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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ebert v. Bruce L. (12/26/2014) sp-6976

Ebert v. Bruce L. (12/26/2014) sp-6976

         Notice:   This opinion is subject to correction before publication in the P       ACIFIC REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

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WILLIAM EBERT, HOLLY                                   )  

EBERT, and CONNIE J.,                                  )         Supreme Court Nos. S-15130/15219  

                                                       )         (Consolidated)  

                            Appellants,                )  

                                                       )         Superior Court Nos. 3PA-07-02189 CI  

         v.                                            )                                     3PA-08-00145 PR  


BRUCE L.,                                              )         O P I N I O N  



                            Appellee.                  )         No. 6976 - December 26, 2014  


                  Appeal from the Superior Court of the State of Alaska, Third  

                   Judicial District, Palmer, Eric Smith, Judge.  

                  Appearances:    Christi  A.  Pavia,  Pavia  Law  Office  LLC,  

                  Anchorage, for Appellant Connie J.  Lisa B. Nelson, Law  

                   Office of Lisa B. Nelson, LLC, Anchorage, for Appellants  

                   William Ebert and Holly Ebert.  Ann L. DeArmond, Sterling  


                   & DeArmond P.C., Wasilla, for Appellee Bruce L.  

                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.   

                   BOLGER,  Justice.  


                  A married couple sought to adopt an Indian child over the objection of the  



biological father, who wished to maintain visitation rights.  The couple and the biological  


mother appeal the superior court’s denial of the adoption, claiming that the biological  

father’s consent to the adoption was unnecessary.  Under AS 25.23.050(a)(2)(B), the  

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consent of a noncustodial parent is not required for adoption if that parent unjustifiably     

fails to support the child.  But the superior court did not clearly err by concluding that   

the biological father had justifiable cause for his failure to support the child. We affirm.   



                       Bruce  L.  and  Connie  J.  began  a  relationship  in  August  2006.     Their  

relationship was somewhat tumultuous, with at least one period of separation during the  


fall of 2006. In November Connie told Bruce that she was pregnant and was considering  


giving up the child for adoption.  Bruce objected to the adoption.  After a final attempt  


to repair their relationship, Bruce and Connie separated permanently in January 2007.  

                       Sometime in early 2007, Connie approached Holly and William Ebert, a  


married couple she knew from church, about adopting her child.   Connie wanted the  


Eberts to adopt her child because she thought they would be loving parents and because  

they shared her religious values.  The Eberts agreed to the adoption.  

                       In June 2007, before the child was born, the Eberts met with Bruce “to  


discuss  a  consent  to  adopt.”    Under  AS  25.23.040(a)(2),  a  biological  father  must  

typically grant written consent before an adoption can proceed.  However, there are a  


number of exceptions to this consent requirement, including AS 25.23.050(a)(2), which  


allows an adoption to proceed without a noncustodial parent’s consent in cases where the  


parent has failed to “communicate meaningfully with the child” or “provide for the care  


and support of the child” for at least one year.  Bruce refused to consent and announced  


his intent to take custody of the child when he returned from working on a commercial  


fishing boat in August.  He also suggested two other men might be the child’s father,  


though he later testified that he made this statement only to “put a hitch in the adoption.”  

           1           Pseudonyms are used for all persons involved.  

                                                                       -2-                                                                    6976  

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                    Timothy  was  born  in  July  2007.    The  Eberts  took  custody  of  him  


immediately and filed an adoption petition in late August 2007.  In September Bruce,  


acting pro se, filed a document in the adoption proceeding, asserting that he was the  


child’s biological father and asking the court for “full physical and legal custody.”  The  


court denied Bruce’s motion for custody without prejudice but made Bruce a party to the  


adoption proceeding.  

                    Bruce, then represented by appointed counsel, filed a motion to establish  

paternity  in  December  2007.    Soon  thereafter  the  Eberts  voluntarily  dismissed  their  

adoption petition.  As a result of this dismissal, Bruce lost his right to appointed counsel.  


When later asked why they decided to dismiss the petition, William Ebert explained:  

                    [Bruce] had yet to make an individual effort on his own to  

                    commence any sort of proceeding.  And knowing the kind of  

                    person he is, once again, we decided that we wanted to make  

                    it his initiative instead of ours that was [moving forward the  

                    paternity establishment] process.  

