as: 704 P.2d 774)
Court of Alaska.
of Alaska, Appellee.
Aug. 23, 1985.
guidelines for state courts in Indian child custody proceedings are not
binding on state courts but are considered instructive.
on custody of Indian child was emergency custody proceeding under 25 U.S.C.A.
§ 1922, where voluntary placement agreement for child had expired,
mother had failed to retrieve child, and mother was nowhere to be found;
at that time child became abandoned child, and thus "child
in need of aid" under
AS 47.10.010(a)(2)(A), requiring emergency intervention under § 1922.
Indian Child Welfare Act of 1978, § 112, 25 U.S.C.A. § 1922.
in which State's temporary custody of Indian child was extended to allow
time for parents to be served with notice before trial on adjudication
of child in need of aid was an emergency custody proceeding falling under
25 U.S.C.A. § 1922, where voluntary placement agreement for
child had expired, mother had failed to retrieve her son, mother could
not be reached for hearing on temporary custody approximately one month
earlier, and extension of temporary custody to State would have expired
on following day. Indian Child Welfare Act of 1978, § 112,
25 U.S.C.A. § 1922.
requirements of 25 U.S.C.A. § 1912(a), providing that no foster
proceeding of Indian child can be held unless parent has been given ten
days notice by registered mail or, if parent cannot be found, Secretary
of State has been notified, were not applicable to mother, and she was
not deprived of her right to counsel under the Indian Child Welfare Act
by State's failure to notify her of two temporary custody proceedings
in which temporary custody was awarded to State, where the proceedings
were emergency hearings. Indian Child Welfare Act of 1978, §§ 102(a),
112, 25 U.S.C.A. §§ 1912(a), 1922; U.S.C.A. Const.Amends.
State was required to notify mother of temporary custody proceedings relating
to her Indian child, the Secretary of State should have been given notice
of hearings if mother could not be found. Indian Child Welfare Act
of 1978, § 102(a), 25 U.S.C.A. § 1912(a); U.S.C.A.
Const.Amends. 5, 14.
the irresponsible are entitled to due process, including notice to mother
of temporary custody proceedings involving her Indian child, as required
by 25 U.S.C.A. § 1912(a). Indian Child Welfare Act of
1978, § 102(a), 25 U.S.C.A. § 1912(a); U.S.C.A.
Const.Amends. 5, 14.
of whether superior court committed reversible error in not declining
jurisdiction over hearing at which Indian mother's parental rights to
her Indian child were terminated would not be considered, where mother
never requested superior court to rule on jurisdictional issues she specified
as error on appeal. Indian Child Welfare Act of 1978, §§ 103,
103(a), 110, 25 U.S.C.A. §§ 1913, 1913(a), 1920.
foster care placement agreement Indian mother signed for placement of
Indian child was not subject to Indian Child Welfare Act requirements
for written consent agreement found in 25 U.S.C.A. § 1913(a);
agreement entered into by mother did not fall into the Act's definition
of "foster care placement" or other provisions of 25 U.S.C.A.
§ 1903(1), as mother could have child returned to her "at
any time." Indian Child Welfare Act of 1978, §§ 4(1),
103(a), 25 U.S.C.A. §§ 1903(1), 1913(a).
foster care placement agreement signed by Indian mother for placement
of Indian child, which specifically stated beginning and ending dates
of placement period, and provided that agreement was voluntary and that
mother had right to regain custody of child at any time, fulfilled federal
guidelines' suggestions for voluntary placement agreements of Indian children,
which recommended parties explicitly provide for return of child upon
written placement agreement signed by Indian mother for placement of her
Indian child did not have to satisfy requirements of 25 U.S.C.A. § 1913,
providing for specific means of execution and certification of such agreements,
where agreement signed by mother was not subject to provisions of the
Indian Child Welfare Act [25 U.S.C.A. § 1901 et seq.]; therefore,
the agreement could not furnish a basis for superior court to return child
to mother after declining jurisdiction under 25 U.S.C.A. § 1920,
providing that court shall decline jurisdiction over custody proceeding
petition where petitioner has improperly removed Indian child from custody
of parent. Indian Child Welfare Act of 1978, §§ 2
et seq., 103, 110, 25 U.S.C.A. §§ 1901 et seq., 1913, 1920.
