Jw v. RjJw v. Rj
EASTAUGH, Justice.
I. INTRODUCTION
The father and stepfather of a minor child are Alaska Natives who each seek custody of the child following her mother‘s death. The superior court awarded joint legal custody to the contestants, primary physical custody to the stepfather, and visitation to the father. While the father‘s appeal from that judgment was pending, the superior court modified the judgment and awarded physical and legal custody to the father. Because the child‘s tribe was not given an opportunity to intervene and the initial judgment was not supported by fact findings satisfying the test that controls a custody dispute between a parent and non-parent, we remand for further findings and for proceedings consistent with the Indian Child Welfare Act.
II. FACTS AND PROCEEDINGS
S.R. was born in 1988. E.J. was her mother and J.W. was her father. S.R. had lived since infancy with her mother and her stepfather, R.J. E.J. and R.J. married in 1989. J.W. saw S.R. on her first birthday and did not see her again until August 1995. In 1995 R.J., the stepfather, filed for divorce from E.J.,1 and sought legal and primary physical custody of S.R. J.W. contested custody. E.J., S.R.‘s mother, had custody of S.R. until E.J. died in March 1996. The custody contest between the father, J.W., and the stepfather, R.J., then became the only remaining dispute.
Following E.J.‘s death, the superior court gave the stepfather temporary custody, with visitation to the father. The superior court conducted a custody trial and in August 1996 entered judgment awarding shared legal custody to the father and stepfather, primary physical custody to the stepfather, and visitation to the father. The father appealed from that judgment, arguing that the court erred in failing to apply the Indian Child Welfare Act and that there was insufficient evidence under the state law standard to award custody to a non-parent. The father did not seek a stay when he filed his appeal.
Relevant events occurred after entry of the 1996 judgment. The state took custody of S.R. from September 4, 1996, to December 4, 1996, following a report that the stepfather had previously abused S.R. sexually. The state placed S.R. with her aunt in Fairbanks during this three-month period. S.R. was returned to her stepfather in Birch Creek on December 4, and remained there until December 18, when she traveled to Fairbanks for Christmas visitation with her father.
On January 9, 1997, the father, J.W., moved in the superior court for a stay pending appeal, alleging that the stepfather had sexually abused the child, and that she was at risk if she returned to his custody. J.W. also moved for expedited consideration.
At a January 13, 1997, status hearing, the superior court orally denied the father‘s stay motion, but set a hearing for January 16 to determine “whether or not there are circumstances that now exist that place [S.R.] at risk in going back to Birch Creek.”
On January 16 the father moved to modify custody. The superior court heard testimony on January 16 and 17 from the doctor who had examined S.R. in August 1996, the Alaska State Trooper who had interviewed her, and the two contestants. The superior court also accepted the report of the guardian ad litem (GAL). On January 17 the superior court issued an order modifying the August 1996 judgment. The order found that “[c]onsiderable confusion exists as to whether [S.R.] was ever sexually molested and, if so, when and by whom.” The order also stated that “[t]he evidence before this court at this time does not suggest that [S.R.] is currently at risk in the [stepfather‘s] household.” Nonetheless, the order found that a change of circumstances had occurred since the 1996 trial, and permanently modified the judgment by giving primary physical custody to S.R.‘s father, with visitation to S.R.‘s stepfather.
Several months later, over the stepfather‘s objection, the court ordered an in camera interview with S.R. The superior court sua sponte again permanently modified the custody order on May 15, 1997, giving sole legal custody to the father and decreasing the stepfather‘s visitation. The stepfather, R.J., appeals both 1997 modification orders on the theory that procedural errors denied him due process of law.
We here consider the father‘s appeal from the 1996 judgment and the stepfather‘s appeal from the 1997 modifications.
