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(Cite as: 2004 WL 2260291 (Alaska))

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Supreme Court of Alaska.

In the Matter of the GUARDIANSHIP OF R.D.V.

No. S-11335.

Oct. 6, 2004.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Reese, Judge.

Ruth Hansen, pro se, Rancho Cordova, California.

Mark Andrews, Associate Counsel, Ethan Schutt, General Counsel, Tanana Chiefs Conference, Fairbanks, for Native Village of Holy Cross.

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

MEMORANDUM OPINION AND JUDGMENT [FN*]

FN* Entered pursuant to Appellate Rule 214.

I. INTRODUCTION

*1 This appeal concerns the guardianship and visitation of a minor, R.D.V. Ruth Hansen appeals the superior court's determination that Henry Van Horn should remain guardian of R.D.V., and visitation by relatives should take place at the guardian's reasonable discretion. We conclude that the superior court did not err in its findings and thus affirm the court's rulings.

II. FACTS

The relevant facts of this case as found by the master are as follows:

1. [R.D.V.], d.o.b. 2/20/90, is the child of Dawn Cotter and Harold Richard Viol, a/k/a Harold Richard Vowell. Mr. Vowell died on March 13, 1994 in Anchorage, Alaska.... [I]t is not very clear in whose physical custody the child was in at that time. As it was, Mr. Viol left a Last Will and Testament appointing his sister Ruth Hansen as the guardian of the child. Her testimony indicates that she took physical custody of the child about a month after Mr. Viol's death.

2. There is no evidence of any court order terminating Ms. Cotter's parental rights. The evidence in this proceeding is unclear as to how much knowledge she had and/or what approval she gave as to Ms. Hansen taking physical custody of the child.[ [FN1]]

N1. On November 3, 2003, Dawn Cotter was contacted in order to participate in a hearing on visitation for R.D.V. According to the legal secretary for Tanana Chiefs Conference, Inc., Cotter indicated that "she didn't wish to be contacted for the hearing" and that "she felt she had said her peace [sic] and didn't wish to be contacted further."

3.... [T]here is no evidence of [the will] being probated in an estate case, or for that matter of any estate case being opened in Mr. Viol's name, whether under the name of Harold Richard Viol or the name of Harold Richard Vowell. Although Ms. Hansen testified that she is the executor of Mr. Viol's estate, there is no evidence of her being so appointed by any court.

4. There is no evidence of [any type of legal proceeding or case] granting Ms. Hansen custody of the child at any time.

5. Ms. Hansen had physical custody of the child in ... Cordova, Alaska from 1995 until January or April 1997 ... when [Henry] Van Horn [ [FN2]] began his physical custody of the child.

FN2. Van Horn is the ex-husband of R.D.V.'s biological mother, Dawn Cotter, and the father of R.D.V.'s two half-siblings.

6. Between February 20, 1996 and September 29, 2000 Ms. Hansen received $23,552.30 from the Cook Inlet Regional Corporation (CIRI) as the stock custodian for the child's shares which he inherited from his father.... There is an unanswered question as to why CIRI sent her the monies, because there was no formal court order as to her having custody of the child or being appointed as the child's conservator to receive such monies. The court can only speculate that she received the monies on the basis of CIRI being informed of or seeing a copy of Mr. Viol's non-probated Last Will and Testament.

7. Ms. Hansen never set up a custodial account in the child's name for those monies. She deposited them in her own account and expended all of the $23,552.30. She testified that it was used on behalf of the child for plane tickets, family vacations, a bed, clothes, and other things. However, $8,733.08 of that money was paid out to her after Mr. Van Horn took physical custody of the child in April 1997. There is insufficient evidence as to her actually having that much in expenses for the child during her post-April 1997 non-custody period.

*2 8. The actual circumstances as to why and how Mr. Van Horn took physical custody of the child in California in April 1997 are still murky.... [According to Ms. Hansen, she believed the child should temporarily be placed in the custody of Mr. Van Horn when Ms. Hansen was scheduled to undergo a surgical procedure. According to Mr. Van Horn, California Child Protective Services placed the child with him as a foster parent.]

9. Regardless of whose version is correct as to how Mr. Van Horn took physical custody of the child, he was appointed as the child's guardian on or about August 31, 1998 by the Superior Court of California, County of Butte in Oroville.... That appointment of Mr. Van Horn has not been vacated by any court order.

