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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rice v. McDonald (3/3/2017) sp-7154
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JESSIE C. RICE, )
) Supreme Court No. S-16218
Appellant, )
) Superior Court No. 4FA-14-03084 CI
v. )
) O P I N I O N
JOHN C. McDONALD and CHARLES )
RICE, ) No. 7154 - March 3, 2017
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael A. MacDonald,
Judge.
Appearances: Jessie C. Rice, pro se, Anchorage, Appellant.
Notice of nonparticipation filed by Jason F. Doxey, Burglin
& Doxey, PC, Fairbanks, for Appellee John C. McDonald.
No appearance by Appellee Charles Rice.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
The father of three Indian children killed their mother. After the father's
arrest, the father's relatives moved the children fromAlaska to Texas and gained custody
of the children through a Texas district court order. The mother's sister filed a separate
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action against the father in Alaska superior court, seeking custody of the children and
challenging the Texas order. Although Alaska had exclusive jurisdiction to make the
initial custody determination, the Alaska court concluded that Texas was the more
appropriate forum and ceded its jurisdiction to the Texas court, primarily because
evidence about the children's current status was in Texas.
We vacate the superior court's decision. It was an abuse of discretion to
minimize the importance of protecting the children from the father's alleged domestic
violence and to minimize evidence required to resolve domestic violence and Indian
Child Welfare Act issues in this case.
II. FACTS AND PROCEEDINGS
John C. McDonald and his wife were the parents of three minor children
born between 2006 and 2010. The parties agree that the children are "Indian children"
1
as defined by the Indian Child Welfare Act (ICWA).
The children have maternal
relatives living in Anchorage and paternal relatives living in Texas.
The children were born and raised in Fairbanks, and the family lived
together in Fairbanks until McDonald killed his wife in March 2014. In August
McDonald was arrested, incarcerated, and charged with his wife's murder. He
eventually pleaded guilty to criminally negligent homicide in April 2016.
ShortlyafterhisAugust2014arrest,McDonald'ssister, RebeccaSchimcek,
moved the children from Fairbanks to Texas. That September Schimcek and other
paternal relatives filed a custody petition with McDonald's consent in Texas district
court. The paternal relatives did not disclose McDonald's pending murder charge in
their petition, and the maternal relatives were not notified of the proceeding. The Texas
1
See 25 U.S.C. § 1903(4) (2012).
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district court primarily awarded custody of the children to Schimcek and her husband.
The order did not contain any reference to potential domestic violence by McDonald.
The next month Jessie Rice, sister of the deceased mother, filed a separate
custody petition against McDonald in Alaska superior court, asserting that the mother
was deceased and that McDonald was incarcerated and awaiting trial for her murder.
Rice's father later joined her in the case, but he did not appear in this appeal. She also
filed a motion to vacate the Texas order. McDonald moved to dismiss, arguing that the
Alaska court lacked jurisdiction to modify the Texas order.
The superior court denied McDonald's motion to dismiss in
November 2015. The court applied the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), which defines a priority scheme for determining initial
2 The court concluded that Alaska, not Texas, had
jurisdiction in child custody matters.
exclusive jurisdiction to make the initial custody determination for the children because
Alaska had a higher jurisdictional priority than Texas and had not declined to exercise
3 Although the Texas custody order was proper under Texas's temporary
its jurisdiction.
2 UNIFORM CHILD CUSTODY JURISDICTION & E NFORCEMENT ACT § 201
(1997). The UCCJEA governs child custody jurisdictional disputes between states and
EX.
has been adopted by both Alaska and Texas. See generally AS 25.30.300-.910; T
FAM. C ODE ANN . §§ 152.001-.317 (West 2015).
3
See UCCJEA § 201; AS 25.30.300(a); TEX.F AM.C ODE ANN .§ 152.201(a).
A child's "home state" or "recent home state" has jurisdictional priority over other states
unless that state declines to exercise its jurisdiction. UCCJEA § 201(a); see also Norris
v. Norris, 345 P.3d 924, 928-31 (Alaska 2015) (applying priority scheme). The children
had not resided in Texas for at least six months immediately before the Texas
proceeding, so Texas was not the children's home state. See TEX. F AM. C ODE ANN .
§ 152.102(7). But the evidence established that Alaska was the children's recent home
state, as Alaska had been their home state within six months before the Texas proceeding
and McDonald continued to live in Alaska. See AS 25.30.300(a)(2). Therefore Alaska
(continued...)