III. DISCUSSION
A. Standard of Review
We will disturb the trial court‘s resolution of child custody issues only “if the record shows an abuse of discretion or if controlling findings of fact are clearly erroneous.” House v. House, 779 P.2d 1204, 1207 (Alaska 1989) (citing Faro v. Faro, 579 P.2d 1377, 1379 (Alaska 1978)). Whether factual findings are sufficient to support an award of custody to a non-parent is a legal issue to which we apply our independent judgment. R.R. v. State, 919 P.2d 754, 755 n. 1 (Alaska 1996).
The applicability of the Indian Child Welfare Act of 1978 to this proceeding is a question of law subject to our independent judgment. In re T.N.F., 781 P.2d 973, 975 (Alaska 1989). We will “adopt the rule of law that is most persuasive in light of precedent, reason and policy.” Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
B. The Post-Judgment Modification Orders
The stepfather, R.J., argues that the superior court erred in 1997 by: (1) entering the order for expedited consideration without allowing him a reasonable time to oppose the motion; (2) amending the order for expedited consideration based on an ex parte contact with J.W.‘s counsel; (3) modifying the judgment pending the outcome of a motion for a stay; (4) treating the motion for stay on appeal as a motion for modification; (5) admitting into evidence Dr. Marvin Bergeson‘s testimony about the child‘s identification of the perpetrator, Dr. Bergeson‘s report, and the GAL‘s testimony about the child‘s statements; (6) basing the January 1997 modification on issues not identified by the superior court before the hearing; and (7) permanently modifying the 1996 judgment without proper notice and hearing.
The father, J.W., argues not that the orders were entered without procedural error, but that any errors are mooted by correcting
Our resolution of issues concerning the August 1996 judgment moots any need to consider questions about the procedural adequacy of the 1997 orders.2
C. The August 1996 Judgment
1. Was it an abuse of discretion to award custody of S.R. to her stepfather, R.J.?
The father, J.W., argues that the superior court improperly applied the Alaska standard for resolving a custody dispute between a parent and non-parent. He reasons that under Turner v. Pannick, 540 P.2d 1051 (Alaska 1975), and Carter v. Novotny, 779 P.2d 1195 (Alaska 1989), the superior court must find that the parent is unfit or that it would be harmful to the child‘s welfare to be placed with the parent before the non-parent is awarded custody. He claims that there is insufficient evidence to make this finding. The stepfather, R.J., argues that the superior court correctly applied the Turner standard and “clearly” found that “placement outside [R.J.]‘s home would be detrimental to the child....”
Turner v. Pannick stands for the proposition that parental custody is preferable and only to be refused where it is clearly detrimental to the child. 540 P.2d at 1055. “Unless the superior court determines that the parent is unfit or has abandoned the child, or that the welfare of the child requires that the non-parent receive custody, the parent must be awarded custody.”3 Id. We reaffirmed these principles in B.J. v. J.D., 950 P.2d 113 (Alaska 1997); Rooney v. Rooney, 914 P.2d 212, 216 n. 8 (Alaska 1996); Buness v. Gillen, 781 P.2d 985, 988-89 (Alaska 1989); Carter, 779 P.2d at 1197; and Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977).
We agree with the father that the 1996 judgment is not supported by the fact findings necessary for an award of custody to a non-parent. The superior court recited the Turner standard, as set out in Carter, and also cited to Buness, but found that S.R.‘s “psychological and emotional development, as well as her overall welfare, requires that this relationship [with her stepfather] not be traumatically interrupted.” The superior court based this finding on the fact that S.R. had lived most of her life with her stepfather, that he had become her psychological father in many ways, and that he could provide her a stable home. The superior court found that S.R.‘s father had not known her for most of her life and that they had just recently become reacquainted. Yet the superior court also found that both men are “fit parents who desire the best for [S.R.].” After determining that S.R.‘s welfare required a parental role for the stepfather, the superior court then seemingly applied the statutory factors under
There was no express finding that it would be detrimental for S.R. to be placed in her natural father‘s custody.4 Although use of the word “detrimental” is not mandatory, the findings had to demonstrate that the Turner detriment standard was being applied. The court instead appears to have applied the best interest standard set out in