10. On October 19, 1999 the California court approved a Custody Order ... [granting Ms. Hansen visitation rights on] alternating Christmases beginning in 1999, alternating Easter school vacation periods beginning in 2000, and every month of July beginning in 2000. Mr. Van Horn's guardianship rights were not affected by this visitation order. This visitation order did not say anything as to Mr. Van Horn being required to have any particular type of communication with Ms. Hansen in order to facilitate her visitation.

11. Since 1999 Ms. Hansen has seen the child twice. Once, during the Easter 1999 vacation period for an unspecified amount of time, and once for a brief amount of time on March 8, 2001 in Anchorage, when she happened to be walking by an Anchorage homeless shelter and she spotted the child there.

12. Mr. Van Horn moved with the child from California to Alaska in September 1999. It appears that he first went to Hydaberg to teach school. He and the child were there an unspecified period of time, and then they moved to Togiak until their move to Anchorage in early 2001. Mr. Van Horn suffered rotator cuff injuries, which [have] resulted in his being regarded as disabled from work. The move to Anchorage was in part so he could receive medical treatment here.

13. Ms. Hansen moved to California in October 1999 to be nearer to the child, but was unaware that Mr. Van Horn and the child had already moved to Alaska. In December 2000 she moved to Anchorage to be closer to the child; although at that time the child and Mr. Van Horn were in Togiak.

14. Initially, upon their move to Anchorage Mr. Van Horn and the child lived in a Salvation Army homeless facility for up to 30 days, and then they moved into Mr. Van Horn's present apartment.

15. The evidence indicates that for a significant period of time, including before Mr. Van Horn took over physical custody, the child had had mental health problems. In March 2001 Mr. Van Horn put the child in the Northstar Residential Acute Care Center, because of the child's behavioral problems. Mr. Van Horn testified that the child was in the facility for up to two months and then he returned home.

16. That return was brief, as in July 2001 the child was readmitted to the Northstar Acute Care Treatment Center due to suicidal gestures, depression, and difficulty in following rules. He was there for about three weeks, and then he was transferred to the Northstar Residential Treatment Center for long-term mental health care. He was diagnosed as having Bi-Polar Disorder, Oppositional Defiant Disorder and Post-Traumatic Stress Disorder. He has been given various medications for his problems.

*3 17. Ms. Weaver, [the program manager at Northstar, testified that] Mr. Van Horn has been consistently and appropriately involved in the child's care at Northstar. She said that Mr. Van Horn has had the child on four to twelve hour visitation passes, depending on how the child was doing at that time.

18. The child [was] scheduled for release back to Mr. Van Horn's physical care and custody [in May or June 2002], but due to the child's recent behavioral problems the Northstar staff deferred the release.... Ms. Weaver testified that upon the child's release both individual and family therapy should continue.

19. Ms. Weaver testified that the child was "very neutral" (Ms. Weaver's words) as to having contact with Ms. Hansen. Ms. Weaver indicated that such contact would depend on the family situation and that it would be up to the child's custodian to make decisions about such contact.

....

22. The Northstar bills have been paid through the Denali Kid Care program.

23. From the time that Mr. Van Horn and the child left California in September 1999 until now Mr. Van Horn and [Ms.] Hansen have had very little contact. He testified that he tried to contact her by mail prior to 2001 about the [child's] CIRI dividends, but he received no answers to his inquiries. On the other hand, she testified that she never heard from him, so that her seeing the child in Anchorage suddenly on March 8, 2001 was a surprise. The manner in which they testified shows that there is a lot of animosity between them now.

24. Mr. Van Horn's testimony indicates that he has been more willing to keep or try to keep other relatives of the child informed as to the child's whereabouts and situation....

25. Mr. Van Horn feels that since Ms. Hansen did not ask for visitation and exercise it for a substantial amount of time, that in his eyes there was no court order as to visitation anymore....

