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(Cite
as: 868 P.2d 934)
Supreme
Court of Alaska.
ADOPTION
OF N.P.S., a Minor.
No.
S-5481.
Feb.
18, 1994.
Party
asking a court to deviate from federal Indian Child Welfare
Act's (ICWA) preferences for placement bears burden of proving, by
preponderance of evidence, good cause. Indian Child Welfare Act of
1978, § 105(a),
25 U.S.C.A. § 1915(a).
Supreme
Court will overturn superior court's determination regarding adoption placement preference
only if record as whole shows abuse of discretion or
if lower court's controlling factual findings are clearly erroneous.
In
deviating from statutory preferences of placement for Indian children by
allowing Indian child to be adopted by Caucasian, male friend
of deceased mother of child, rather than child's maternal grandmother,
superior court did not clearly err in its determination as
to child's preference for adoption, where child expressed preference of
living with friend to judge in chambers; fact that child
wrote conflicting letters as to his preference did not render
court's determination clearly erroneous. Indian Child Welfare Act of 1978,
§ 105(a),
25 U.S.C.A. § 1915(a).
In
deviating from statutory preferences of placement for Indian children by
allowing Indian child to be adopted by Caucasian, male friend
of deceased mother of child, rather than child's maternal grandmother,
superior court did not clearly err in finding that decedent's
preference was for adoption of child by
friend, where in decedent's will, she stated her preference for
child's placement with friend in no uncertain terms. Indian Child
Welfare Act of 1978, § 105(a),
25 U.S.C.A. § 1915(a).
In
deviating from statutory preferences of placement for Indian children by
allowing Indian child to be adopted by Caucasian, male friend
of deceased mother of child, rather than by child's maternal
grandmother, superior court did not clearly err in finding that
friend was minimally capable of providing for child's cultural needs.
Indian Child Welfare Act of 1978, § 105(a),
25 U.S.C.A. § 1915(a).
In
deviating from statutory preferences of placement for Indian children by
allowing Indian child to be adopted by Caucasian, male friend
of deceased mother
of child, rather than child's maternal grandmother, superior court did
not clearly err in finding that friend would better meet
child's emotional needs, where child had lived with friend for
most of child's life. Indian Child Welfare Act of 1978,
§ 105(a),
25 U.S.C.A. § 1915(a).
In
deviating from statutory preferences of placement for Indian children, superior
court did not abuse its discretion in finding that adoption
of Indian child by Caucasian, male friend of child's deceased
mother, rather than child's maternal grandmother, was in best interests
of child; although child's cultural needs would have been best
served by living with maternal grandmother, most of other factors
considered supported adoption by friend with whom child had lived
for most of child's life. Indian Child Welfare Act of
1978, § 105(a),
25 U.S.C.A. § 1915(a).
*935
Eric Smith, Anchorage, for appellant Jenny Paul Sims.
Mary Ellen Ashton, Anchorage, for appellee Xavier T. Medley.
No appearance by Toksook Bay Traditional Council, pro se, Toksook
Bay, or J.P. Tangen.
U.S. Dept. of the Interior, Anchorage, for Guardian Ad Litem
Jennifer Abbott.
Before MOORE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and BRYNER,
J. Pro Tem.
[FN*]
FN*
Sitting by assignment made pursuant to article IV, section 16
of the Alaska Constitution.
OPINION
RABINOWITZ, Justice.
N.P.S. was born to A.S. on March 9, 1981. The
natural father of N.P.S. is unknown. A.S. died on December
2, 1990. Jenny Sims and Xavier Medley both sought to
adopt N.P.S. We affirm the superior court's decision to grant
the adoption petition of Xavier Medley.
Jenny Sims, the mother of A.S., is a 63-year-old Yup'ik
widow who has lived in Toksook Bay all her life.
Xavier Medley is a 39-year-old caucasian who resides in Wasilla.
He met A.S. and N.P.S. in 1983, and first resided
with them in Anchorage. In 1983, A.S. gave birth to
a second son, Simon George Sims, whom Jenny culturally adopted
as an infant. In 1989 A.S. bought the property
in Wasilla where Xavier still resides.
After A.S.'s death in 1990, N.P.S. continued to live in
A.S.'s house with Xavier. A.S.'s sister Martina lived in another
house on the same property, and Xavier and Martina shared
N.P.S.'s care. N.P.S. visited Toksook Bay several times in 1991.