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emergency jurisdiction, the court explained that the Texas order would cease to be
4
effective once the Alaska court issued a final custody order.
The court also ordered Rice
5
to join the paternal relatives as necessary parties.
Soon after its decision the Alaska court held a telephonic conference with
a district court judge in Texas. In late November the Alaska court requested
supplemental briefing based on the UCCJEA's inconvenient forum provision, which
allows a state with higher priority to cede jurisdiction to a lower priority state if the other
6 McDonald argued that the Alaska court should cede
state is a more appropriate forum.
its jurisdiction to Texas; Rice disagreed and argued that the case should remain in
Alaska. Rice also claimed that the proceeding was subject to ICWA and argued that
evidence required by ICWA, along with evidence related to the homicide, was located
in Alaska.
Schimcek submitted an affidavit which established that the children were
living with her in Texas. She described each child's current situation, including
counseling, healthcare, education, and socialization. She claimed that "[a]ny pertinent
testimony or evidence of the children's current well[-]being is here in Texas."
3 (...continued)
had a higher jurisdictional priority than Texas.
4
See TEX.F AM.C ODE ANN .§ 152.204. "Generally, a state may make a child
custody determination . . . if the other state did not have proper jurisdiction when it
issued its custody order." Norris, 345 P.3d at 928. Due to Alaska's higher priority as
the children's recent home state, Texas could not properly have had initial custody
jurisdiction unless Alaska declined to exercise it. See TEX. FAM. CODE ANN .
§ 152.201(a)(3).
5 The paternal relatives apparently were not joined, did not move to
intervene, and have not participated in this appeal.
6 See UCCJEA § 207(a); AS 25.30.360(a).
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The next month the Alaska court declined to exercise its jurisdiction,
concluding that a court in Texas would be a more appropriate forum to make the initial
custody determination. The court based its decision on the evidence in Texas about the
children's current status, finding most of the other factors neutral and minimizing the
significance of the homicide allegations against McDonald because he was incarcerated.
The court suggested that ICWA would not apply unless the children were "placed into
state custody" and later explained that "[a]ny requirements of . . . ICWA can be
addressed by the Texas court." The court dismissed the Alaska case and ceded
jurisdiction to Texas.
Rice appeals. McDonald filed a notice of non-participation.
III. DISCUSSION
Rice argues that ICWA applies to this proceeding. She also argues that the
Alaska superior court afforded too much weight to the Texas evidence in its decision to
decline jurisdiction. We agree. 7
A. ICWA Applies To The Alaska Custody Proceeding.
Weapply our independentjudgmentwheninterpreting federal statutes such
8
as ICWA.
9
ICWA applies "to child custody proceedings involving Indian children."
7 Rice also challenges the use of the inconvenient forum provision itself, but
we reject her policy and due process arguments. Rice does not explain how it would
violate the UCCJEA's purposes to use the UCCJEA's own provision for transferring
jurisdiction. And even if, as Rice argues, the paternal relatives were not "persons acting
as parents," she does not explain why this would prevent Texas from having subject
matter jurisdiction if Alaska ceded it.
8 Starr v. George, 175 P.3d 50, 54 (Alaska 2008).
9 A.B.M. v. M.H., 651 P.2d 1170, 1172 (Alaska 1982) (citing 25 U.S.C.
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"Child custody proceeding" is defined to include "foster care placement," which itself
is defined to include "temporary placement in . . . the home of a guardian . . . where the
10 Since the early days of
parent . . . cannot have the child returned upon demand."
ICWA, we have rejected the claim that ICWA applies "only to custody proceedings
involving the removal of Indian children from their homes by nonfamily public and
private agencies."11 Thus we have applied ICWA in a custody dispute between
grandparents,12 in a custody dispute between a father and a stepfather after the mother
died,13 and generally to "custody disputes within the extended family" even when the
case "concerns a voluntary placement within the family."14 We categorized at least one
of these custody disputes as a foster care placement.15
ICWA applies here. As Rice argues, this dispute is a child custody
proceeding involving Indian children as defined by ICWA - specifically, a foster care
placement, as Rice seeks to remove the children from McDonald, place them in her
9 (...continued)
§ 1903(1)).
10
25 U.S.C. § 1903(1).
11
A.B.M. , 651 P.2d at 1172.
12
Starr, 175 P.3d at 54-55.
13
J.W. v. R.J., 951 P.2d 1206, 1208, 1214 (Alaska 1998), overruled on other
grounds by Evans v. McTaggart, 88 P.3d 1078, 1084-85 (Alaska 2004).