removal or retention of Indian child occurred "without the sanction
of law," for purposes of causing state court to decline jurisdiction
on ground that child had been improperly removed from custody of Indian
parent under 25 U.S.C.A. § 1920, where the Division of Family
and Youth Services took case to superior court promptly at expiration
of voluntary placement agreement between mother
and the Division and again at end of 30-day temporary custody period granted
to the Division by the court, and superior court had adequate basis for
its second order extending temporary custody, because it had State's supporting
memorandum regarding mother's knowledge that child was in custody and
her failure to either visit child or contact the Division. Indian
Child Welfare Act of 1978, § 110, 25 U.S.C.A. § 1920.
procedural and jurisdictional defects in temporary custody hearings on
placement of Indian child with the State were cured by subsequent procedurally
correct final dispositional hearing in which Indian mother's parental
rights were terminated, which hearing occurred five months after mother
was appointed counsel and three months after her counsel stipulated her
child was a child in need of aid.
proceedings which fall under the Indian Child Welfare Act [25 U.S.C.A.
§ 1901 et seq.], court's determination terminating parental
rights to Indian child must be supported by evidence beyond reasonable
doubt that continued custody of child by parent is likely to result in
serious emotional or physical damage to child. Indian Child Welfare
Act of 1978, §§ 2 et seq., 102(f), 25 U.S.C.A. §§ 1901
et seq., 1912(f).
minor is a "child in need of aid" under AS 47.10.010(a)(2)(A)
if he has been physically abandoned by his parents, or by one parent if
the other parent's rights have been voluntarily relinquished.
for abandonment of child by parents, for purposes of determining
minor to be "child in need of aid" under AS
47.10.010(a)(2)(A) has two prongs; whether parents' conduct evidenced disregard for
parental obligation, and whether that disregard led to destruction of
for purposes of establishing that minor is "child in need
of aid" under AS 47.10.010(a)(2)(A), is not determined by parent's
subjective intent, but by objective evidence of parental conduct.
court's finding of abandonment justifying determination that minor is "child
in need of aid" under AS 47.10.010(a)(2)(A), will not be
overturned on review unless it is clearly erroneous.
that total amount of time Indian mother spent visiting her
Indian child between October 1983 and June 1984 was a
little over two hours, with mother
missing or canceling visits on several occasions, that mother was
unable to provide court with explanation of why she failed
to visit her son, that expert witnesses concluded lack of
contact had destroyed parent-child bond, and that experts agreed there
was little likelihood mother's behavior would change and serious physical
or emotional damage would occur to child if he were
returned to mother's custody, supported decision to terminate mother's parental
rights on basis of her abandonment of child. Indian Child
Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f);
AS 47.10.010(a)(2)(A), 47.10.080(c)(3).
James M. Hackett, Fairbanks, for appellant.
James H. Cannon, Asst. Public Defender, Fairbanks, Dana Fabe, Public
Defender, Anchorage, guardian ad litem.
Myra M. Munson, Asst. Atty. Gen., Fairbanks, Norman C. Gorsuch,
Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
RABINOWITZ, Chief Justice.
R.S. seeks the return of her infant child, alleging that
the various proceedings
leading to the superior court's termination of her parental rights
violated the Indian Child Welfare Act and state law in
that she was deprived of her right to counsel. We
hold that the superior court's judgment should be affirmed on
the grounds that the evidence demonstrates beyond a reasonable doubt
that the child was abandoned by its mother and that
there were no jurisdictional or procedural defects in the proceedings
leading to the parental rights termination.
D.E.D. is an Indian child within the meaning of the
Indian Child Welfare Act (ICWA). 25 U.S.C. § 1901
He was born on September 27, 1983. R.S., an Inupiat
Eskimo, is D.E.D.'s mother.
D.E.D.'s father, D.D., initially denied paternity and later testified that
he was willing to relinquish his paternal rights.
