In the Matter of the ADOPTION OF SARA J., Joel J., and Morris J., Minor Children.
Nos. S-11301, S-11312
Supreme Court of Alaska
Nov. 10, 2005
123 P.3d 1017
Mary Ann Lundquist, Assistant Attorney General, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee State of Alaska, Department of Health and Social Services.
Michele Power, Angstman Law Office, Bethel, for Appellee Matilda W.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
OPINION
EASTAUGH, Justice.
I. INTRODUCTION
Matilda W., a caucasian living in Bethel, petitioned to adopt three sibling Native children. The superior court granted her petitions over the objections of the Native Village of Kasigluk and a Native couple who were interested in adopting the children. The Indian Child Welfare Act1 (ICWA) establishes preferences for placing an Indian child within the child‘s extended family, with other members of the child‘s tribe, or with other Indian families.2 The prevailing social
and cultural standards of the Indian community apply in meeting the preference requirements.3 A court may deviate from these preferred placements only upon a showing of “good cause.”4
Do the prevailing social and cultural standards also govern the good cause determination? We hold that they do not, but that they remain relevant if the good cause inquiry raises questions about the suitability of a statutorily preferred placement. They may also inform, but need not control, any determination of whether a child‘s special needs or other circumstances constitute good cause to deviate from the preferences.
Because the superior court‘s good cause findings in this case are supported by the evidence and do not implicate the suitability of a preferred placement, we affirm its determination that there is good cause to deviate from the preferences. We therefore affirm the decrees granting Matilda W.‘s adoption petitions.
II. FACTS AND PROCEEDINGS
Sara J., Joel J., and Morris J. are the biological children of Isabel B. and Roger J., who were members of the Native Village of Hooper Bay and the Native Village of Kasigluk, respectively.5 The oldest child was born in 1994; the youngest was born in 1999. The parental rights of Isabel and Roger were terminated in January 2003.
Sara and Morris first entered state custody in 1997 and were placed with a relative in Kasigluk for a year and a half. They were briefly returned to their parents, but were removed soon after Joel‘s birth. Joel‘s medical problems required that he be close to a hospital, and he was placed in a Bethel home, and then with Matilda W., an unrelated caucasian woman living in Bethel. Sara and Morris later rejoined Joel when they were placed with Matilda after the Alaska Office of Children‘s Services (OCS), formerly known as the Alaska Division of Family and Youth Services, received reports of harm while they were placed with a relative in Bethel.
OCS continued to seek a workable relative placement for the J. children, next placing them with Jake and Ruby B., the children‘s maternal uncle and aunt. After Joel was hospitalized, OCS removed him from that placement, placing him again with Matilda in January 2002. Sara and Morris joined him there a month later.
Frank and Tonya B., another maternal uncle and aunt, became interested in having the J. children placed with them, and sought a foster licensing in the summer of 2003. Matilda petitioned to adopt the three J. children in July 2003.
The Native Village of Kasigluk, as the tribe with the most significant contacts, intervened pursuant to
The Native Village of Kasigluk and Frank and Tonya B. appeal, arguing that the good cause determination under ICWA must be governed by the prevailing social and cultural standards of the Indian community and that the superior court‘s findings were unsupported by the evidence. The appellants filed a joint brief. We refer to them collectively as the “tribe.” The state and Matilda W. are appellees.
A. Standard of Review
We review a finding of good cause to deviate from ICWA preferences for abuse of discretion.6 It would be an abuse of discretion for a superior court to consider improper factors or improperly weigh certain factors in making its determination.7 Determining whether the superior court‘s findings comport with the requirements of ICWA raises a question of law that we decide de novo.8 We review findings of fact for clear error.9 A factual finding is clearly erroneous when we are “left with a definite and firm conviction that the trial court has made a mistake.”10
B. The Prevailing Social and Cultural Standards of the Relevant Indian Community Have Only Limited Application in Determining Whether Good Cause Exists To Depart from ICWA‘s Adoptive Preferences.
