2013) (emphasis added). The practice guide
merely directs that, "[f]or practitioners representing a parent of an Indian child who
wants assurance that his or her child will be placed with another family or tribal member
if adoption is needed, the lesson is clear: identify early on any family members,
relatives, or tribal members who are willing and desirous of custody and take proper
steps to formally convey their intentions to the court in this regard." Id. (emphasis
added). This approach makes abundant sense to me.
23 Cf. Baby Girl, 133 S. Ct. at 2558 (noting that the § 1915(a) preferences
apply "with respect to adoptive placements for an Indian child under state law"
(emphasis added)); In re Adoption of A.B. , 245 P.3d 711, 719 (Utah 2010) (noting "states
may fashion the underlying procedural framework" for applying ICWA's substantive
standards); State ex rel. C.D., 200 P.3d 194, 209 (Utah App. 2008) (noting "there are no
express statutory provisions declaring [the procedure for] compl[ying] with the ICWA's
placement preferences").
In fact, on remand of Baby Girl , the state court applied its own adoption law
in determining whether newly filed competing adoption petitions in the case were
eligible for § 1915(a) preferences; the court held the petitions were ineligible because the
"litigation must have finality, and it is the role of this court to ensure 'the sanctity of the
adoption process' under state law is 'jealously guarded.' " Adoptive Couple v. Baby Girl
(continued...)
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----------------------- Page 36-----------------------
from this court and imposes a new state-law barrier to § 1915(a)'s adoption placement
preferences.24
It is self-evident that if no one eligible and suitable for a § 1915(a) adoptive
placement preference comes forward to adopt an Indian child, there can be no preferred
25
This is not a particularly novel understanding; it was precisely the
adoptive placement.
23(...continued)
(Adoptive Couple II ), 746 S.E.2d 51, 53 (S.C. 2013) (emphasis added) (quoting Gardner
v. Baby Edward , 342 S.E.2d 601, 603 (S.C. 1986)).
24 Cf. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36-37 (1989)
(stating placement preferences are "[t]he most important substantive requirement
imposed on state courts"); Josh L. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 276 P.3d 457, 465 (Alaska 2012) ("We recognize that the placement
preferences under section 1915 are critical to ICWA's goal of promoting the stability and
security of Indian tribes and families."); In re Adoption of Sara J. , 123 P.3d 1017, 1024
(Alaska 2005) (stating § 1915(a) established federal policy that " 'where possible, an
Indian child should remain in the Indian community' " (quoting H.R. Rep. No. 95-1386,
at 23, reprinted in 1978 U.S.C.C.A.N. 7530, 7546)).
25 As we explained in In re Adoption of Sara J. :
[A]lthough it is correct that the word "preference" generally
connotes a choice between two options, we read ICWA's
structure and purpose to preclude choosing between preferred
and non-preferred placements if the preferred placement is
"suitable," as measured by the prevailing social and cultural
standards of the Indian community. The existence of a
suitable preferred placement precludes any consideration of
a non-preferred placement unless good cause exists, for
example, because another preference has been expressed by
the child or the child's biological parents, or because the
child has special needs that cannot be met by an otherwise-
suitable preferred placement.
123 P.3d at 1028 (emphasis in original) (citation omitted); see also Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594 (Nov. 26, 1979)
(stating one good cause factor for deviation from § 1915(a) is "[t]he unavailability of
(continued...)
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----------------------- Page 37-----------------------
factual situation in Baby Girl , and the Supreme Court's language should not be read to
suggest anything more. We described the eligibility-suitability determination process in
Tununak I:
[B]efore 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 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. 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. In
other words, the court must determine not only that a
placement is preferred, but also that the placement would be
[26]
a suitable caretaker for the child.
But after today's decision, it does not appear that a trial court has to make
any inquiry about preferential adoptive placement unless an eligible person actually files
27
an adoption petition. And now, when multiple relatives in a village might consider
25(...continued)
suitable families for placement after a diligent search has been completed for families
meeting the preference criteria").
26 303 P.3d 431, 450 (Alaska 2013) (citations omitted).
27 Cf. CINA Rule 10.1(b) (requiring continuing court inquiry regarding
compliance with § 1915(b)'s placement preferences prior to termination of parental
rights). The CINA rules do not explicitly require such an inquiry for an adoptive
placement.
One can only wonder about the impact of today's decision on the State's
duties regarding § 1915(a)'s placement preferences. We have not had occasion to
consider the exact contours of the State's duty to search for eligible preferred adoptive
placements and assist such parties in coming forward. The Bureau of Indian Affairs
Guidelines assume that a "diligent search" will be made for a preferred adoptive
(continued...)
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----------------------- Page 38-----------------------
adopting a child after a termination of parental rights, they cannot simply participate in
adoptive placement proceedings in the child in need of aid case to determine who is
eligible and suitable, but rather must file separate and competing formal adoption
petitions.
The tribe makes a persuasive argument that requiring a state court adoption
petition to trigger § 1915(a)'s adoptive placement preferences will have disastrous results
for Alaska's rural Natives. In many villages the court system has no presence and legal
representation is nonexistent. Village relatives who might seek to adopt have little way
of knowing when a child has been freed for adoption in an urban child in need of aid
court proceeding, or whether a non-Indian foster family has filed an adoption petition.