26. Mr. Van Horn has two bank accounts in the child's name. One is at the Wells Fargo bank and the balance as of the March 31, 2002 statement was $19,126.35. Those funds are the result of CIRI dividends or distributions sent to Mr. Van Horn as the child's guardian, although it is unclear as to the time period over which the monies were paid out. The second account is at U.S. Bank of Minnesota in which there was $35,611.08 as of the June 13, 2002 statement date. These monies are the accumulation of Social Security survivor's benefits paid out to the child due to his father's death. Mr. Van Horn testified that at an unspecified time he received about $26,000.00 as a lump sum survivor's benefit payment, which was due to that money building up over time until an application had been made on behalf of the child for the benefits to begin.

27. Mr. Van Horn receives $667.00 per month in on-going Social Security survivor's benefits for the child. He also receives $368.80 per month in workman's compensation, $478.00 per month in Social Security disability, and $362.00 per month in adult public assistance. In addition, $44.00 per month is sent to his 17-year-old son ... who lives with Mr. Van Horn, as his own share of the public assistance. Mr. Van Horn uses all these monthly payments, including the child's $667.00 per month, for his household expenses.

*4 28. [Mr. Van Horn testified he has complied with the requirement that he report annually to the Social Security Administration as to how he uses the child's Social Security payments.]

29. On March 21, 2001 Mr. Van Horn filed on the child's behalf a [civil] complaint [against Ms. Hansen]. He sought Ms. Hansen's removal as "Trustee of the [R.D.V.] Trust," her accounting for all funds and reimbursing all losses, her paying attorney's fees and costs, her paying post-judgment interest, and her paying punitive damages....

30. [That civil case is still pending, and there is reason to believe the civil court is awaiting the outcome of this guardianship case before proceeding with the civil case.]

31.... CIRI is holding [an additional] $68,646.44 on the child's behalf. That is the total that was to have been sent to Ms. Hansen as the stock custodian of the child's share of his father's share of the December 12, 2000 to September 28, 2001 distributions and dividends. CIRI has placed this money in an interest-bearing account until "... the custodianship issue is resolved."

....

33. Mr. Van Horn testified that he has spent about $7,500.00 of the child's money for his attorney's fees and costs in this case and the civil case.

(Footnote omitted.)

III. PROCEEDINGS

Hansen filed a petition for appointment of guardian of a minor in the superior court on January 15, 2002. Then on May 4, 2002, Hansen filed a motion for return of custody. The Native Village of Holy Cross (through the Tanana Chiefs Conference, Inc.) was allowed to intervene as a party in the case on May 9, 2002.

In June and July of 2002, Master Brown held four hearings concerning whether to grant a temporary change in guardianship of the child. As a result of those hearings, the master recommended that there be no change of guardian, that Van Horn remain the conservator of the child's financial affairs, and that a future hearing be held regarding visitation rights. Superior Court Judge John Reese approved these findings on August 1, 2002.

Van Horn then moved to dismiss Hansen's petition. The superior court granted the motion to dismiss on October 22, 2002, because no opposition was filed, but then granted a motion for reconsideration of that ruling.

The master held a hearing concerning visitation on February 4, 2003. Following that hearing, the master requested an opinion from R.D.V.'s therapists regarding the relationship between the child and Hansen, and the impact a visitation order would have on the child. The therapists declined to offer a recommendation for fear it would threaten their therapeutic relationship with R.D.V. As a result of this response, on March 14, 2003, the master recommended that a limited visitation investigation be conducted by a private custody investigator, and that the cost of this investigation be paid out of the child's funds.

After the master made his recommendations but before the superior court decided whether to accept them, the therapists sent a letter to Master Brown indicating that they were now able to offer an opinion as a result of further meetings with the child and Van Horn. The therapists noted R.D.V.'s preference to remain in the custody of Van Horn, and they recommended that visitations not be required but that they could be permitted without harm to the child and it would be best for any visitations to take place in Alaska and during the day. As a result of this letter, the superior court declined to adopt the master's recommendation as it did not believe a custody investigation was warranted, especially at the expense of the child. The superior court remanded the matter back to the master for further consideration in light of this letter.

*5 The master then scheduled a hearing on November 5, 2003, to resolve the visitation issues. The Tanana Chiefs Conference attempted to contact Hansen for her telephonic participation in the hearing but it was unable to do so, and Hansen did not participate in the hearing. After the master issued oral rulings, the superior court concluded that there is no close bond between the child and Hansen, denied Hansen's request for the enforcement of the 1999 California visitation order, and ruled that any future visitation or contact by relatives of the child shall take place as Van Horn, using reasonable discretion, believes is in the best interest of the child.