When D.E.D. was one month old, R.S. sought assistance from
the Division of Family and Youth Services (DFYS). She met
with DFYS social worker Dorothy Hafler and told Hafler that
she was unable to care for D.E.D. because she had
no place to live and no money. R.S. executed a
voluntary placement agreement which allowed the state to provide temporary
foster care for D.E.D. In addition to specifically stating the
beginning and ending dates of the placement period (October 27
to November 27, 1983), the agreement provided that R.S.
could resume custody at any time. Hafler explained the agreement
to R.S. and specifically indicated to R.S. that she could
resume custody on demand. Hafler also suggested a variety of
services to R.S.
R.S. told Hafler that she intended to use the agreement
for a few days or a week. R.S. was given
the phone number of the foster home,
[FN2] and she was encouraged to visit. Two visits were
arranged, but R.S. never came to see her son. R.S.
did, however, call the foster home at 3:00 and 4:00
in the morning, while intoxicated, and so frequently that the
foster parents asked that D.E.D. be removed.
The foster mother was also Native American, although not Inupiat.
R.S. did not resume custody at the expiration of the
30 day voluntary placement and Hafler was unable to locate
[FN3] Hafler assumed emergency custody pursuant to AS 47.10.142 on
November 27, 1983, the date the placement expired.
[FN4] Hafler testified that she did so because she didn't
know how to reach R.S.
Despite repeated requests, R.S. never gave Hafler a good address
or telephone number. She reported 16 addresses to her probation
1982 and 1984.
AS 47.10.142(a) provides:
Department of Health and Social Services may take emergency custody
of a minor upon discovering ... (1) the minor has
been abandoned; ....
Hafler petitioned the superior court for temporary custody of D.E.D.
on November 29, 1983. Her petition explained that R.S. had
neither called for nor picked up D.E.D. and that DFYS
had been unable to locate D.E.D.'s parents. The superior court
granted DFYS temporary custody until December 28.
On December 5, 1983, Hafler sent a note telling R.S.
that Hafler would have to take custody of D.E.D. because
she had not heard from R.S. The note stated in
will need to help you make good plans for yourself
before you can have him back.... But you cannot take
him home until after we make a plan.
On December 7, 1983, the State moved ex parte for
the appointment of a guardian ad litem. An attorney was
appointed for D.E.D. on December 8, 1983.
case was assigned to DFYS social worker Ernie Collins about
December 12, 1983. Collins testified that he spoke to R.S.
on December 27 and
that she made several appointments to see him which she
did not keep. R.S. succeeded in meeting with Collins on
January 10, 1984. He referred her to pretrial services for
appointment of counsel.
On December 27, 1983, the superior court extended the State's
temporary custody to March 9, 1984, to allow time for
the parents to be served with notice before trial. R.S.
did not file an objection to the extension. On January
5, 1984, a petition for adjudication as a child in
need of aid was filed.
R.S. was served with a summons on January 24, 1984.
The face of the summons stated that she had the
right to be represented by an attorney and if she
could not afford one, she could ask the court to
appoint one for her at state expense. When R.S. appeared
in court on March 9, 1984, the court appointed counsel
from the bench.
On February 10, 1984, Debra McKelvie, a Fairbanks Native Association
(FNA) counselor, told R.S. that it was important she obtain
an attorney. On February 17, 1984, McKelvie actually took R.S.
from FNA to the court building and reiterated the importance
of getting an attorney, but R.S. said she could do
so herself. On March 7, 1984, McKelvie repeated that it
was important that R.S. receive representation and R.S. responded
that she chose not to be represented.
Temporary custody was extended on March 16, 1984 and a
stipulation for adjudication of child in need of aid, signed
by all parties, their counsel and the guardian ad litem,
was filed on May 11, 1984. The stipulation specifically stated
that R.S. and D.D. were aware that the court could
terminate their parental rights at the hearing.
A pretrial conference was held on June 21, 1983 in
which no procedural or substantive issues were raised by R.S.'s
attorney. However, on the morning of the trial, R.S.'s counsel
served the parties with a petition requesting return of D.E.D.