                    In late December 2007, Bruce, again acting pro se, filed a complaint for  


custody of Timothy.  In July 2008 Bruce moved to set the case for trial.  A few days  

later, the Eberts filed a second adoption petition and intervened in Bruce’s custody case.  

The superior court ordered paternity testing, and Bruce obtained a positive result.  The  


court appointed counsel for Bruce and consolidated the adoption and custody cases.  

                    The superior court ordered an interim custody arrangement after a hearing  


in December 2008.  The court granted physical custody to the Eberts and semiweekly  


visitation to Bruce.  The court also ordered Bruce to pay $50 per month in child support,  


retroactive to August 1, 2007; over the next four months, Bruce paid a total of $200 in  


support. It is undisputed, however, that Bruce paid no child support before being ordered  


to do so at the December 2008 hearing.  He later testified that he did not realize he had  


a child support obligation and that the Eberts never applied to the Child Support Services  


                                                              -3-                                                        6976

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Division for child support.  Bruce claimed he was under the impression that the Eberts  

were wealthy and did not need his financial assistance.  


                    In May 2009 the superior court held a trial on the adoption petition and the  



custody dispute.  In post-trial briefing, Bruce argued that the Indian Child Welfare Act 


(ICWA) compelled the court to grant Bruce custody of Timothy, an Indian child, and  

prevented  the  Eberts  from  adopting  Timothy  without  Bruce’s  consent.    The  Eberts  


argued that Bruce could not invoke ICWA to prevent the adoption because he was not  

a “parent” for purposes of the statute until he established paternity on October 10, 2008.  


                                                                                                        does not apply in  

They also argued that ICWA § 1912(d)’s “active efforts” provision 

a  private  adoption,  particularly  when  the  parent  seeking  to  invoke  ICWA  has  no  


meaningful connection to any tribe.  And they maintained that, even if ICWA applied,  


the supervised visitation provided to Bruce was adequate to  fulfill the active efforts  


requirement.  Finally, they argued that Bruce’s consent to the adoption was not required  

under state law because Bruce could not show that his failure to communicate with or  


support  Timothy  during  the  child’s  first  year  of  life  was  justifiable.     Connie,  who  

continued to support the adoption, made arguments similar to the Eberts’.  

          2         25 U.S.C. §§ 1901-63 (2012).  

          3         25 U.S.C. § 1912(d) (“Any party seeking to effect a foster care placement  

of, or termination of 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  


proved unsuccessful.”).  



                    See AS 25.23.050(a)(2) (“Consent to adoption is not required of . . . (2) a  


parent of a child in the custody of another, if the parent for a period of at least one year  

has failed significantly without justifiable cause, including but not limited to indigency,  

(A) to communicate meaningfully with the child, or (B) to provide for the care and  

support of the child as required by law or judicial decree[.]”).  

                                                               -4-                                                         6976

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                    Following the trial, the superior court granted the adoption petition.  The  


court concluded that Timothy was “not an ‘Indian Child’ within the meaning of the  


Indian Child Welfare Act” and that ICWA therefore did not apply to the Eberts’ adoption  


petition.    As  to  AS  25.23.050(a)(2),  the  court  concluded  that  “there  is  clear  and  


convincing evidence of the [Eberts’] physical custody of [Timothy] for more than a year  

without  support  or  communication  by  [Bruce]”  and  that  “[Bruce]  has  not  produced  

‘justifiable cause’ for the failure to communicate with or support the child.”  


                                                                                                        In Bruce L. v. W.E.  

                    Bruce appealed the 2009 adoption decree to this court. 

we concluded that “[i]t was an abuse of discretion to conclude Timothy is not an Indian  


child without giving the parties notice that the trial court considered the issue in dispute”6  


and that “Bruce’s failure to establish paternity before the completion of the one-year  


period of nonsupport and noncommunication did not render ICWA § 1912(d) and (f)  


                        We also held that, under state law, “the Eberts did not meet their burden  


of  proving  by  clear  and  convincing  evidence  that  Bruce  unjustifiably  failed  to  


communicate  meaningfully  with  Timothy  for  one  year.”     And  “[b]ecause  Bruce  


produced some evidence of justifiable cause” for his failure to support Timothy, we held  


that the Eberts should have been required to rebut this showing “by clear and convincing  

          5         See Bruce L. v. W.E., 247 P.3d 966 (Alaska 2011).  

          6         Id. at 974.  

          7         Id. at 977.  25 U.S.C. § 1912(f) provides:  “No termination of parental   

rights may be ordered in such proceeding in the absence of a determination, supported  

by  evidence  beyond  a  reasonable  doubt,  including  testimony  of  qualified  expert  


witnesses, 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.”  