Hansen now appeals. [FN3]

FN3. Hansen has filed her appeal pro se, and has acted as such throughout these proceedings. Van Horn has not filed a brief on appeal.

IV. DISCUSSION

A. The Superior Court Did Not Err in Denying Hansen's Request for a Change in Guardianship and in Limiting Visitation.

Hansen argues that the superior court erred in denying her request for a change of guardianship and in limiting her visitation rights. We will reverse a superior court's custody order only where "the court's critical factual findings were clearly erroneous or if we find that the trial court abused its discretion." [FN4] Hansen's first argument claims the superior court violated "several" provisions of the Indian Child Welfare Act, [FN5] and she specifically cites sections 1916 and 1914. Hansen also offers the argument that the superior court erred by not considering R.D.V.'s biological father's will in its custody determination, thereby violating AS 13.26.045. [FN6]

FN4. Schmitz v. Schmitz, 88 P.3d 1116, 1121 (Alaska 2004).

FN5. 25 U.S.C. § 1911 et seq. (2004).

FN6. Hansen has offered a variety of other complaints in her brief but they are not adequately briefed and are therefore waived. State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980).

With regard to her first argument, we find that the superior court did not err in its ruling with respect to the provisions of the Indian Child Welfare Act. Hansen first refers us to section 1916 of the Act. She relies upon subsection (a), which provides:

Notwithstanding 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.[ [FN7]]

FN7. 25 U.S.C. § 1916(a) (2004).

Hansen argues that the State of Alaska has "[n]ever ... proved that return of custody [to Hansen] is not in the best interest of the child." Hansen's reliance on subsection 1916(a) is misplaced, however. The language of the subsection indicates it applies "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." The present case does not involve an adoption decree as the statute requires; instead the issues sought for resolution have involved guardianship of the child and visitation rights of the aunt and relatives. Nor does this case involve adoptive parents terminating their parental rights; in fact, the record does not indicate that any adoption proceedings have ever been brought with regard to R.D.V . [FN8]

FN8. Subsection (b) of the statute allows for the same considerations in cases where there is a removal from foster care. However, this case deals with whether the child should be removed from Van Horn's custody, thereby not calling for the best interest analysis as Hansen seeks to apply it here.

*6 Nor did the superior court violate section 1914 of the Act in this case. Hansen claims the court violated section 1914 when it "completely ignored" tribal resolutions passed by Holy Cross which recommended Hansen's consideration as guardian. These resolutions, however, do not provide the relief Hansen seeks as they are not petitions to invalidate a foster care placement or termination of parental rights, the subject of section 1914. [FN9] It should also be noted that in its brief before this court, Holy Cross now urges us to conclude that Van Horn has prevailed on issues surrounding guardianship.

FN9. 25 U.S.C. § 1914 provides:

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe 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.

Hansen also argues that since R.D.V.'s biological father's will purported to appoint her guardian of R.D.V., the superior court violated AS 13.26.045 by not complying with the will and granting her guardianship of R.D.V. But as Holy Cross properly observes, Hansen may not rely on this statute because the will of R.D.V.'s father has not been probated. Alaska Statute 13.26.035 provides that a testamentary appointment will become effective "upon filing the guardian's acceptance in the court in which the will is probated ." Since there is no indication that this will has been probated, the testamentary appointment has not become effective.

Moreover, appointments by will under AS 13.26.035 at most raise a presumption that the testamentary appointee should serve as guardian . [FN10] Such a presumption would be dispelled under the circumstances present here, most importantly by the facts that Van Horn was appointed guardian under a valid California decree in 1998 and has served as such ever since. We note that the superior court indicated that Hansen had not proved that changing guardians would be in R.D.V.'s best interest.

FN10. See In re Young's Estate, 9 Alaska 158 (D.Alaska 1937); In re Walsh's Estate, 223 P.2d 322, 324 (Cal.App.1950); In re Joshua S., 796 A.2d 1141, 1157-58 (Conn.2002); In re Estate of Suggs, 501 N.E.2d 307, 310 (Ill.App.1986).

V. CONCLUSION

Because we find that the superior court did not err in limiting visitation and denying Hansen's request for a change of guardianship, we AFFIRM the rulings of the superior court.