The State called numerous witnesses, three of whom qualified as
experts. The three experts agreed that the parent-child bond between
R.S. and D.E.D. was effectively destroyed by her failure to
visit her son, that given her history and lack of
response to the extensive services offered her,
[FN7] R.S.'s behavior was likely to continue, and that D.E.D.
was likely to suffer serious physical or emotional damage if
returned to R.S.'s custody. R.S. called no witnesses.
Denise Smart suggested to R.S. that she seek assistance from
a variety of service agencies: Fairbanks Native Association (FNA), the
Health Center, the Women, Infants and Children (WIC) program (a
nutritional supplement program), and Aid to Families with Dependent Children
(AFDC). Smart explained each program and offered R.S. transportation to
FNA. Smart drove R.S. to and from FNA the following
day. Smart attempted additional follow-up supervision, but R.S. had moved
without leaving a forwarding address or telephone number.
R.S. was taken to FNA by Smart, she applied for
an Indian Child Welfare grant, was referred to the WIC
program, was given an AFDC application and use of the
phone to make an appointment with AFDC, was told about
parenting classes and was offered transportation. A food basket, diapers
and clothes were delivered to R.S. that day. Although she
picked up her Indian Child Welfare grant check, she failed
to keep her appointment with AFDC. She testified that she
thought the application form was "too hard" to fill out.
She also complained that she couldn't get transportation to AFDC,
but had no explanation for why she failed to accept
FNA's offer of transportation.
The superior court found that it would be in D.E.D.'s
best interests if parental rights were terminated:
is evidence beyond a reasonable doubt that [D.E.D.] is a
child in need of aid as a result of his
parents' conduct under AS 47.10.010(a)(2)(A) based on
the abandonment by his mother and father in that they
have consciously disregarded their obligation to maintain or establish a
parent/child relationship with him and that conduct has resulted in
the destruction of the parent/child relationship, and their inability to
provide for his physical, social, emotional, and mental needs.
is evidence beyond a reasonable doubt that this conduct is
likely to continue if the parents' parental rights are not
is evidence beyond a reasonable doubt that [D.E.D.] is likely
to suffer serious physical or emotional damage if he were
returned to the custody of his parents or if parental
rights were not terminated.
is evidence beyond a reasonable doubt that active efforts have
been made to provide remedial services to prevent the breakup
of this family and that these services have proved unsuccessful
or have been rejected by the parents.
D.D. did not contest termination and both his and R.S.'s
parental rights were terminated. R.S.'s motion for a stay was
denied. R.S. now appeals.
I. WAS R.S. DENIED THE RIGHT TO COUNSEL UNDER THE
INDIAN CHILD WELFARE ACT (ICWA)?
ICWA states that an Indian parent "shall have the right
to court-appointed counsel in any removal, placement, or termination proceeding"
where the court has determined that the parent is indigent.
25 U.S.C. § 1912(b)
is no dispute that the provisions of this section apply
to D.E.D. and R.S. Nor is there any dispute that
R.S. was represented by counsel at the trial in which
her parental rights *779
were terminated. R.S.'s primary contention is that she was deprived
of her right to counsel under ICWA because the State
failed to fulfill the notice requirements of § 1912(a).
Under § 1912(a), no
foster placement proceeding can be held unless the parent has been given
10 days notice by registered mail or, if the parent cannot be found, the
Secretary of Interior has been notified. R.S. contends that
the State did not attempt to give notice to her or the Secretary of either
the November 29th hearing or the December 27th hearing. R.S.
claims that the State's failure to fulfill the notice requirements of
§ 1912(a) effectively deprived her of her right to counsel,
since the issuance and receipt of statutory notice includes notification
of the right to counsel.
R.S. notes that the federal guidelines to § 1912
indicate that the State should have provided the court with
a "detailed explanation of what efforts have been made to
locate [the parents]," B.7(b)(ii), and a "statement of the specific
actions that have been taken to assist the parents ...
so the child may safely be returned to their custody."
for State Courts; Indian Child Custody Proceedings,
44 Fed.Reg. 67589. While the Guidelines are not binding on
state courts they are considered instructive. See
44 Fed.Reg. 67584. R.S. contends that these guidelines were not
fulfilled since the State never provided the court with an
explanation of what efforts were made to find R.S. or
with a statement of what steps the State had taken
to assist R.S. in having D.E.D. returned to her.
also cites Rule 15(a)(3) and (4) of the Alaska Children's
Rules to show that the court should have appointed her
counsel at the November 29 and December 27 hearings. Rule
15 provides as follows:
the Court Shall Appoint Counsel.
