as: 715 P.2d 1170)
Court of Alaska.
the Matter of J.R.B. and T.W.G., Minors Under the Age
of Eighteen (18)
March 21, 1986.
court in a parental rights termination proceeding conducted pursuant to
federal Indian Child Welfare Act [Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f)] must apply a reasonable doubt standard
of proof in determining whether continued custody of child by parent or
Indian custodian is likely to result in serious emotional or physical
damage to child, but as to additional findings mandated by state law [AS
47.10.080(c)(3)], trial court must apply a clear and convincing standard
of proof to determine whether child is in need of aid as a result of parental
conduct and whether parental conduct is likely to continue.
of hearsay evidence in trial court's discretion during dispositive phase
of a state parental rights termination proceeding [AS 47.10.080(c)(3)]
is not preempted by the federal Indian Child Welfare Act [Indian Child
Welfare Act of 1978, § 102(f), 25 U.S.C.A. § 1912(f)]
and is not error. Children's Procedure Rules 1, 17(b).
use of hearsay evidence during dispositive phase of a state parental rights
termination proceeding conducted pursuant to the federal Indian Child
Welfare Act [Indian Child Welfare Act of 1978, § 102(f), 25
U.S.C.A. § 1912(f)] is consistent with fundamental fairness
and is not violative of parents' constitutional rights to due process.
AS 47.10.080(c)(3); Children's Procedure Rules 1, 17, 17(b); U.S.C.A.
of social workers and counselors as to information received from other
caseworkers, if offered as expert opinion in parental rights termination
proceeding, could have been admitted under hearsay exception as a basis
for social workers' opinions. AS 47.10.080(c)(3); Children's
Procedure Rule 17; Rules of Evid., Rule 705(c).
evidence of doctors' evaluations of mother, when doctors themselves did
not testify, was nevertheless admissible under provision of federal Indian
Child Welfare Act [Indian Child Welfare Act of 1978, § 102(c),
25 U.S.C.A. § 1912(c)] giving each party to a parental termination
proceeding a right to examine all reports or other documents filed with
court upon which any decision with respect to proceeding may be based.
Sen K. Tan, Asst. Public Defender, Anchorage, Dana Fabe, Public Defender,
Anchorage, for appellant.
Deborah Howard, Asst. Atty. Gen.,
Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau,
Before RABINOWITZ, C.J., and
BURKE, MATTHEWS, COMPTON and MOORE, JJ.
In this case we are presented
with questions concerning the standards of proof and the admissibility
of hearsay in state parental rights termination proceedings conducted
pursuant to the federal Indian Child Welfare Act (hereinafter ICWA), 25
U.S.C. §§ 1901-63 (1982).
[FN1] We conclude that under the ICWA, the trial court need only
apply a "beyond a reasonable doubt" standard of proof to its
finding that continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to the child.
The ICWA does not require the application of the reasonable
doubt standard to those additional findings mandated by state law. We
also conclude that the use of hearsay evidence in the disposition phase
of parental rights termination proceedings as allowed by state law does
not conflict with the ICWA.
The parties agree that the children are Indian children for purposes
of the ICWA. Hence, the ICWA is applied in this proceeding.
I. STANDARD OF PROOF
After a four day trial, Judge
Ripley found that by clear and convincing evidence T.W.G. and J.R.B. were
children in need of aid; that by clear and convincing evidence the
mother's inability to care for her children was likely to continue; and
that beyond a reasonable doubt the return of the children to the mother's
custody was likely to result in serious emotional or physical damage to
them. He ordered all parental rights terminated.
The mother argues that section
1912(f) of the ICWA requires that the reasonable doubt standard be applied
to findings required by state law that the child is in need of aid as
a result of parental conduct and that the harmful parental conduct is
likely to continue. We disagree.
Federal law preempts state law, first, if Congress expressly or implicitly
declares the state law preempted, or, second, if the state law conflicts
with the federal law to the extent that (a) it is impossible to comply
simultaneously with both or (b) the state regulation obstructs the execution
of the purpose of the federal regulation. Webster
v. Bechtel, 621 P.2d
890, 897 (Alaska 1980). Looking to the "policy, intent,
and context of the statute," id.,
it is apparent that state law concerning placement of Indian children
is not expressly or implicitly declared preempted. See,
25 U.S.C. §§ 1902, [FN2] 1921 [FN3] (Supp.1985).
FN2. 25 U.S.C. § 1902
provides in pertinent part:
Congress hereby declares that it is the policy of this Nation 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
the removal of Indian children from their families....