Congress enacted the Indian Child Welfare Act out of concern over the unwarranted break-up of Indian families caused by removal of children by state authorities and the placement of “an alarmingly high percentage of such children” with non-Indian foster and adoptive placements.11 In an effort to reverse this trend, ICWA specifies preferred adoptive placements for Indian children.12 Thus,
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child‘s extended family; (2) other members of the Indian child‘s tribe; or (3) other Indian families.
Furthermore, Congress intended in enacting ICWA that “white, middle-class standards” not be used in determining whether preferred placements are suitable.13 Instead,
The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
The three preferred placements listed in
But these standards do not override or change the preference requirements of
The tribe‘s main contention on appeal is that these standards also apply to any dispute under
Because we read most of these sources, particularly the text of the statute and the BIA‘s interpretation, to indicate that the prevailing social and cultural standards of the Indian community are not generally applicable to the good cause determination, we ultimately disagree with the tribe. Nonetheless, because ICWA‘s purpose and the BIA‘s interpretation make the prevailing social and cultural standards relevant to the good cause determination insofar as this determination may implicate the suitability of a statutorily preferred placement candidate, many of the tribe‘s concerns are minimized. Furthermore, the superior court may refer to the prevailing social and cultural standards of the Indian community in determining whether a child‘s special needs or other circumstances are sufficient to establish good cause to deviate from
The plain language of
The tribe, in arguing that ICWA‘s plain language requires application of the standards to the good cause determination, contends that “[t]he ‘preference requirements’ of
But we cannot agree with the tribe and the concurring opinion that the phrase “meeting the preference requirements” in
Although they are part of a common statutory scheme, inquiries into suitable preferred placements are separate from inquiries into good cause. It is not plain from the language of the statute that standards applicable to the issue of the suitability of preferred placements must necessarily also apply to the issue of good cause. Rather, accepted principles of statutory interpretation suggest that the opposite is true.
Congress specified in
The tribe also argues that in interpreting statutes that protect the rights of Native Americans, this court must resolve any ambiguity in favor of Native Americans.22 According to the BIA, Congress left the primary responsibility for interpreting ICWA to the courts deciding Indian child custody cases.23 We have recognized that other authorities interpreting the same provisions may also be useful.24 In dealing with statutes protecting the rights of Native Americans, “the standard principles of statutory construction do not have their usual force.”25 But this principle is not a license to disregard the clearly expressed intent of determination was encompassed by
A fair appraisal of
The context of ICWA‘s enactment suggests that the prevailing social and cultural standards of the Indian community do not apply to the good cause determination. The House Report‘s analysis of section 5, later codified as
The tribe argues that the same context supports its proposed interpretation. Congress found that in placing Indian children, state courts and agencies have “failed to recognize the essential tribal relations of Indian people and the social and cultural standards prevailing in Indian communities and families.”30 Congress enacted ICWA in large measure to protect “the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for ... placement ... which will reflect the unique values of Indian culture.”31 The use of the prevailing social and cultural standards of the Indian community to determine the suitability of preferred placements furthers this end and addresses the specific concern voiced by Congress. We are not persuaded that applying the prevailing social and cultural standards of the Indian community to the good cause determination is necessary to advance ICWA‘s purposes.
Subsection
The tribe notes that almost every ICWA case involves a determination of good cause. This suggests to the tribe that applying non-Native standards to the good cause determination would create a loophole, eviscerating the protections of ICWA. The tribe‘s fear is misplaced. First, as outlined below, in determining whether good cause exists, “white, middle-class” standards may not be applied to reassess the suitability of a preferred placement. Second, under Alaska law the burden of showing good cause is on the party proposing placement outside the statutory preferences.35 The BIA Guidelines for State Courts note that this allocation of the burden of proof is necessary “[s]ince Congress has established a clear preference for placements within the tribal culture.”36 (The BIA issued the Guidelines to provide nonbinding guidance to state courts interpreting ICWA.37) We are satisfied that these protections, together with the sound judgment of Alaska‘s trial courts, are sufficient to preserve ICWA‘s protections for Indian children and communities.