The court shall appoint counsel to represent the child, his
parents, guardian, or custodian, when the assistance of counsel is
desired, as follows:
For his parents, guardian, or custodian when they are financially
unable to employ counsel to represent themselves and the issues
are complex or have serious consequences.
For the child, his parents, guardian, or custodian in any
situation where, in the opinion of the court, the interests
of justice and the nature of the case warrant providing
the assistance of counsel at the taxpayer's expense.
The State argues that R.S.'s reliance on the notice requirements
of § 1912(a)
is misplaced because the November 29 and December 27 hearings
were emergency custody proceedings and thus fell under 25 U.S.C.
and not § 1912.
Section 1922 states in part:
in this subchapter [§§
1911-1923] shall be construed to prevent the emergency removal of
an Indian child ... from his parent or Indian custodian
or the emergency placement of such child in a foster
home or institution, under applicable State law, in order to
prevent imminent physical damage or harm to the child.
Section 1922 goes on to state that the court is
to "expeditiously initiate a child custody proceeding." Section 1922 is
not explicitly limited to situations in which the child is
in the parents' custody.
The State is correct in its characterization
of the November 27 hearing as an emergency custody proceeding falling
under § 1922. As of November 27, the voluntary placement
agreement had expired, R.S. had failed to retrieve her son, and she was
nowhere to be found. The foster parents with whom D.E.D. had
been placed under the voluntary agreement were no longer obligated to
care for him. At that point, D.E.D. became an abandoned child
and thus a child in need of aid under AS 47.10.010(a)(2)(A). In
this situation, emergency intervention is required under § 1922
and for obvious reasons the 10 day notice R.S. demands is not applicable.
By the same token, the
December 27 hearing was also emergency in nature.
the November 29 and December 27 proceedings were emergency hearings, the
notice requirements of § 1912(a) were not applicable to R.S.,
and she was not deprived of her right to counsel under ICWA by the State's
failure to notify her.
The State also argues that R.S. chose not to be
represented in the earlier hearings. The State observes that R.S.
could not be found as of November 29, since she
had not contacted DFYS and had given DFYS no way
of contacting her and therefore, she could not have been
notified of that hearing. Moreover, after the November 29 hearing,
R.S. received several communications giving her notice of the December
27 hearing which she ignored. She received a letter from
Hafler enclosing court paperwork; Hafler spoke to R.S. by phone
on December 8; the Motion to Extend Temporary Custody was
mailed to R.S. on December 21; Collins wrote to R.S.
regarding the proceedings and she received his letter on December
14. Since R.S. failed to follow through after learning about
the November 29 hearing and after she was repeatedly told
to get counsel, the State contends that "even if R.S.
had been served with a formal notice of her right
to counsel on November 27th she would not have exercised
are unconvinced by this assertion. If, indeed, the State was
notify R.S., the Secretary of Interior should have been given
notice if R.S. could not be found. Even the irresponsible
are entitled to due process.
II. SHOULD THE SUPERIOR COURT HAVE DECLINED JURISDICTION?
R.S. asserts that the superior court committed reversible error in
not declining jurisdiction as requested in her Petition for Return
filed on the morning of trial. Neither the Petition for
Return nor its supporting memo stated the basis for the
request to decline jurisdiction.
R.S. stated in her brief that the request was made
pursuant to 25 U.S.C. §§ 1913(b)
and 1920 (1978). Section 1913(b) provides:
parent or Indian custodian may withdraw consent to a foster
care placement under State law at any time and, upon
withdrawal, the child shall be returned to the parent or
U.S.C. § 1920
in an Indian child custody proceeding before a State court
the child from custody of the parent or Indian custodian
has improperly retained
custody after a visit or other temporary relinquishment of custody,
court shall decline jurisdiction
over such petition and
shall forthwith return the child
to his parent or Indian
custodian unless returning the child to his parent or custodian
would subject the child to a substantial and immediate danger
or threat of such danger. (Emphasis added.)