FN3. 25 U.S.C. § 1921
any case where State or Federal law applicable to a child custody proceeding
under State or Federal law provides a higher standard of protection to
the rights of the parent or Indian custodian of an Indian child than the
rights provided under [the Child Custody Proceedings Subchapter], the
State or Federal court shall apply the State or Federal standard.
The application of the clear and
convincing standard to the findings that the child is in need of aid as
a result of parental conduct and that the parental conduct is likely to
continue also does not conflict with section 1912(f)
of the ICWA. Section 1912(f) of the ICWA provides:
termination of parental rights may be ordered ... in the absence of a
determination, supported by evidence beyond a reasonable doubt ... 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.
Alaska Statute 47.10.080(c)(3) provides:
the court finds that the minor is a child in need of aid, it shall,
order, upon 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, terminate parental
Section 1912(f) looks to likely future harm to the child. Its
plain language requires only a finding beyond a reasonable doubt of likely
harm to the child with continued custody by the parent or Indian custodian.
In contrast, AS 47.10.080(c)(3) is concerned with the present
condition of the child and the likely future conduct of the parent. It
requires a finding by clear and convincing evidence that the child is
in need of aid as a result of parental conduct and that the parental conduct
that placed the child in need of aid is likely to continue. The
Alaska statute requires findings additional to that
required by the ICWA, thus providing a level of protection to the parental
rights beyond that provided by the ICWA, and is not preempted by the ICWA.
25 U.S.C. § 1921, supra
II. ADMISSIBILITY OF HEARSAY
At the beginning of the trial,
Judge Ripley ruled that hearsay would be admissible in the disposition
phase pursuant to Children's Rule 17. Alaska Statute 47.10.080(c)(3)
splits parental rights termination proceedings into an adjudicative phase,
in which the trial court determines whether the child is in need of aid
as a result of parental conduct, and a dispositive phase, in which the
trial court determines whether the detrimental parental conduct is likely
to continue. A parental rights termination proceeding under
AS 47.10.080 is a children's proceeding in which the Alaska Children's
Rules apply. See
AS 47.10.010; Alaska R. Children's P. 1. Children's
Rule 17(b) provides: "In the dispositive phase hearsay evidence
may in the discretion of the court be employed to accomplish a fair and
proper disposition of the matter."
The mother appeals the trial court's ruling that hearsay was admissible.
She contends that the classification in AS 47.10.080(c)(3)
of a decision to terminate parental rights as a disposition is "replaced
by" the ICWA and that the termination decision is part of the adjudicative
phase under the ICWA. She also argues that due process requires
the exclusion of hearsay in
parental rights termination proceedings. We disagree.
Interpreting the mother's first
argument as a preemption claim, we again apply the Webster
preemption criteria. Since Congress did not declare state
rules and procedures used in parental rights termination proceedings preempted,
we look for some conflict between the state law and the ICWA. Such
a conflict may arise when (1) it is impossible to comply simultaneously
with the dual regulation or (2) the state regulation obstructs the execution
of the purpose of the federal regulation. Webster,
621 P.2d at 897. The ICWA is silent as to the applicable rules
of evidence and, in particular, the admissibility of hearsay. The
ICWA is also silent as to classification of some parts of the proceeding
as an adjudication and other parts as a disposition. Hence,
compliance with state law does not directly conflict with the ICWA. Our
inquiry is narrowed to whether the state rule "stands as an obstacle
to the accomplishment and execution of the full purposes and objectives
of Congress." 621 P.2d at 901.