On January 17, 1992, Martina took N.P.S. to visit Toksook
Bay but never brought him back to Wasilla. While residing
in Toksook Bay, N.P.S. shared a room in Jenny's house
with his brother Simon.
On June 15, 1992, A.S.'s holographic will dated October 11,
1990 was admitted to probate in the superior court at
Palmer. In
re [A.S.],
3PA-91-55- P/A, (Alaska Super.Ct., June 15, 1992). The will expresses
A.S.'s desire for N.P.S. to have his own home, and
for Xavier Medley to care for him if something should
happen to her. It also says she did not want
the rest of her family to "take over."
Jenny Sims and Xavier Medley separately filed petitions in the
Bethel Superior Court to adopt N.P.S. Superior Court Judge Curda
held an evidentiary hearing on August 21, 1992 on the
consolidated petitions. Several witnesses testified, and Judge Curda interviewed N.P.S.
on the record alone in chambers. Although some of his
responses were transcribed as "inaudible," N.P.S. indicated that he would
prefer to live with Xavier, despite a desire to be
with his brother.
Thereafter, the superior court appointed a guardian ad litem (GAL)
to investigate
the facts further. Her report found that both Jenny and
Xavier "sincerely desire to meet [N.P.S.]'s needs, and are capable
of doing so." The GAL also noted that N.P.S. had
been classified as learning disabled, and stated her belief that
he should be tested for attention deficit disorder.
According to the GAL, "his cultural needs could best be
met in the village ... [but] his emotional needs may
not be able to be met there." In light of
that, and the evidence "to suggest that [N.P.S.]'s mother had
a preference as to who, other than herself, should raise
him," the GAL recommended that (1) Xavier's petition for adoption
of N.P.S. be granted, (2) regular contact between N.P.S. and
his family in Toksook Bay be maintained, and (3) N.P.S.
be assessed for attention deficit disorder.
After conducting another hearing, the superior court issued an order
adopting the recommendations of the GAL. The court ordered that
N.P.S. be returned to Xavier Medley by December 28, 1992.
The next *936
day, the Toksook Bay Traditional Council (the Council) filed a
letter, signed by N.P.S., in which he stated that he
wanted to remain in Toksook. He wrote a second letter,
however, in which he stated that he wanted to live
with both Jenny Sims and Xavier Medley. On December 17,
the superior court received letters from the Council and the
Toksook Bay Family Service Specialist that stated that N.P.S. did
not wish to leave, and that the Council would not
force him to leave.
The superior court then asked the GAL to meet with
N.P.S. again, to "determine
what his placement preference was, and to help facilitate [N.P.S]'s
transition." Although the GAL spoke with a number of people
involved in the dispute, and with N.P.S. on the telephone
once, the GAL was otherwise not allowed to contact N.P.S.
The Council informed the GAL that it would not allow
N.P.S. to leave Toksook Bay. After the GAL filed a
report containing this information, the superior court issued a writ
of assistance ordering the return of N.P.S. to Xavier. A
state trooper attempted to carry out the order on December
31, 1992, but he encountered some difficulty, and was subsequently
authorized by the superior court not to enforce the order.
After several motions by Jenny Sims and the Council urging
the superior court to modify its adoption decision, and discussion
of the possibility of conducting another hearing in Bethel, the
superior court ordered state troopers to transfer N.P.S. to Xavier
Medley's custody immediately, and the troopers carried out the order.
Jenny Sims and the Council now bring this appeal. They
challenge the superior court's determination that allowing Xavier Medley to
adopt N.P.S. is consistent with the federal Indian Child Welfare
Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963
(1988), and the superior court's conclusions "that the child consented
to live with [Xavier], and that placement of the child
with [Xavier] was otherwise consistent with Adoption Rule 9 and
AS 25.23.040."
I. STANDARD
OF REVIEW
ICWA
governs custody proceedings involving Indian children. [FN1]
A party asking a court to deviate from ICWA's preferences for placement
bears the burden of proving, by a preponderance of the evidence, good
cause. In re Adoption
of F.H., 851 P.2d 1361,
1363 (Alaska 1993). We will overturn the superior court's
determination regarding adoption placement preference only if the record
as a whole shows an abuse of discretion or if the lower court's controlling
factual findings are clearly erroneous. Id.