The tribe suggests that our cases are not inconsistent with applying the prevailing social and cultural standards of the Indian community to the good cause determination, but only reflect the lack of evidence of those standards. Thus, it contends that applying these standards is required in this case where, for the first time, the “tribal-standards mandate of
The tribe also argues that cases from other jurisdictions support its contention that the prevailing social and cultural standards of the Indian community apply to the good cause determination. In Matter of Baby Boy Doe,39 the Idaho Supreme Court addressed this question. After quoting the BIA Guidelines regarding the good cause inquiry, the court stated that
[i]n determining whether “good cause” existed, the trial court rejected the arguments by the adoptive parents’ counsel that the child is old enough to request a preference; the child has extraordinary
In Baby Boy Doe, the non-Native adoptive parents mistakenly argued that negative social and economic conditions on the reservation constituted good cause for departing from the preferences.41 But these conditions would be relevant, if at all, to the suitability of potential Native relative placements, and as such had to be viewed in light of the prevailing social and cultural standards of the Indian community. The court‘s language does not suggest that the child‘s ability to “request a preference” or the existence of “extraordinary physical needs” is governed by the prevailing social and cultural standards of the Indian community.42
The Baby Boy Doe court suggested that whether the psychological need for permanence could be satisfied by a relative placement should be analyzed in light of an Indian standard.43 But the court ultimately affirmed the finding of good cause based on the biological mother‘s preference, the certainty of emotional trauma if the child was removed from the adoptive parents, and the likelihood of emotional trauma if the child encountered the father while living on the reservation.44 In concluding that these considerations together constituted good cause under “the applicable legal standards,” it did not discuss them with reference to the prevailing social and cultural standards of the Indian community.45 The court instead approved of applying the prevailing social and cultural standards of the Indian community primarily to the determination of suitability.46
Similarly, In re Jullian B. reversed a finding of good cause because the trial court failed to consider several factors in light of the prevailing social and cultural standards of the Indian community.47 The social worker in that case was concerned about the potential placement‘s “age, his inability to suggest a person who could care for the minor if he became incapacitated, his prior conviction for vehicular manslaughter of a child when he was driving under the influence, his failure to rehabilitate for many years ... [and] his health and his lack of support system....” 48 None of these concerns implicated special needs of the child. Instead, each of these factors was relevant to the suitability of the potential Native relative placement, and thus had to be considered in light of the prevailing social and cultural standards of the Indian community.49 The court ultimately reversed on other grounds,50 but never suggested that the prevailing social and cultural standards of the Indian community apply to anything determining the suitability of preferred placements.
These cases recognize that the prevailing social and cultural standards apply to determinations of the suitability of preferred placements even if the suitability determinations arise in the context of the good cause inquiry. We do not read these cases as
Our conclusion that the prevailing social and cultural standards of the Indian community do not generally apply to the good cause determination is supported by the BIA Guidelines, which suggest three factors to consider in determining good cause:
(i) The request of the biological parents or the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.51
As the Guidelines observe, the legislative history indicates that the “term ‘good cause’ was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child.”52 This flexibility is not a license to impose non-Native standards when courts consider the suitability of statutorily preferred placement candidates. Rather, it is an authorization to take the child‘s special needs into account when determining whether good cause exists to place the child outside the statutory preferences despite the existence of an otherwise suitable home within the preferences.
Applying “white, middle-class” standards to the suitability inquiry as an aspect of the good cause determination could effectively read the preference requirements and the prevailing social and cultural standards of the Indian community out of the statute. This would occur if courts, while determining whether there is good cause for deviating from the statutorily preferred placements, could apply white, middle-class standards to examine or reexamine the suitability of a Native or relative placement deemed suitable under prevailing Indian social and cultural standards. This is the very problem ICWA was enacted to eliminate. Our holding today respects the purposes of ICWA by preventing non-Native standards from being used to decide that a preferred placement is not suitable.