          8         Id. at 981.  

                                                               -5-                                                         6976

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evidence.”   We therefore “vacate[d] the termination of [Bruce’s] parental rights and the                              


adoption decree and remand[ed] for further proceedings.”                                          We required the superior  


court to reconsider three issues:  whether Timothy qualified as an Indian child under  

ICWA, whether the Eberts had satisfied ICWA’s requirements for the termination of  



Bruce’s parental rights, and whether Bruce’s failure to provide support was justified. 


                      On remand, the superior court ordered that the earlier interim custody order  

would remain undisturbed, keeping Timothy in the Eberts’ physical and legal custody.  

Bruce’s supervised visitation continued, subject to certain restrictions.  


                     Another trial was held beginning in June 2012 and extending to December.  


Connie and the Eberts argued that Bruce had no justifiable cause for his failure to pay  

support  and  therefore  could  not  object  to  the  adoption  under  AS  25.23.040.    As  to  



ICWA,           they  argued  that  they  had  met  §  1912(d)’s  active  efforts  requirement  by  


providing remedial services to Bruce. And they argued that their expert witness’s report  


and testimony provided sufficient proof under § 1912(f) that placing Timothy with Bruce  

would cause the child serious emotional harm.  


                     Bruce responded that Connie and the Eberts had not shown that they made  


“active efforts . . . to prevent the break up of the Indian family and that those efforts were  

unsuccessful,” “established beyond a reasonable doubt that the issuance of an order  

granting [Bruce] appropriate visitation with [Timothy] would cause serious physical or  

emotional damage to [Timothy],” or established “by clear and convincing evidence that  

           9         Id. (internal quotation marks omitted).

       Id. at 969.

           11        Id.

       At the beginning of the second trial, the parties stipulated that Timothy was  

an Indian child for purposes of ICWA.  

                                                                   -6-                                                             6976

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[Bruce] was without justifiable cause in failing to pay child support between July of 2007        

and December of 2008.”  


                    After  trial,  the  superior  court  denied  the  adoption  petition.    The  court  


dismissed the argument that ICWA § 1912(d) did not apply until Bruce proved he was  

                                                                                                                13  And the  

Timothy’s father, noting our rejection of a similar argument in the first appeal. 

court found that, although the Eberts had made active efforts to provide remedial services  


to Bruce, they had not “demonstrate[d] that those efforts proved to be unsuccessful”:14  

                    [W]hile  there  certainly  were  ample  reasons  for  concern  

                    regarding [Bruce’s] ability to be a parent during the time of  


                    the first adoption trial, [Bruce] has taken the steps necessary  


                    to  resolve  the  many  issues  he  faced.    Put  differently,  the  

                    remedial measures did succeed, at least enough that there is  

                    no  present  evidence  that  [Bruce]  cannot  be  an  adequate  

                    parent for [Timothy].  

Therefore,  the  court  concluded,  the  Eberts  had  not  met  the  requirements  of  ICWA  

§ 1912(d).  

                    As to ICWA § 1912(f), the court found that Connie and the Eberts had not  


shown, beyond a reasonable doubt, that Timothy would suffer  serious emotional or  

physical harm if “[Bruce] is allowed to retain some custodial rights to [Timothy].”  The  


court noted that although an expert witness had concluded “that denying the adoption  

and  enabling [Bruce] to participate as [Timothy’s] named father was likely to cause  


[Timothy] serious emotional harm[,] . . . when the court asked her if she could conclude  


beyond a reasonable doubt that [Timothy] would suffer serious emotional harm, she  


answered ‘no.’ ”  The court interpreted the witness’s assessment “as an indication that  

          13        See Bruce L., 247 P.3d at 978-79.  

          14        See 25 U.S.C. § 1912(d) (2012).  

                                                             -7­                                                           6976  

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it  is  possible  to  structure  visitation  and  the  process  by  which  [Timothy]  learns  that  

[Bruce] is his father in a manner that will avoid serious emotional harm.”  