An abuse of discretion occurs when the superior court gives improper
weight to a factor or considers an improper factor. Id.
FN1.
The parties do not dispute that N.P.S. is an "Indian
child" within the meaning of ICWA.
II. DISPUTED
FACTS
Under ICWA,
[i]n
any adoptive placement of an Indian child under State law,
a preference shall be given, in the absence of good
cause to the contrary, to a placement with (1) a
member of the child's extended family; (2) other members of
the Indian child's tribe; or (3) other Indian families.
25 U.S.C. § 1915(a)
(1988). ICWA does not define "good cause." F.H.,
851 P.2d at 1364. It does, however, state that "[w]here
appropriate, the preference
of the Indian child or parent should be considered." 25
U.S.C. § 1915(c).
The Bureau of Indian Affairs has issued guidelines that offer
examples of the kinds of factors that can provide good
cause to deviate:
(i)
The request of the biological parents or the child when
the child is of sufficient age.
(ii)
The extraordinary physical or emotional needs of the child as
established by testimony of a qualified expert witness.
(iii)
The unavailability of suitable families for placement after a diligent
search has been completed for families meeting the preference criteria.
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
67,594 § F.3
(1979). The guidelines assist but do not bind this court.
F.H.,
851 P.2d at 1364.
And the list is not exhaustive. Although ICWA and the
guidelines draw attention to important considerations, the best interests of
the child remain paramount. See
F.H.,
*937
851 P.2d at 1363-64; In
re Interest of Bird Head,
213 Neb. 741, 331 N.W.2d 785, 791 (1983); cf.
AS 25.23.005 (state adoption statutes must be liberally construed to
promote the best interests of the child). The superior court
found good cause based on a number of factors, including
N.P.S.'s preference, A.S.'s preference, and N.P.S.'s emotional needs.
A. The
Preference of N.P.S.
The
superior court found that "[N.P.S.]'s preference is to live with
Xavier." N.P.S. indicated such a preference in his meeting
alone with the superior court judge in chambers, although he also expressed
a wish to stay with his brother, who lived with Jenny. The
GAL also reported that N.P.S. would like to live with Xavier, because
he is " 'the only father I ever knew.' " [FN2]
FN2.
The evidence is not consistent, however. Jenny's brief asserts that
"N.P.S. clearly told the Council and his grandmother that he
wanted to live with Jenny in Toksook Bay." N.P.S. has
expressed conflicting preferences, but there is enough evidence that he
wanted to live with Xavier that the superior court's ruling
was not clearly erroneous.
Jenny makes several arguments that question the significance of the
statements. First, she maintains that N.P.S. expressed a preference for
Xavier to the superior court judge in chambers only because
the judge's questions were leading. The record does not bear
this characterization out. The question the judge asked was "if
you could have the choice of where you wanted to
be, to live, where would you live?"
Jenny suggests that "N.P.S. apparently feels compelled to give people
the answer he believes they want to hear." This theory
is plausible, but equally plausible
is the possibility that N.P.S. is afraid to tell his
grandmother Jenny Sims that he would rather live with Xavier
Medley, and Jenny points to no evidence that makes her
theory more persuasive than others. The GAL reported that N.P.S.
is afraid of his grandmother, but did not indicate that
N.P.S. fears Xavier. The superior court was in the best
position to evaluate this issue.
Finally, Jenny contends that even if the superior court's determination
was reasonable at the time it was made, subsequent events
cast doubt on its correctness. N.P.S. wrote two letters: one
stated a desire to stay in Toksook, and one stated,
"I can only live with one and I wont [sic]
to live with both ove [sic] them." These conflicting letters
do not render the superior court's determination as to N.P.S.'s
preference clearly erroneous.
B. Maternal
Preference
Jenny
disputes the superior court's finding that A.S. wanted Xavier to raise
N.P.S. The only evidence in support of her contention is the
affidavit of Pauline Asuluk, the Family Services Specialist for Toksook
Bay, which contains the statement that Jenny Sims told the specialist
that Jenny and A.S. had made an agreement that if anything happened to
either of them, the other would take care of A.S.'s two boys. There
is no other record evidence of this agreement.