14 A.B.M. , 651 P.2d at 1173. ICWA does not apply in custody disputes
between parents. 25 U.S.C. § 1903(1) (divorce exception); see also John v. Baker, 982
P.2d 738, 747 (Alaska 1999) (excluding disputes between unmarried parents).
15 J.W., 951 P.2d at 1212-13.
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16
home, and prevent him from having the children returned upon his demand. It is clear
that this matter is a child custody proceeding involving Indian children, and therefore
ICWA applies.
B. The Inconvenient Forum Factors Were Improperly Weighed.
Rice argues that the superior court placed too much weight on evidence of
the children's current status in Texas and minimized the factors that favored Alaska
when it declined jurisdiction. We review the court's decision to decline jurisdiction
17
under the abuse of discretion standard.
Abuse of discretion occurs if, inter alia, the
18
court "assigned disproportionate weight to particular factors while ignoring others."
We will overturn a discretionary ruling if "the reasons for the exercise of discretion are
19
clearly untenable or unreasonable."
Under Alaska'sUCCJEAacourt may cedeits jurisdiction to another state's
20
court if the other court is a more appropriate forum. This decision may be made "at any
21 and the court may consider "all facts up to the date of the motion or hearing."22
time"
The court considers "all relevant factors"including eightstatutoryfactors: (1) protection
16 See 25 U.S.C. § 1903(1)(i).
17 Mikesell v. Waterman, 197 P.3d 184, 186 (Alaska 2008).
18 Moore v. Moore, 349 P.3d 1076, 1080 (Alaska 2015) (citing Frackman v.
Enzor, 327 P.3d 878, 882 (Alaska 2014)).
19 Id. (citing Burke v. Maka, 296 P.3d 976, 980 (Alaska 2013)).
20 AS 25.30.360(a).
21 Id.
22 Szmyd v. Szmyd, 641 P.2d 14, 21 (Alaska 1982) (applying UCCJEA's
predecessor); see also Mikesell, 197 P.3d at 190 (evaluating UCCJEA factor based on
"the time the motion was filed in this case").
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from domestic violence; (2) the length of child's absence from the state; (3) the distance
between the states; (4) relative financial circumstances; (5) the parties' agreement;
(6) the nature and location of the evidence; (7) the courts' ability to decide the issues
23 The court must
expeditiously; and (8) the courts' familiarity with the facts and issues.
"articulate its reasoning" but need address only the "pertinent and potentially
determinative factors" rather than all of them.24
The superior court indicated that most of the factors were neutral and paid
little attention to them. The court rested its decision on factor (6), finding that "[t]he
main body of the evidence regarding the current status of the children and their needs is
in Texas," and concluded that a Texas court would be a more appropriate forum for this
matter. The court later emphasized that its decision was "based mostly on the children's
current circumstances." We conclude that the court's treatment of this location of
evidence factor and minimization of the domestic violence factor was an abuse of
discretion.25
23 AS 25.30.360(b).
24 Steven D. v. Nicole J., 308 P.3d 875, 884 (Alaska 2013).
25 In addition to her arguments regarding the factors we consider in depth,
Rice argues that factor (7), the courts' ability to decide, favors Alaska because the Texas
proceedings would be delayed by her challenges to Texas's subject matter jurisdiction.
But her citations to four Texas cases that do not involve the situation where a state with
higher priority ceded jurisdiction to Texas do not convince us that Texas would lack
jurisdiction. Rice further argues that factor (8), the courts' familiarity with case, favors
Alaska because she has provided the Alaska court "with the most accurate facts," but she
does not explain why she could not provide those same facts to a Texas court. It was
therefore not an abuse of discretion for the superior court to find factors (7) and (8)
neutral, reasoning that either court could "decide the issues in this case expeditiously"
and both courts were "equally apprised of the facts and issues of this case."
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1. Factor (1): protection from domestic violence
Under factor (1), the court should consider "whether domestic violence has
occurred and is likely to continue in the future and which state could best protect the
26
parties and the child." The superior court found "no evidence of domestic violence in
the proposed households" and thus afforded no weight to this factor. Although the
allegations against McDonald were "significant," the court minimized concerns about
protecting the children from McDonald because he was "not available to exercise
physical custody of the children due to his incarceration." But this assumption was
unreasonable; McDonald would be available to exercise physical custody as soon as he
was released from jail, whether because the charges were dismissed, he was found not
27
guilty, or he had served his sentence.