                   Finally,      the     superior       court      concluded         that    ICWA         preempted  

AS 25.23.050(a)(2)(B).  Because of this preemption, the court reasoned, it could not  


“rely on AS 25.23.050(a)(2)(B) to authorize the adoption.”  The court nevertheless found  


that, if AS 25.23.050(a)(2)(B) did apply, Connie and the Eberts had not presented clear  

and convincing evidence that Bruce’s failure to support Timothy lacked justifiable cause.  

                   The superior court issued an interim custody order, finding it in Timothy’s  


best interests to grant the Eberts primary physical and sole legal custody. Bruce was  


permitted  supervised  visitation,  and  the  Eberts  were  ordered  “to  hire  a  licensed  


professional  counselor  .  .  .  to  arrange  for  less  restrictive  visitation.”  The  court  also  

ordered Bruce to pay $50 per month in child support.  

                   Connie and the Eberts appeal.  



                   “We review questions of law de novo, adopting the rule of law that is most  

persuasive in light of precedent, reason, and policy.”15  


                   A court’s determination as to whether “a parent’s failure to communicate  

or support a child was without justifiable cause is a finding of fact that we review for  


clear error.”        “Factual findings are clearly erroneous if a review of the entire record in  

         15        Jones v. Bowie Indus., Inc. , 282 P.3d 316, 325 (Alaska 2012) (citation  

omitted) (internal quotation marks omitted).  

         16        Bruce L. , 247 P.3d at 973 (citation omitted).  

                                                           -8-                                                       6976  

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the  light  most  favorable  to  the  prevailing  party  leaves  us  with   a  definite  and  firm  

conviction that a mistake has been made.”17  



         A.        The       Indian         Child        Welfare           Act       Does        Not        Preempt  


                   AS 25.23.050(a)(2)(B).  

                   None       of    the    parties      argue       on     appeal      that     ICWA        preempts  


AS 25.23.050(a)(2)(B).  But the superior court concluded that it did, and that the court  


could not “rely on AS 25.23.050(a)(2)(B) to authorize the adoption.”  

                   The  superior  court  was  apparently  concerned  that   there  was  a  serious  

conflict between ICWA and the state adoption statute.  “Conflict preemption occurs  


when a state law and a federal law are in conflict, either because compliance with both  

state and federal law is impossible or because the state law stands as an obstacle to  

accomplishment and execution of the full purposes and objectives of Congress.”18  

                   We s   ee no such conflict here.  Alaska Statute 25.23.050(a)(2)(B) does not  

automatically permit an adoption when a  biological  parent unjustifiably fails to provide  

for the care and support  of  a child.  Instead, it provides an exception to AS 25.23.040’s  

requirement that a p        etition  to  adopt a m     inor m   ay  be g  ranted  only  if the parents consent.  

Even when AS   25.23.050(a)(2)(B) nullifies AS 25.23.040’s consent requirement, the  


adoption of an Indian child does not automatically go forward.                               Other state adoption  

requirements must still be met, and ICWA protections may remain available.  Alaska’s  

         17        Marcia V. v. State, Office of Children’s Servs.                 , 201 P.3d 496, 502 (Alaska  

2009) (citation omitted).  

         18       Allen v. State, Dep’t of Health & Soc. Servs., Div. of Pub. Assistance , 203  


P.3d 1155, 1162 (Alaska 2009) (internal quotation marks omitted).  

         19        See, e.g., AS 25.23.100 (setting forth the legal procedures that must occur  


before an adoption may proceed).  

                                                           -9-                                                    6976

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adoption  statutes  and  ICWA  offer  complementary  layers  of  protection  to  biological  

parents; there is no conflict between the state and federal statutes.20  

                  For these reasons, ICWA does not preempt AS 25.23.050(a)(2)(B).  

         B.       Bruce Is A Parent For Purposes Of AS 25.23.040 And .050.  

                  Although  the  superior  court  concluded  that  AS  25.23.050(a)(2)(B)  is  

preempted by ICWA and therefore could not provide a basis for a decision in this case,  


the  court  nevertheless  reached  the  merits  of  the  parties’  AS  25.23.040  and  .050  

arguments in order to “provid[e] a full record in the event of an appeal.”  