In enacting the ICWA "Congress
was concerned with two major goals: protecting the best interests
of Indian children and promoting the stability and security of Indian
tribes and families." A.B.M.
v. M.H., 651 P.2d 1170,
1172 (Alaska 1982) (citing H.R.Rep. No. 1386, 95th Cong., 2d Sess. 25-26
(1978), reprinted in
1978 U.S.Code Cong. & Ad.News 7530), cert.
denied sub nom., Hunter v. Maxie,
461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983). We believe
that the admission of hearsay evidence in the dispositive phase, in the
sound discretion of the trial court, is consistent with these objectives.
Alaska has similar goals with respect to its children's proceedings: protecting
the welfare of the child, while, to the maximum extent possible, preserving
existing family relationships. Alaska Statute 47.05.060. [FN4]
The discretionary use of hearsay evidence by the trial court has
been found to serve rather than frustrate these stated goals, and there
is no reason to expect a different result with respect to the federal
AS 47.10.081(b); Matter
of S.D., Jr., 549 P.2d
1190, 1201-02 (Alaska 1976).
Alaska Statute 47.05.060 provides:
purpose of this title as it relates to children is to secure for each
child the care and guidance, preferably in the child's own home, that
will serve the moral, emotional, mental, and physical welfare of the child
and the best interests of the community; to preserve and strengthen
the child's family ties whenever possible, removing the child from the
custody of the parents only as a last resort when the child's welfare
or safety or the protection of the public cannot be adequately safeguarded
without removal; and, when the child is removed from the family,
to secure for the child adequate custody and care.
Further, we note that § 1912(c)
of the ICWA provides:
party to a foster care placement or termination of parental rights proceeding
under state law involving an Indian child shall have a right to examine
all reports or other documents filed with the court upon which any decision
with respect to such action may be based.
While this section seems to apply only to written reports, it suggests
that the admission of such reports, which are hearsay themselves and which
often contain statements of others is contemplated by the ICWA. We
conclude that the admission of hearsay in the dispositive phase of the
parental rights termination proceeding is not preempted by the ICWA.
Likewise, we conclude that the
discretionary use of hearsay does not violate the parents' constitutional
rights to due process of law. While a parental rights termination
proceeding interferes with a fundamental liberty interest of the parent,
Santosky v. Kramer,
455 U.S. 745, 753-54, *1174
102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982), the discretionary
use of hearsay in the dispositive phase of such proceedings, subject to
review for abuse of discretion, is consistent with fundamental fairness.
v. New York, 337 U.S.
241, 249-52, 69 S.Ct. 1079, 1084-86, 93 L.Ed. 1337, 1343-44 (1949) (due
process is not violated when sentencing judge uses out of court information
in imposing death sentence; judge should have access to
the best available information); Stein
v. New York, 346 U.S.
156, 196, 73 S.Ct. 1077, 1098, 97 L.Ed. 1522, 1548 (1953) (hearsay evidence
rule, with all its subtleties, anomalies, and ramifications, will not
be read into the fourteenth amendment).
Upon reviewing the record, we
find no abuse of discretion in the trial court's admission of hearsay
in this case. In the course of the proceeding some hearsay
was admitted for all purposes, some was admitted only to show a basis
for action that the witness took, and some was ruled inadmissible.
mother objects to the trial court's ruling allowing the social workers
and counselors who had worked with the family to testify as to information
received from other caseworkers. The record indicates that
this evidence was incidental to the witnesses' non-hearsay testimony based
on their first-hand observations and the mother's statements to them,
and that it was not a primary basis for the trial court's decision. We
also note that had these witnesses' testimony been offered as expert opinions,
the trial court could have admitted the hearsay as part of the basis for
their opinions. Alaska R.Evid. 705(c).
mother also objects to the introduction of documentary evidence of doctors'
evaluations of the mother where the doctors themselves did not testify.
Again it appears that these evaluations were not a primary
basis for the trial court's decision. Moreover, such documents
come within the ambit of
25 U.S.C. § 1912(c) (1982), providing that "[e]ach party
... shall have a right to examine all reports or other documents filed
with the court upon which any decision with respect to such action may
be based." The mother does not contend that she was denied
examination of the documents, or that she requested and was denied the
opportunity to take the depositions of the doctors who wrote the reports.
In sum, from the record of this
case we find no abuse of discretion in the trial court's admission of
We AFFIRM the order of the superior
715 P.2d 1170