B.8 to 25 U.S.C. § 1920
states as follows:
If, in the course of any Indian child custody proceeding,
the court has reason to believe that the child who
is the subject of the proceeding may have been improperly
removed from the custody of his or her parent or
Indian custodian or that the child has been improperly retained
after a visit or other temporary relinquishment of custody, and
that the petitioner is responsible for such removal or retention,
court shall immediately stay the proceedings until a determination can
be made on the question of improper removal or retention.
If the court finds that the petitioner is responsible for
an improper removal or retention, the child shall be immediately
returned to his or her parents or Indian custodian. (Emphasis
The supporting memo merely cites
A.B.M. v. M.H.,
651 P.2d 1170 (Alaska 1982) which arose not under §§ 1913
or 1920 but under 25 U.S.C. § 1916(a) (1983).
[FN11] Thus, as the State notes, there was nothing in R.S.'s petition
which demonstrated that there was any basis for declining jurisdiction
under either § 1913 or § 1920. The only
other times R.S. challenged the superior court's jurisdiction were at
the close of cross-examination, where R.S.'s counsel stated that he was
willing to make a legal argument as to jurisdiction under § 1920,
and in closing argument where opaque references were made to the jurisdictional
question. Thus, R.S. never requested the superior court to
rule on the jurisdictional issues she now specifies as error. Since
the issue was never properly raised below, we do not consider it here.
Section 1916(a) provides:
State law to the contrary, whenever a final decree of
adoption of an Indian child has been vacated or set
aside or the adoptive parents voluntarily consent to the termination
of their parental rights to the child, a biological parent
or prior Indian custodian may petition for return of custody
and the court shall grant such petition unless there is
a showing, in a proceeding subject to the provisions of
section 1912 of this title, that such return of custody
is not in the best interests of the child.
Alternatively, assuming the jurisdictional point was properly raised below, we
find it without merit. R.S. claims that since D.E.D. was
"improperly removed" within
the meaning of § 1920
by the October agreement, and by the November and December
temporary custody proceedings, the *781
superior court should have declined jurisdiction and returned D.E.D. to
R.S. asserts that custody taken
pursuant to the October 27 voluntary agreement was improper because the
agreement was neither executed nor certified according to § 1913(a)
[FN12] We agree with the State that the voluntary foster care placement
agreement R.S. signed is not subject to ICWA.
Section 1913(a) provides in pertinent part:
any parent or Indian custodian voluntarily consents to a foster
care placement or to termination of parental rights, such consent
shall not be valid unless executed in writing and recorded
before a judge of a court of competent jurisdiction and
accompanied by the presiding judge's certificate that the terms and
consequences of the consent were fully explained in detail and
were fully understood by the parent or Indian custodian. The
court shall also certify that either the parent or Indian
custodian fully understood the explanation in English or that it
was interpreted into a language that the parent or Indian
AS 47.10.230(c) authorizes DHSS to place minors under "individual voluntary
written agreements" for up to 6 months. The statute specifically
states that these
agreements "shall not operate to prohibit a minor's parent ...
from regaining care of the minor at any time." DHSS
provided a form agreement, which R.S. signed. The agreement specifically
stated, immediately above the signature line:
have read the above statements or have had them read
to me and I understand them. I also understand that
this agreement is voluntary and that I have the right
to regain custody of the child at any time.
25 U.S.C. § 1903(1)
defines the types of proceedings covered by ICWA:
"child custody proceeding" shall mean and include--
"foster care placement" which shall mean 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;
"termination of parental rights" which shall mean any action resulting
in the termination of the parent-child relationship;
"preadoptive placement" which shall mean the temporary placement of an
Indian child in a foster home or institution after the
termination of parental rights, but prior to or in lieu
of adoptive placement; and
"adoptive placement" which shall mean the permanent placement of an
Indian child for adoption, including any action resulting in a
final decree of adoption.