The qualifications required of expert witnesses in our ICWA cases reinforce this conclusion. In some parental rights termination cases, experts with specialized knowledge of the Native culture are needed because social workers without expertise are unable to distinguish between the prevailing standards of the Indian community and actual abuse and neglect.53 But so long as issues of cultural bias are not implicated, experts need not have training in the cultural standards of the Indian community.54 These rules reflect an implied judgment that while the suitability of a Native household must be viewed in light of the prevailing social and cultural standards of the Indian community, courts are not compelled to analyze a child‘s special needs according to those standards. Such needs would demonstrate good cause if, as the superior court found here, adequate facilities to address them were not available to the preferred placement but were available to the non-preferred placement.55
The concurring opinion contends that the prevailing social and cultural standards of the Indian community directly apply to the good cause determination. This contention is grounded on a perception of the role of the placement preferences and the good cause determination fundamentally different from our own. The concurring opinion suggests that the good cause determination is a device for choosing between non-preferred placements and suitable preferred placements.56 If this were indeed the role of the good cause inquiry, we would agree that the prevailing social and cultural standards of the Indian community must govern.
But although it is correct that the word “preference” generally connotes a choice between two options,57 we read ICWA‘s structure and purpose to preclude choosing between preferred and non-preferred placements if the preferred placement is “suitable,” as measured by the prevailing social and cultural standards of the Indian community. The existence of a suitable preferred placement precludes any consideration of a non-preferred placement unless good cause exists, for example, because another preference has been expressed by the child or the child‘s biological parents, or because the child has special needs that cannot be met by an otherwise-suitable preferred placement.
The concurrence also contends that the court‘s interpretation of
In holding that the prevailing social and cultural standards of the Indian community apply to the good cause determination only when it implicates a preferred placement‘s suitability, we recognize our disagreement with a decision of the Minnesota Supreme Court. In Matter of Custody of S.E.G., that court rejected a trial court‘s finding that the need for permanence was an extraordinary emotional need and that adoption was the only way to meet that need.61 On appeal, the court held that evidence of a special need for permanence must be presented by qualified experts with knowledge of the Indian community, suggesting that “permanency is defined differently in Native American cultures.”62 The court thus seemingly integrated the prevailing social and cultural stan-
C. Substantial Evidence Supported the Superior Court‘s Findings.
The tribe argues that the superior court‘s findings were not supported by substantial evidence. Many of its arguments hinge on its contention, rejected above, that the superior court erred by not applying the prevailing social and cultural standards of the Indian community. The superior court was not required to apply those standards, but we still review the tribe‘s factual contentions.
1. The superior court did not err in finding that harm to the children from living outside the village was outweighed by the potential harm from being separated from Matilda.
The tribe asserts that the superior court erred in finding that the damage to the J. children from being separated from Matilda would outweigh the damage that severance from their Yup‘ik heritage would cause the children. The tribe asserts that “the Yup‘ik standard gives less weight to the short-term disruption that a removal from [Matilda‘s] home might cause.” The tribe believes that this disruption is outweighed by the lack of a “compass and foundation in life” that would result from the children being separated “from the life blood of their culture,” and that “the children will melt ‘like butter’ into the supportive environment of [their] home and village community.” This is essentially an argument that the superior court should have conducted a “best interests of the child” analysis using the prevailing Yup‘ik standards. But the children‘s special needs do not implicate the determination of suitability for a preferred placement and need not be analyzed using the prevailing social and cultural standards of the Indian community. The evidence suggests that removing the children from Bethel and Matilda would cause them special harm.64
Morris attends counseling in Bethel. His counselor, Jennifer Cashion, testified that he would likely suffer some regressive behavior if he had to change clinicians before a new therapeutic relationship could be established. Dr. MacIan, a clinical psychologist acquainted with the children and their needs, testified that Morris needs structure. Cashion testified that Morris exhibits symptoms of post-traumatic stress syndrome, and Matilda and another witness testified to the devastating impact another move would have on him. Sara has been diagnosed with an unspecified adjustment disorder and meets criteria designated for emotionally disturbed children. Sara‘s former counselor expressed both short- and long-term concerns for Sara if she is moved. We also note that Matilda testified that Morris told her that he wanted to be adopted by her.