                   Connie and the Eberts argue that Bruce cannot rely on AS 25.23.040 to  


prevent the adoption because “Bruce failed to timely legitimate Timothy under State  


law” within the first year of the child’s life.  But we have held that a putative father may  

                                                                                                    21   If the father  


establish paternity “at any time before the entry of a decree of adoption.”  

establishes his paternity, then his consent is required unless it is excused by the other  

provisions of the adoption statute.22  

                  A father may establish paternity by proving the issue to the superior court.23  


Bruce filed positive paternity test results with the superior court in 2008.  The Eberts did  

not challenge the results and expressly argued that Bruce established his paternity when  


         20       Native Vill. of Tununak v. State, Dep’t of Health & Soc. Servs., Office of  

Children’s  Servs.,  334  P.3d  165,  180  n.17  (Alaska  2014)  (Winfree,  J.,  dissenting)  

(“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.” (quoting In re  

Brandon M., 54 Cal. App. 4th 1387, 63 Cal. Rptr. 2d 671, 677-78 (1997))).  

         21       In re Adoption of L.A.H. , 597 P.2d 513, 517 (Alaska 1979).  

         22       AS 25.23.040(a)(2).  

         23       AS 25.20.050(a)(4).  

                                                         -10-                                                   6976

----------------------- Page 11-----------------------


he filed them.  Therefore, by the time of the first trial on the Eberts’ adoption petition in  

May 2009, Bruce was a father who had “legitimated [Timothy] under the laws of the  



state.”      Thus Bruce’s consent was required unless the Eberts could establish that it was  

excused under the terms of the statute.25  

          C.	       The  Superior  Court  Did  Not  Clearly  Err  In  Finding  That  Bruce’s  

                    Failure To Support Timothy Was Justifiable.  

                    Connie and the Eberts contend that, even if Bruce is “the father of the  


minor” for the purposes of AS 25.23.040, he forfeited his right to object to the adoption  

by  unjustifiably  failing  to  support  Timothy  during  the  child’s  first  year  of  life.26  


                    Under AS 25.23.050(a)(2)(B), the consent of a noncustodial parent is not  

required  for  an  adoption  if  the  parent  “for  a  period  of  at  least  one  year  has  failed  


significantly without justifiable cause, including  but not limited to indigency, . . . to  


provide for the care and support of the child as required by law or judicial decree.”  “The  


long-established and continuing rule in Alaska is that absent the element of willfulness,  


a parent does not lose the right to consent under AS 25.23.050(a)(2).”                                         If a natural  


parent produces evidence that failure to support the child is justifiable, the burden shifts  

          24	       See AS 25.23.040(a)(2).  

          25	       See id.; AS 25.23.050.  

          26        Connie  and  the  Eberts  also  argue  that  Bruce  failed  “to  meaningfully  

communicate             with      Timothy”          during       the      child’s      first     year      of     life.    See  


AS 25.23.050(a)(2)(A).  They ask us to vacate Bruce L. ’s holding to the contrary.  But  


the law of the case doctrine “generally prohibits the reconsideration of issues which have  


been adjudicated in a previous appeal in the same case” unless “there exist exceptional  


circumstances presenting a clear error constituting a manifest injustice.”  See Beal v.  

Beal , 209 P.3d 1012, 1016-17 (Alaska 2009) (internal quotation marks omitted).  Connie  


and the Eberts provide no compelling reason to revisit the Bruce L. decision.  

          27        In re Adoption of J.M.F. , 881 P.2d 1116, 1118 (Alaska 1994).  

                                                             -11-	                                                       6976

----------------------- Page 12-----------------------

to the petitioner for adoption, who must then “show by clear and convincing evidence  


                                                                                                        Because we  

that the natural parent’s failure to support was without justifiable cause.” 

previously held that Bruce had produced some evidence of justifiable cause,29 Connie  

and the Eberts were required to rebut Bruce’s showing by clear and convincing evidence.  

After weighing the evidence, the superior court found that they had not carried their  

burden.  We review this finding for clear error only.  


                   The superior court provided several reasons for its finding.  First, although  

Bruce had some income, “it was minimal, and much was taken to support his other  


children.”  Second, “the [Eberts] neither needed nor asked for any support from [Bruce]”  

and  “[Bruce’s] testimony indicates that he would have been willing to pay something  


had the [Eberts] asked him to do so.”   Finally, Bruce “testified credibly” that he was  

unaware he had a legal obligation to pay support to the Eberts.  