The voluntary care agreement entered into by R.S. does not
fall into ICWA's definition of "foster care placement" since R.S.
could have D.E.D. returned to her "at any time." [FN13]
Nor does it come within any of the other categories
listed in § 1903(1).
Thus, the agreement R.S. signed did not fall under ICWA.
While the October 27 agreement fulfilled the literal requirements of
the ICWA guidelines, it did not explicitly state, nor was
it ever explained to R.S. what the harsh consequences might
be of failing to demand return of D.E.D. prior to
the agreement's expiration date. In fact, without such a warning,
the agreement's language ("at any time") seems to be somewhat
deceptive. However, R.S. failed to raise this issue either here
or below and since it is not properly before us,
we will not consider it.
The guidelines support this conclusion. Guideline B.3(c) states that "[v]oluntary
placements which do not operate to prohibit the child's parent
... from regaining custody of the child at any time
are not covered by the Act." 44 Fed.Reg. 67587.
Commentary to guideline B.3, which explains the reasons for creating
specifically refers to the type of agreement signed by R.S.
and stresses how such agreements are to be structured so
that ICWA will not apply to them:
private groups and some states enter into formal written agreements
with parents for temporary custody (See
e.g. Alaska Statutes § 47.10.230).
The guidelines recommend that the parties to such agreements explicitly
provide for return of the child upon demand if they
do not wish the Act to apply to such placements.
Inclusion of such a provision is advisable because courts frequently
assume that when an agreement is reduced to writing, the
parties have only those rights specifically written into the agreement.
44 Fed.Reg. 67588.
The agreement fulfilled the guidelines'
suggestions for voluntary placement agreements. It was explained
to R.S. and it is apparent that she understood its terms from her statement
to Hafler that she intended to use it only for a few days or a week. Since
the agreement signed by R.S. is not subject to the provisions of ICWA,
it did not have to satisfy the requirements of § 1913 and, therefore,
it could not furnish a basis for the court to decline jurisdiction under
§ 1920 and return D.E.D. to R.S. [FN14]
R.S. also contends that the November and December temporary custody
proceedings were improper because she lacked statutory notice and was
thereby deprived of her right to counsel. As discussed above,
these claims are meritless.
It is also clear that § 1920
is not the proper remedy for the alleged violations of
which R.S. complains. The legislative history of § 1920
states as follows:
110 [25 U.S.C. § 1920]
establishes a "clean hands" doctrine with respect to petitions in
State court for the custody of an Indian child by
a person who improperly has such child in physical custody.
is aimed at those persons who improperly secure or improperly
retain custody of the child without the consent of the
parent or Indian custodian and without the sanction of law.
It is intended to bar such persons from taking advantage
of their wrongful conduct in a subsequent petition for custody.
The child is to be returned to the parent or
Indian custodian by the court unless such return would result
in substantial and immediate physical danger or threat of physical
danger to the child. It is not intended that any
such showing be by or on behalf of the wrongful
petitioner. (Emphasis added.)
H.R.Rep. No. 1386, 95th Cong., 2nd Sess. 25 (1978), reprinted
1978 U.S.Code Cong. & Ad.News 7530, 7548.
DFYS took the case to the superior
court promptly at the expiration of the October agreement and again at
the end of the 30 day temporary custody period. In addition,
the superior court had an adequate basis for its December 27 order extending
temporary custody, because it had the State's supporting memorandum regarding
R.S.'s knowledge that D.E.D. was in custody and her failure to either
visit the child or contact DFYS. Thus, no removal or retention
of D.E.D. occurred "without the sanction of law."
III. WERE ANY PROCEDURAL OR JURISDICTIONAL ERRORS RENDERED HARMLESS BY
A SUBSEQUENT, PROCEDURALLY CORRECT HEARING?
The State argues that even if
ICWA's provisions were violated in relation to the two temporary custody
proceedings, this court is not required to set aside the superior court's
subsequent decree terminating parental rights which was reached after
compliance with ICWA. We conclude that even if the procedural
and jurisdictional defects asserted by R.S. existed in the earlier temporary
custody hearings, they were cured by the subsequent procedurally correct
final dispositional hearing which occurred five months after R.S. was
appointed counsel and three months after her counsel stipulated that D.E.D.
was a child in need of aid.