This factor favors Alaska. Alaska law provides a statutory presumption
against an award of custody to a parent who has a history of perpetrating domestic
violence.28 As we have repeatedly articulated, this presumption exists to promote the
"important priority of protecting children from domestic violence."29 We recently
emphasized that "superior courts must 'consideralleged incidents ofdomesticviolence' "
when making a custody determination.30 And Rice has raised McDonald's alleged
26 AS 25.30.360(b)(1).
27 McDonald had not yet pleaded guilty at the time of the motion.
28 AS 25.24.150(g).
29 Stephanie F. v. George C., 270 P.3d 737, 751 (Alaska 2012); see also
Williams v. Barbee, 243 P.3d 995, 1001 (Alaska 2010).
30 Sarah D. v. John D., 352 P.3d 419, 430 (Alaska 2015) (emphasis in
original) (quoting Parks v. Parks, 214 P.3d 295, 302 (Alaska 2009)); see also Williams,
243 P.3d at 1004-05; Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007).
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domesticviolenceas an issue continuously throughout these proceedings. In contrast the
paternal relatives did not disclose McDonald's murder charges or suggest any concern
about McDonald's potential domestic violence, andaccordingly the Texas custody order
contains no mention of domestic violence.
The domestic violence factor requires the court to consider "which state
31 Alaska law and our courts prioritize protecting
could best protect . . . the child."
children from domestic violence, while the legal landscape in Texas is unclear from the
record. Rice has prioritized McDonald's alleged domestic violence as an issue; the
paternal relatives have ignored it. Litigating custody in Texas would favor the paternal
relatives, reducing the chance that the presiding court would investigate the allegations
and protect the children. It was therefore unreasonable to minimize this factor.
2. Factor (6): nature and location of the evidence
Under factor (6), the court should consider "the nature and location of the
evidence required to resolve the pending litigation."32 This factor involves identifying
the issues in the dispute and considering the evidence required to resolve those issues.
Thus when a custody hearing was limited to a "narrow question" involving visitation,
we upheld the denial of an inconvenient forum motion because evidence about the
child's care was in Alaska.33 And in an initial custody action where "the evidence should
not focus on either party," we upheld the court's decision to decline jurisdiction when
the court favored evidence in the other state even though evidence of the child's current
31 AS 25.30.360(b)(1) (emphasis added).
32 AS 25.30.360(b)(6).
33
Steven D. v. Nicole J., 308 P.3d 875, 884 (Alaska 2013).
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34
circumstances was in Alaska. We also endorsed the court's observation that the recent
"educational and medical evidence" in Alaska was "more amenable to telephonic or
written presentation" and "less likely to be questioned" compared to testimony from out-
of-state relatives. 35
As discussed above this case will require resolution of issues involving
domestic violence and ICWA. Thus the superior court should have considered what
evidence was required to resolve those issues. Instead the court implicitly focused on
a narrower issue - whether Rice or the paternal relatives should have initial custody of
the children. The court minimized the importance of both domestic violence evidence,
due to McDonald's incarceration, and ICWA, stating that any ICWA requirements could
be "addressed by the Texas court." The court accordingly found that this factor favored
Texas because "[t]he main body of the evidence regarding the current status of the
children and their needs is in Texas" including evidence from teachers, doctors,
counselors, friends, and caregivers.
But as Rice argues, the nature of the Texas evidence is "more amenable to
telephonic or written presentation" and "not expect[ed] . . . to be a matter of serious
dispute." The Alaska evidence is more complex. The children's mother was killed in
Alaska; evidence related to her homicide, as well as other potential evidence from the
Office of Children's Services, is located in Alaska. Furthermore, ICWA sets out
placement preferences which are governed by "the prevailing social and cultural
standards of the Indian community . . . with which the parent or extended family
34 Mikesell v. Waterman, 197 P.3d 184, 190, 192 (Alaska 2008).
35 Id. at 192.
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36
members maintain social and cultural ties" and requires testimony from a qualified
37
expert witness when ordering a foster care placement.
This evidence is located in
Alaska. It was therefore unreasonable to conclude that this factor favors Texas.
IV. CONCLUSION
For thereasonsexplainedabove,weVACATEthesuperior court's decision
and REMAND for further proceedings.
36 25 U.S.C. § 1915(d). A cultural standards issue apparently arose during
this dispute. McDonald challenged Rice's relationship with his wife and attested that
Rice was his wife's biological niece, not her sister. Rice responded by alluding to a tribal
adoption. The court stated that "the parties are free to argue the significance of this
distinction during the child custody proceedings."
37 25 U.S.C. § 1912(e).
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