There was evidence of the dangers inherent in raising Indian children in non-Native households. Dr. Roll testified that Native children raised in non-Native homes are at risk of erosion of language skills, identity, and cultural confusion, identity diffusion, and identification with the aggressor. But Dr. MacIan testified that these concerns can be mitigated in this case by taking advantage of opportunities in Bethel to encourage a positive view of the children‘s culture through contact with the Yup‘ik culture. As outlined below, Matilda has demonstrated a willing-
In light of the evidence discussed above, we cannot say that the superior court erred in finding that the damage that would be caused by separation from Matilda implicated special emotional needs, and together with the children‘s behavioral and educational needs, constituted good cause to deviate from the preferences. Nor does the tribe argue that Matilda is ineligible to adopt the children under state law.
2. The superior court did not err in finding that the children‘s special needs could be met in Bethel, but not in the village.
The tribe also disputes the superior court‘s finding that the children‘s behavioral and educational needs could be met better in Bethel by Matilda than in Chevak with Frank and Tonya B.
Expert testimony established that the J. children have special needs. Sara has been diagnosed with an unspecified adjustment disorder and falls under criteria designated for emotionally disturbed children. Morris has been diagnosed with static encephalopathy and fetal alcohol spectrum disorder (FASD). Joel has been diagnosed with static encephalopathy, is hyperactive, exhibits poor short-term memory, and suffers from developmental delays and behavioral problems. Both Morris and Joel qualify for special education. Morris was in counseling at the time of trial.
Jackson S., the tribe‘s expert witness on raising children with special needs in the village setting, testified that he relied upon his twenty-eight-year-old and sixteen-year-old sons, his grandchildren, his extended family, and various services and workshops outside his village to help raise his adopted daughter, diagnosed with fetal alcohol syndrome (FAS). Tonya B.‘s familial support network is not so extensive, consisting of Frank B.‘s three siblings and her niece. She also stated that she would depend on her fourteen-year-old daughter for help. Although Frank testified that there are “helpers and providers” in the village for children with FAS, he had only superficial familiarity with these services. And even if treatment were available in the village, there is no evidence that it would be as easily accessible as in Bethel.65
Neither did Tonya demonstrate a clear understanding of the J. children‘s needs. When asked what Morris‘s needs were, she responded, “Well, if he comes into our house ... that‘s when I‘ll find out what his needs are.” She also assumed the J. children would be easier to handle now that they are older, stating that “they‘ll be, like, mostly on their own with my children.”
Matilda presented evidence that Bethel is well-equipped to address the special needs of the children. Joel‘s teacher testified that Joel needs to be in special education programs, and would benefit from being taught by certified teachers. She expressed doubt that many preschool programs in villages were taught by certified teachers. Morris attends counseling in Bethel with his behavioral health clinician. But for village-based clients, wellness counselors with less training than Morris‘s current counselor provide the ongoing counseling. These wellness counselors sometimes do not live in the villages. There was evidence that if Morris had to change clinicians, there would likely be some regressive behavior before a new therapeutic relationship could be established. Sara also requires mental health services to meet her needs.
A home study of Matilda‘s home describes Bethel as having “a full range of health care, mental health care, educational, religious, communications, and social services.” The children‘s teachers indicated that Joel and Morris‘s special education needs can be met by the Bethel school district. Morris‘s counselor‘s testimony suggests that Bethel also has the behavioral health care facilities necessary to meet the J. children‘s needs. A 2002 Catholic Social Services adoption home study noted Matilda‘s ability to meet the children‘s medical and emotional needs. Morris‘s current and Sara‘s former behavioral health clinician indicated that the children
Based on this evidence, the superior court did not clearly err in finding that the children‘s special needs could be met in Bethel, but not in the village.
3. The superior court did not err in finding that OCS made adequate efforts under ICWA to provide a statutorily preferred placement.
The tribe also argues that the superior court erred in finding that OCS made adequate efforts under ICWA to provide the children with a statutorily preferred placement. The tribe does not assert that this argument depends on the application of the prevailing social and cultural standards of the Indian community.
Four out of the eight placements for Morris and Sara during the six years since their removal from their parents have been with relatives.66 OCS compiled a list of eighteen potential relative placements. It contacted the tribes thirty-two times, not including contacts with individual relatives and the biological parents. Ms. Short, the J. children‘s original OCS social worker, testified that she exhausted efforts to find relative placements before placing the children with a non-Native family. Ms. Weston-Smith, the OCS worker assigned to the case in April 2003, testified that the tribes were informed at all times that OCS was looking for permanent placement. She also testified that OCS was guided by prevailing Yup‘ik social and cultural standards in its search for a suitable placement meeting the preference criteria.