The Supreme Court of Montana addressed a similar question in
679 P.2d 1241 (Mont.1984). There it was held that ICWA
"does not provide for invalidation of a valid separate action
because of an invalid prior one." Id.
at 1243. The court noted the following:
temporary and permanent custody proceedings ... were separate actions resulting
in court orders granting different forms of relief....
terminating [the mother's] parental rights, the [trial court] did not
rely upon the prior temporary custody proceedings. The court noted
the temporary custody proceedings in its findings of fact, but
emphasized separate testimony from the permanent custody hearing regarding the
condition of the child and the parents' ability to care
for the child....
temporary custody proceedings were not a legal prerequisite to termination
of parental rights.
IV. WAS THERE SUFFICIENT EVIDENCE TO FIND THAT R.S. HAD
The superior court has the authority
to terminate parental rights pursuant to AS 47.10.080(c)(3),
a showing in the adjudication by clear and convincing evidence
that there is a child in need of aid under
AS 47.10.010(a)(2) as a result of parental conduct and upon
a showing in the disposition by clear and convincing evidence
that the parental conduct is likely to continue to exist
if there is no
termination of parental rights....
In proceedings which fall under ICWA, the court's determination must
also be "supported by evidence beyond a reasonable doubt, ...
that the continued custody of the child by the parent
... is likely to result in serious emotional or physical
damage to the child." 25 U.S.C. § 1912(f).
A minor is a child in need of aid under
AS 47.10.010(a)(2)(A) if he has been physically abandoned by his
parents, or by one parent if the other parent's rights
have been voluntarily relinquished.
The superior court found that there was evidence beyond a
reasonable doubt establishing that R.S. had abandoned D.E.D., that her
conduct was likely to continue and that D.E.D. would suffer
serious damage if he were left in R.S.'s custody. R.S.
asserts that the superior court lacked sufficient evidence to determine
that she had abandoned D.E.D. We disagree.
The test for abandonment has two
prongs: (1) has the parent's conduct evidenced a disregard for her
parental obligation, and (2) has that disregard led to the destruction
of the parent-child relationship. Nada
A. v. State, 660 P.2d
436 (Alaska 1983). Abandonment is not determined by the parent's
subjective intent, but by "objective evidence of parental conduct."
E.J.(T.), 557 P.2d
1128, 1130-31 (Alaska 1976) (quoting In
re Adoption of V.M.C.,
528 P.2d 788, 793 (Alaska 1974)); see
also Matter of D.M. v. State,
515 P.2d 1234, 1237 (Alaska 1973). A superior
court's finding of abandonment will not be overturned on review unless
it is clearly erroneous. Matter
of E.J.(T.), 557 P.2d
There is ample evidence in the
record that R.S.'s conduct "implie[d] a conscious disregard of the
obligations owed by a parent to the child, leading to the destruction
of the parent-child relationship." Matter
of D.M., 515 P.2d at
1237. Despite the fact that R.S. was continually encouraged
by her social workers to visit D.E.D., she saw him only once prior to
her court appearance on March 9, 1984. Subsequent to that
hearing, she saw D.E.D. twice, and then missed or cancelled visits on
several other occasions. The total amount of time R.S. spent
visiting D.E.D. between October 27, 1983 and the June 25, 1984 hearing
was a little over two hours. She was unable to provide the
superior court with an explanation of why she failed to visit her son:
"I don't know. Don't ask. I don't have
an answer for that." The expert witnesses unanimously
concluded that, because of D.E.D.'s age, lack of contact between R.S.
and D.E.D. had destroyed the parent-child bond.
The experts also agreed that based on R.S.'s past conduct
and her lack of response to the services offered her,
there was little likelihood that her behavior would change, and
that serious physical or emotional damage would occur to D.E.D.
if he were returned to R.S.'s custody. In light of
the foregoing, we conclude that the *784
superior court's decision to terminate R.S.'s parental rights on the
basis of her abandonment of D.E.D. is supported by
704 P.2d 774