2. Does the Indian Child Welfare Act apply here?
It is undisputed that S.R., her father, and her stepfather are Alaska Natives. The August 1996 order, citing
The father, J.W., argues that it was error not to apply the Indian Child Welfare Act (ICWA) to the custody proceedings. He argues that before the superior court could place the child with her stepfather, it had to determine pursuant to
The stepfather, R.J., argues that ICWA does not apply. He alternatively asserts, however, that because he qualifies as S.R.‘s
ICWA‘s protections, if applicable, include the clear and convincing burden of proof for removing an Indian child from a parent or Indian custodian8 and a requirement that the child‘s Indian tribe be allowed to intervene in the proceeding.9
Congress was also concerned with state action, including judicial action, in custody decisions involving Indian children. See
ICWA applies to “child custody proceedings” involving an Indian child.
any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.
It also appears that this case involves “an action removing an Indian child from its parent or Indian custodian.” All proceedings thus far involved the potential, if not actual, removal of the child from the father. Although he did not previously have physical custody, the proceedings still removed the child from the father‘s legal custody. See In re Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925, 937 (1988) (stating that phrase, “from whose custody such child was removed,” in
The stepfather argues that ICWA does not apply because its purpose is “to restrict placements outside the Indian home and away from the existing family thereby causing the breakup of the Indian family.”13 This reading of ICWA‘s purpose is too narrow. As we noted above, one purpose of ICWA is to permit tribal participation in state custody proceedings. This purpose is advanced by permitting the child‘s tribe to express its preference or comment on the relative fitness of the contestants. This opportunity increases the likelihood non-Indians will recognize and appreciate cultural and social values thought by the tribe to be important in resolving the custody dispute.
Similar proceedings have been held to be foster care placements. The New Mexico Court of Appeals found that the placement of children after a parent‘s death was a foster care proceeding under ICWA because the children had not been placed with their aunt, who was their Indian custodian under tribal custom, and therefore were “removed” from her. In re Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451, 453 (N.M.App. 1993). Other courts, while not specifically addressing the “removal” issue, have held that ICWA applied to custody disputes between parents and non-parents. See In re Custody of A.K.H., 502 N.W.2d 790, 792-93 (Minn.App. 1993) (finding that custody dispute between parents and grandparents was a foster care proceeding and that ICWA applied); In re Custody of S.B.R., 43 Wash. App. 622, 719 P.2d 154, 156 (1986) (same).
The stepfather also argues that this dispute falls within the exclusion to ICWA for custody disputes between parents in a divorce proceeding.
The child custody proceedings to which ICWA applies do “not include a placement based ... upon an award, in a divorce proceeding, of custody to one of the parents.”
We conclude that ICWA applied to the proceedings below. Because the April 1996 interim custody order and the August 1996 judgment violated the provisions of
The effects of this conclusion are not completely clear. Certainly the superior court proceedings removed the child from the legal custody of a parent or Indian custodian without giving the child‘s tribe an opportunity to participate. As a result, any findings weighing the fitness of the contestants were made without benefit of the tribe‘s comments. That deficiency can be remedied only if the proper tribe is given notice and the opportunity to participate on remand.