The children‘s placement history also supports a finding that OCS made active efforts to find preferred placements. OCS initially placed Morris and Sara with a relative in Bethel but soon removed them after discovering that the relative had a history with child protective services. The children were then placed with relatives in Kasigluk for eighteen months before returning to their biological parents. After removal from their biological parents’ care, Joel‘s medical problems required him to live close to a hospital, and he was placed in a non-Native foster home. Morris and Sara were placed with relatives until reports of harm required their removal and eventual placement with Joel under Matilda‘s care.
There was evidence that while the children were in Matilda‘s care, OCS continued to make substantial efforts to find relative placements. OCS considered and rejected placements with both paternal and maternal grandparents because the biological parents and other family members with criminal histories were living in those households. OCS eventually placed the children with relatives Jake and Ruby B., but had to remove them when Joel had to be hospitalized and Ruby B. informed OCS that the J. children, together with five other children living with them, were too much work for her. Other relatives were also disqualified for placement based on either their own criminal history or the criminal history of an adult living in the home.
OCS asked Frank and Tonya B. to be a temporary placement in late 2000, but they declined, stating that it would be too much work. Sometime between January and August of 2001, OCS contacted them again to discuss permanent placement, but Tonya again stated they did not want the J. children. The tribe‘s contention that OCS‘s failure to initiate more contact with Frank and Tonya after being rebuffed twice shows a lack of adequate efforts under ICWA is unconvincing. In January 2002 OCS contacted the tribe and was informed by counsel that all relative and tribal placements had been exhausted.
Based on this evidence, the superior court did not clearly err in finding that OCS made active efforts to find a statutorily preferred placement for the children.
4. The superior court did not err in finding that Matilda could adequately meet the children‘s cultural needs in Bethel.
Finally, the tribe assigns error to the superior court‘s finding that Matilda
The tribe offered Mark John‘s expert testimony about the transmission of Yup‘ik cultural values. He testified that a child growing up in Bethel could learn Yup‘ik culture and values with exposure to language and Yup‘ik elders, and adult male Yup‘ik role models for the boys. Sara is enrolled in Yup‘ik immersion school and speaks Yup‘ik better than many of her Yup‘ik friends at school. Morris‘s school has Yup‘ik classes two to three times a week and tries to incorporate Yup‘ik culture into the curriculum. Matilda has spoken to a number of Yup‘ik coworkers who are willing to serve as male role models for the boys, including their uncle.
John also testified that a non-Yup‘ik family would have to make an extra effort, and would need a connection with Yup‘ik families willing to help, including taking the children to fish camp. Matilda has contacted the Kasigluk Tribal Council about the best way to maintain the children‘s cultural awareness through cultural activities. Matilda has also evinced willingness to maintain contact between the J. children and their relatives. The children currently have both non-Native and Yup‘ik friends. They regularly attended fish camp in the summer before trial, and Sara has gone berry-picking. They also participate in Yup‘ik dance.
The parties presented conflicting expert testimony about whether the children‘s cultural needs could be met in Bethel. Dr. Roll testified that the children could experience several problems relating to cultural identity, including erosion of language skills, identity confusion, cultural diffusion, and identification with the aggressor. But Dr. Roll had neither visited Bethel nor examined the J. children. Dr. MacIan is a clinical psychologist familiar with Morris and Sara, the J. children‘s school, history, and home. Dr. MacIan testified that many problems with cultural identity arise when a child has had no contact with the non-dominant culture and then has to deal with negative stereotypes after realizing that he or she belongs to that group. Dr. MacIan testified that this was not a danger for the J. children, who understand that they are Yup‘ik. The superior court evidently credited Dr. MacIan‘s testimony. Its determination of credibility between competing experts is a factual finding, which we review for clear error.68 We are not “left with a definite and firm conviction that a mistake has been made”69 by the trial court in crediting Dr. MacIan‘s testimony.
