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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

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  


                    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,  



                   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.  



                   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"                                                                   


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  



                                   See 25 U.S.C.  1903(4) (2012).  

                                                                                                               -2-                                                                                                                7154  

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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  


 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).                                                                                               



                                           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  


                                                                                                                                       -3-                                                                                                                              7154

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 emergency jurisdiction, the court explained that the Texas order would cease to be                                                                               


 effective once the Alaska court issued a final custody order.                                                                                                       

                                                                                                                       The court also ordered Rice  



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.  



                           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 .  



              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  



 as ICWA. 



                                                 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.  


                                                                                                                                                       -5-                                                                                                                                             7154

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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)  





                        25 U.S.C.  1903(1).  



                        A.B.M. , 651 P.2d at 1172.  



                        Starr, 175 P.3d at 54-55.  



                        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.  


                                                                             -6-                                                                      7154

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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                                                                 


under the abuse of discretion standard.                                                                                                                                                                                         

                                                                                                                 Abuse of discretion occurs if, inter alia, the  



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  



clearly untenable or unreasonable." 


                                    Under Alaska'sUCCJEAacourt may cedeits jurisdiction to another state's  



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  



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").  

                                                                                                                 -7-                                                                                                         7154

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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  



             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."   

                                                                                  -8-                                                                            7154

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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                                                                                     


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  



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).   

                                                                                      -9-                                                                                7154

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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).   



                                Steven D. v. Nicole J., 308 P.3d 875, 884 (Alaska 2013).  

                                                                                                   -10-                                                                                              7154

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


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.  

                                                                              -11-                                                                              7154  

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


members maintain social and cultural ties"                                                                                                    and requires testimony from a qualified                                                       


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).  


                                                                                                                                -12-                                                                                                                          7154

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