In my view § 1915(a) placement preferences should, at the very least, apply when a
person seeks adoptive placement in a child in need of aid proceeding. I see no good
reason for requiring a state court adoption petition to trigger ICWA's preferences, and
if seeking adoptive placement in a child in need of aid proceeding is not a "proxy" to
such a petition, what is?
27(...continued)
placement and that an unsuccessful search will be good cause to deviate from § 1915(a)'s
mandated preference list. Guidelines for State Courts, Indian Child Custody
Proceedings, 44 Fed. Reg. at 67,594. And § 1915(e) requires the State to document its
"efforts to comply with the order of preference specified in [§ 1915]." I have previously
expressed the view that the State has an affirmative duty to effectuate placement
preferences when possible. Josh L. , 276 P.3d at 472 (Winfree, J., dissenting). Today's
decision presents interesting questions about the State's duties. Does the State have a
duty to seek out and advise those eligible for a § 1915(a) preference that a state court
adoption petition must be filed before they will be considered? And what if, as is the
case here, the State simply does not want an eligible person under § 1915(a) to have an
adoptive placement preference? Can the State stand behind its view that the grandmother
was not "suitable" and it therefore had no duty to assist her with an adoption petition?
Or did the State breach its duty to the grandmother and the Tribe? The Tribe's concern
that requiring an adoption petition for consideration under § 1915(a) will lead to a lesser
effort by the State to effectuate § 1915(a) is not unfounded.
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----------------------- Page 39-----------------------
In Tununak I we expressly stated that the adoptive placement proceeding
in this case was to determine whether Dawn would be adopted by her grandmother in the
village or by her foster parents in Anchorage: "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
28
Our decision's very substance was how to apply Alaska
placement for Dawn."
29
Adoption Rule 11, which we said applied to the proceeding. And just six months later
we expressed that "it was clear in [Tununak I] that the issue being contested at the
30
placement review hearing was the child's placement for adoption." But now the court
says the grandmother's effort to obtain preferential adoptive placement - in what we
said was an adoption proceeding - was not an effort to "formally" adopt Dawn because
31
she did not file formal adoption paperwork. This adherence to form over substance,
especially in an ICWA context, is untenable.
28 303 P.3d at 443.
29 Id . at 433, 443-44.
30 Irma E. v. State, Dep't of Health & Soc. Servs. , 312 P.3d 850, 855 (Alaska
2013) (citing Tununak I, 303 P.3d at 439-40) (noting that in C.L. v. P.C.S., 17 P.3d 769,
772 (Alaska 2001), foster care placement changed into adoptive placement when
superior court terminated parents' parental rights and children's foster parents filed
petitions to adopt the children).
31 The court suggests the grandmother's participation in the adoptive
placement proceeding did not rise to the level of "formally [seeking] to adopt" because,
comparing her efforts to those of the biological father in Baby Girl , the father's "much
higher level of involvement" in the adoption proceedings was still insufficient to
constitute a formal adoption effort. This comparison is inapt: the Supreme Court
concluded the biological father "did not seek to adopt Baby Girl" because he instead
sought to prevent termination of his parental rights, not because his efforts were not
sufficiently formal. Baby Girl , 133 S. Ct. 2552, 2559 (2013).
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----------------------- Page 40-----------------------
Unlike in Baby Girl , where the Supreme Court took great pains showing
otherwise when analyzing the two ICWA termination provisions at issue, ICWA's
purpose is squarely implicated in this case. As the court notes, Dawn's biological
parents are Alaska Natives. Rather than a termination of parental rights through a private
adoption arranged by a non-Indian parent after an Indian parent abandoned the child, this
was a state-sponsored parental rights termination and a state-sponsored adoptive
32
And here the tribe and maternal grandmother
placement clearly subject to ICWA.
actively sought adoptive placement with the grandmother so the child could live in the
33
village with tribal members. This case compels the application of § 1915(a)'s adoptive
placement preferences, and if it does not, it is clear that ICWA is not working the way
it should in Alaska.34
This case should be remanded to the superior court for a renewed adoption
35
placement hearing, as we contemplated in Tununak I. If Dawn's grandmother is a
suitable adoptive placement, then, in light of § 1915(a) and absent good cause to deviate
32 Like Baby Girl , this case "concerns a 'child custody proceeding,' which
ICWA defines to include proceedings that involve 'termination of parental rights' and
'adoptive placement.' " Id. at 2557 n.1 (citing 25 U.S.C. § 1903(1)).
33
Cf. id at 2565 (stating that ICWA "was enacted to help preserve the cultural
identity and heritage of Indian tribes"); see also In re Adoption of Sara J., 123 P.3d
1017, 1024 (Alaska 2005) (stating § 1915(a) established federal policy that " 'where
possible, an Indian child should remain in the Indian community' " (quoting H.R. Rep.
No. 95-1386, at 23, reprinted in 1978 U.S.C.C.A.N. 7530, 7546)).
34
Time and time again we see CINA cases involving village children placed
in urban foster homes while their parents work to meet the conditions for regaining
custody; if the parents ultimately fail, the children rarely return to the village but rather
are adopted, often by the foster parents, and remain in urban centers. This case is yet
another example.
35 303 P.3d 431, 453 (Alaska 2013).
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----------------------- Page 41-----------------------
from its preferences,36 the current adoption should be vacated and Dawn should be
placed with her grandmother for eventual tribal or state court adoption.
I dissent.
36 Cf. id. at 451-53 (discussing factors relevant to good cause to deviate from
§ 1915(a)'s placement preferences).
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