The tribe makes much of Matilda‘s testimony to the effect that the children cannot truly understand their culture under her tutelage and with limited opportunity to participate in village life. We interpret this to be merely a recognition that this will be a difficult process and that while she can provide some cultural opportunities, she cannot recreate the cultural experience of living in a Yup‘ik village. But this does not mean that she will be unable to meet the children‘s
In Adoption of N.P.S.,70 we held that good cause existed to deviate from ICWA‘s preferences despite cultural disadvantages when the non-preferred placement “is minimally capable of providing for [the child‘s] cultural needs.”71 Matilda is much better suited to meet the children‘s cultural needs than the placement challenged in N.P.S. There, we held that regular contact with extended family and time spent in the village was sufficient to “give [the child] an understanding of the lifestyle of the Yup‘ik culture as well as promot[e] a positive image of himself as an Alaskan Native.”72 Matilda, in contrast, has demonstrated the ability to utilize a range of resources to introduce the children to their Yup‘ik culture.
The superior court did not clearly err in finding that Matilda could adequately meet the children‘s cultural needs in Bethel.
IV. CONCLUSION
For these reasons, we AFFIRM the superior court‘s finding that good cause existed to deviate from the statutory preferences and its decrees of adoption for the J. children.
BRYNER, Chief Justice, concurring.
BRYNER, Chief Justice, concurring.
I disagree with the opinion‘s reasoning and its conclusion that ICWA
ICWA‘s preference requirements are spelled out in
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child‘s extended family; (2) other members of the Indian child‘s tribe; or (3) other Indian families.1
ICWA
Today‘s opinion advances no sound basis in the text or congressional history of
The opinion similarly posits that
The opinion tries to distance
The opinion also suggests that
Hence,
The court‘s reliance on ICWA‘s congressional history strikes me as equally unpersuasive. It seems anomalous to venture that a Congress concerned with stopping an exodus of Indian children to non-Indian homes would seek to cure the problem by adopting a good-cause provision that allowed Indian values to govern Indian-home placements but left states free to continue using non-Indian values in deciding when to move Indian children into non-Indian homes. The interpretation of
The opinion attempts to repair this flaw in its own theory by shaping
The opinion nonetheless concedes that, if literally applied, this interpretation “would create a loophole[ ] eviscerating the protections of ICWA.”12 As the court itself admits,
Applying “white, middle-class” standards to the suitability inquiry as an aspect of the good cause determination could effectively read the preference requirements and the prevailing social and cultural standards of the Indian community out of the statute. This would occur if courts, while determining whether there is good cause for deviating from the statutorily preferred placements, could apply white, middle-class standards to examine or reexamine the suitability of a Native or relative placement deemed suitable under prevailing Indian social and cultural standards. This is the very problem ICWA was enacted to eliminate.13
To prevent Indian children from the very dangers that led Congress to enact ICWA, the opinion declares an exception to its own rule: after broadly professing that “[t]he existence of a suitable preferred placement precludes any consideration of a non-preferred placement unless good cause exists;”14 it insists that “in determining whether good cause exists, ‘white, middle-class’ standards may not be applied to reassess the suitability of a preferred placement.”15
that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
... that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
... that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.18
It is true that the BIA Guidelines do mention the need to consider issues of “special needs” in making good-cause decisions;19 but nothing in the Guidelines suggests that “suitability” and “special needs” issues should be treated as mutually exclusive considerations relating to different kinds of placement decisions. To the contrary, the Guidelines mention both special needs and the availability of suitable Indian homes as factors to consider in making good-cause determinations. By referring to both criteria in discussing the determination of good cause, the Guidelines plainly indicate that both suitability and special needs play an integral role in determining the existence of good cause.20 Conversely, ICWA
Common sense, if nothing else, dictates the same conclusion. As a practical matter, a child‘s special needs are an indispensable component of any decision concerning a potential custodian‘s suitability for a specific adoptive placement. For purposes of establishing suitability, a proposed adoptive parent‘s abilities and the adoptive child‘s needs
Here, for example, it would seem utterly unrealistic to imagine that a meaningful evaluation of Frank and Tonya B.‘s suitability to become adoptive parents for Sara, Morris, and Joel could be prepared without carefully examining the children‘s needs; and it seems equally unimaginable that a good-cause inquiry could avoid redetermining issues concerning Frank and Tonya B.‘s suitability to become adoptive parents of these children if the inquiry ultimately concluded, as it did here, that Matilda was the only available adoptive custodian who was capable of meeting their needs.