                   Connie  and  the  Eberts  argue  that  Bruce’s  indigence  cannot  justify  his  

failure to pay child support because “[c]ircumstances resulting from the noncustodial  

parent’s  own  conduct  cannot  excuse  such  a  parent’s  significant  failure  to  provide  


support.”        They argue that Bruce’s failure to support Timothy was the result of life  


choices within his control.  For example, Connie and the Eberts assert that Bruce “was  


underemployed due to his reckless lifestyle,” and that his child support obligations arose  

because he chose to “sire[] four children under the age of five in about five years.”  

         28       Id.  

         29       Bruce L. v. W.E., 247 P.3d 966, 981 (Alaska 2011).  

         30       In re J.J.J. , 718 P.2d 948, 953 (Alaska 1986).  

                                                         -12­                                                       6976  

----------------------- Page 13-----------------------

                   But there was ample evidence of Bruce’s poor financial status, and Bruce’s  


                                                                               31  Although Bruce earned about  

life choices were only a partial cause of his indigence.  


$5,000  working  on  a  commercial  fishing  boat  during  the  summer  of  2007,  he  was  

unemployed between August 2007 and January 2008 and reported only $9,316 in income  

on his 2007 federal tax return.  In 2008 Bruce worked only temporary part-time jobs,  


earning between $15 and $25 per hour.  And in the summer of 2008, he took college  


classes, paid for with student loans and GI Bill benefits. These facts support the superior  


court’s finding that Bruce’s indigence contributed to his failure to support Timothy.  And  


Bruce’s indigence existed despite at least some efforts on  his part to find work and  


improve his prospects through education.  

                    Connie and the Eberts also argue that AS 25.23.040 does not apply because  

Bruce  failed  to  pay  “significant”  support.    But  whether  Bruce  provided  significant  

financial support was not at issue, as both the Bruce L. decision32 and the superior court’s  

order make clear.  Rather, the operative question was whether Bruce’s admitted lack of  


support was justifiable .  


                    The superior court did not clearly err in concluding that the Eberts did not  

prove, by clear and convincing evidence, that Bruce lacked justifiable cause for his  


failure to pay them child support.  Therefore, under AS 25.24.040, Bruce’s consent is  

required before the Eberts can adopt Timothy.33  

          31        Cf. David S. v. Jared H.          , 308 P.3d 862, 869-70 (Alaska 2013) (upholding  

finding  that  father’s  failure  to  communicate  was  unjustifiable  when  father  was  

incarcerated for majority of child’s life).  

          32       Bruce L. , 247 P.3d at 981.  

          33        Connie and the Eberts raise interesting questions about the superior court’s  


conclusion that they failed to meet the requirements for termination of parental rights  

under ICWA.  They contend that under Adoptive Couple v. Baby Girl , 133 S. Ct. 2552  


                                                            -13-                                                       6976

----------------------- Page 14-----------------------

          D.	       No Special Circumstances Justify Reviewing The Superior Court’s  

                    Interim Custody Order.  


                    Connie and the Eberts also appeal the superior court’s order granting Bruce  


supervised visitation in the related custody litigation.  But it is clear from the record that  


this order was an interim order only, and that the court had not yet scheduled a trial on  



Bruce’s complaint for custody.                   As a result, there is no final order on the visitation issue  



that would support an appeal.                   We therefore dismiss the appeal of the interim custody  


V.	       CONCLUSION  

                    We  AFFIRM  the  superior  court’s  judgment  denying  the  petition  for  


(2013), ICWA does not apply to the present case.  But because Bruce’s consent was  


required for the adoption under state law, it is not necessary for us to reach these issues.  


Cf. id. at 2559 (“Under state law, [Biological] Father’s consent to the adoption would not  

have been required.”).  



                    Cf.  D.L.M.  v.  M.W.,  941  P.2d  900,  903  (Alaska  1997)  (discussing  the  


difference between a final decree denying a petition for adoption and an interim order  

entered in related custody litigation).  

          35        See Alaska R. App. P. 202(a); Conservatorship Estate of K.H. v. Cont’l Ins.  

Co.,  73  P.3d  588,  595  (Alaska  2003)  (concluding  that  an  interim  order  was  not  

appealable);  Glasen v. Glasen, 13  P.3d 719, 723 (Alaska 2000) (concluding that an  


interim separation decree was not a final judgment); see also Nevitt v. Provost, Mem. Op.  


& J. No. 1201, 2005 WL 327219, at *2 (Alaska Feb. 9, 2005) (“Interim child custody  


orders are not final judgments as they are inherently temporary.”).  

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