The father invokes
It is unclear whether the stepfather is an Indian custodian. Although the stepfather alternatively argued below that he qualified as the child‘s Indian custodian, he does not appear to have sought a finding of fact to that effect. On remand, the superior court must determine whether the stepfather was S.R.‘s “Indian custodian” within the meaning of
If the stepfather does not establish that he was the child‘s Indian custodian, he has no arguable right to invoke the ICWA heightened standard of proof. Instead, the father will have the benefit of
A finding on remand that the stepfather is the child‘s Indian custodian will squarely raise the legal question whether
The purposes behind ICWA are consistent with restricting
IV. CONCLUSION
Because the 1996 judgment was not based on the fact findings required by state law for awarding custody of the child to the stepfather, and because the provisions of ICWA were not applied in the proceedings below, we VACATE the May 15, 1997, Second Modification of Judgment and the August 28, 1996, Findings of Facts, Conclusions of Law, and Judgment, and REMAND for further proceedings to determine under state law whether placement with the father would be clearly detrimental to S.R. Because ICWA applies to this dispute, the child‘s tribe must be given an opportunity to participate in those proceedings and offer evidence on the fitness of the contestants and on the issue of whether the stepfather, R.J., is an Indian custodian. Any such evidence may be considered in applying the Turner standard.
If the superior court concludes under Turner that it would be clearly detrimental to the child to return her to her father, the court will next have to determine whether the father is entitled to the benefit of the “clear and convincing” standard of
Notes
“In order to satisfy the ‘welfare of the child’ requirement, the non-parent must show that it clearly would be detrimental to the child to permit the parent to have custody.” Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975). The nonparent has the burden of proving the detriment by a preponderance of the evidence. Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977).
Both concurring opinions in Turner expressed reservations about courts’ ability to distinguish between a “welfare of the child” test and a “best interests” test. See Turner, 540 P.2d at 1055 (Dimond, J., concurring); Id. at 1056 (Rabinowitz, C.J., concurring). Reservations about how the Turner standard and the parental preference are applied have been expressed on at least one occasion. See Matson v. Matson, 639 P.2d 298, 302 & n. 4 (Alaska 1982) (concern that the categorization between parent and non-parent may be undesirable) (Compton, J., dissenting). It has not been necessary for us to consider parties’ arguments for a different standard. See, e.g., Hayes v. Hayes, 922 P.2d 896, 898 (Alaska 1996). The stepfather, R.J., does not argue that we should overturn Turner; he instead argues that the findings satisfied the Turner standard as refined in subsequent decisions. He argues that Turner “may be satisfied by a showing that placement outside the non-parent‘s home may be detrimental to the child regardless of the fitness of the biological parent.”
The Native Village of Birch Creek (NVBC) moved to intervene in another proceeding concerning S.R., and filed with its motion a 1996 Dendu Gwich‘in Tribal Council resolution declaring S.R. to be a tribal member of NVBC. NVBC never moved to intervene in the present custody dispute.
The Native Village of Fort Yukon (NVFY) moved to intervene in the present custody dispute in 1997, alleging that it was S.R.‘s tribe. After initially granting the motion, the superior court ultimately denied it on the ground “the child ... is a member of [NVBC] and is not a member of [NVFY].” NVFY did not appeal from the denial of its intervention motion.
No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child‘s tribe shall have a right to intervene at any point in the proceeding.
R.J., the stepfather, similarly argues that ICWA does not apply to this case because it is an “intra-family custody dispute.” These arguments originate in In re Bertelson, 189 Mont. 524, 617 P.2d 121, 125-26 (1980), which held that ICWA did not apply to a custody dispute between a parent and the grandparents because it was not intended to apply to “internal family disputes.” We declined to follow Bertelson in A.B.M. v. M.H., 651 P.2d 1170, 1173 n. 6 (Alaska 1982).
The stepfather also argues that applying ICWA for the father‘s benefit “would cause the absurd result” of removing S.R. from her existing Indian family and from the custody of her Indian custodian.
“Extended family member” shall be as defined by the law or custom of the Indian child‘s tribe or, in absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child‘s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.
[A]ny parent or Indian custodian from whose custody such child was removed ... may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.
[A]ny Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such a child.
The stepfather may be the child‘s Indian custodian under tribal law or custom, or because the mother transferred physical care, custody, and control of the child to the stepfather. The stepfather may also be an Indian custodian under state law, but because the April 1996 order and August 1996 judgment are vacated, the court should not consider whether he was an Indian custodian under those orders.