Today‘s opinion confirms this point. The superior court‘s decision in this case understandably took a different approach to good cause than the one newly announced in today‘s opinion. The trial court viewed the basic question before it as being “whether [Matilda] is the best candidate—among the families deserving to be the children‘s adoptive family—to provide for the emotional and educational needs of the children.” In other words, the superior court saw the good-cause inquiry as requiring it to find the most suitable parents. Yet in affirming the trial court‘s ruling, today‘s opinion does not fault that court for deciding good cause by comparing the suitability of all the available adoptive placements. To the contrary, despite its repeated references to “special needs,” what the opinion basically holds is that Matilda appears to be the only suitable parent for Sara, Morris, and Joel.
The opinion‘s unrealistic dichotomy between suitability and special needs is not its only practical problem. Its approach is also troubling because it will invite courts to completely bypass Indian community values in any adoptive placement decision involving a non-preferred placement. Using the opinion‘s approach, courts in such cases could routinely assume that all proposed Indian placements would be “suitable” in the abstract sense; courts could then move directly to the good-cause determination and, applying white-middle class values, find the non-Indian custodian to be the only adoptive placement actually suitable for the specific children at issue. After all, if suitability for parenting hypothetical children can be determined without considering special needs, then specific children will always have “special needs.”
This is not what ICWA requires.
But I nevertheless disagree with the tribe as to the meaning of
I disagree with the tribe‘s assumption. So does today‘s opinion, of course. But unlike the opinion, I think that the problem can best be resolved by reading
Here, the tribe‘s nearly exclusive reliance on evidence suggesting that Yup‘ik standards would always require a Yup‘ik placement reflects a basic misunderstanding of the meaning of
As I see it,
In this case, compelling evidence was presented to support a finding of good cause to deviate from the placement preference. The superior court also heard abundant evidence, including both lay and expert testimony, concerning prevailing Yup‘ik cultural and social standards. In considering this evidence, the court rejected testimony that simply refused to accept any possibility that a non-preferred adoptive placement would ever be suitable under prevailing Yup‘ik norms. The court also rejected the case-specific conclusions reached by the tribe‘s main expert witness, Dr. Samuel Roll; it declined to credit them because Dr. Roll had never actually worked in Alaska Native villages or with Alaska Native children and because the court found his conclusions unpersuasive in light of other testimony presented at trial and the court‘s own accumulated experience. But despite
The court also carefully considered and balanced all of the other evidence bearing on the issue of Yup‘ik social and cultural standards. And with this evidence in mind, in a thoughtful and comprehensive decision spanning forty pages, the court thoroughly evaluated all relevant aspects of good cause, including the suitability of Frank and Tonya B. to become the children‘s adoptive parents, the availability of other suitable preferred placements, Matilda‘s suitability as an adoptive parent for the children, her ability to meet the children‘s special needs, and her ability to meet their Yup‘ik cultural needs. The court ultimately found good cause to deviate from the placement preferences and concluded that a non-preferred placement would serve the children‘s best interests. The court essentially concluded that Matilda was the only available placement capable of providing a home for the children without subjecting them to a risk of serious physical and emotional harm; in stating its conclusion, it specifically found that the risk of harm from any other placement would be clearly unacceptable “in either the Western or Yup‘ik tradition.”
Based on my own understanding of ICWA‘s placement preference requirements, as explained above, I would conclude that the superior court‘s decision relied on a correct understanding of the applicable law. I agree with today‘s opinion in concluding that, on appeal, the tribe has not shown that any of the trial court‘s central factual findings are clearly erroneous or that the conclusions the trial court reached from those findings amount to an abuse of discretion. On this basis, despite disagreeing with the opinion‘s view of the law, I concur in affirming the superior court‘s judgment.
No. S-11639.
Supreme Court of Alaska.
Nov. 10, 2005.