Assuming this agreement between Jenny Sims and A.S. existed, a
conclusion
that A.S. subsequently changed her mind would not be clearly
erroneous in light of A.S.'s holographic will. In her will,
the most recent evidence of her preference, she stated in
no uncertain terms that she wanted Xavier Medley to have
N.P.S. Twice in her holographic will, A.S. stated that she
did not want her family to get close to N.P.S.,
and warned "if they try [to] take Over--Don't Let Them."
Moreover, friends of A.S. informed the GAL that A.S. had
told them she wanted Xavier to have custody of N.P.S.
[FN3]
FN3.
Apparently conceding the strength of A.S.'s preference expressed in her
will, Jenny speculates that A.S.'s motivation was the "difficult relationship"
between mother and daughter. Even if true, the history behind
a preference is less important under ICWA and the guidelines
than the preference itself.
C. Cultural
Needs
The
superior court found that N.P.S.'s cultural needs would be better served
by being with Jenny Sims in Toksook Bay, but that they would be met adequately
by a one-month trip every year to Toksook Bay, and visits to an uncle
who is currently imprisoned in Palmer. The GAL wrote that
*938
exposure to N.P.S.'s cultural heritage "can be accomplished minimally
in the Wasilla area. Regular contact with [N.P.S.'s] extended
family and time spent
in the village would give [N.P.S.] an understanding of the lifestyle of
the Yup'ik culture as well as promoting a positive image of himself as
an Alaskan Native."
Jenny Sims offers no facts that contradict the court's conclusion
regarding Xavier's ability to meet N.P.S.'s cultural needs. Instead, Jenny
relies on the court's statement that "[p]lacement with Jenny is
more likely to foster cultural values and a positive self
image in [N.P.S.] as an Eskimo." Jenny asserts a contradiction
between the court's finding that she would be better able
than Xavier to meet N.P.S.'s cultural needs and its decision
that Xavier's petition for adoption should be granted over her
own.
What is called into question by this argument is not
so much whether the court erred in finding Xavier to
be at least minimally capable of providing for N.P.S.'s cultural
needs, but rather whether the court gave sufficient weight in
its overall decision to Jenny's concededly superior ability to provide
for N.P.S.'s cultural needs. We address this issue below, in
the section of our opinion discussing the weight attached by
the trial court to various factors affecting N.P.S.'s best interests.
To the extent Jenny challenges the trial court's decision that
Xavier is minimally capable of providing for N.P.S.'s cultural needs,
we find no clear error.
D. Emotional
Needs
The
superior court found that adoption by Xavier Medley would better meet
N.P.S.'s emotional needs, noting that N.P.S. had lived with Xavier for
most of his life. Although the GAL found that both Xavier
and Jenny "could appropriately care for [N.P.S.]," she expressed
concerns about the effect on N.P.S. of being moved so abruptly from Wasilla
to Toksook.
Jenny responds that "an equally strong bond developed between N.P.S.
and Jenny and between N.P.S. and his brother during the
time that N.P.S. lived in Toksook Bay." Although the record
contains considerable evidence that N.P.S. cared for his grandmother and
brother, the superior court's finding that adoption by Xavier would
better meet N.P.S.'s emotional needs is not clearly erroneous.
E. Educational
Needs
The superior court noted that N.P.S. appears to have some
sort of learning disability, possibly attention deficit disorder. The superior
court's only finding on this issue is that "[the GAL's
recommendation] was that any treatment would be easier in Wasilla;
this court agrees." Jenny does not directly contest this finding.
Even if treatment would be available in Toksook Bay, there
is no evidence that it would be as easily available
as in the Wasilla area.
III. THE
WEIGHT ATTACHED TO THE VARIOUS FACTORS
In
determining which adoption would serve the best interests of N.P.S., the
superior court considered a number of factors.
A. Maternal
Preference
Even assuming that A.S. wanted Xavier to have custody of
N.P.S., Jenny argues, the superior court did not weigh that
fact appropriately: "Mr. Medley is required to prove, by a
preponderance of the evidence, that the preference of A.S. is
sufficient to override the statutory preference for placement in a
Native home." The superior court judge, according to Jenny, "did
not apply this standard--he merely held that it was in
fact appropriate to consider A.S.' s desires."
Review of the record persuades us that the superior court
gave appropriate weight to A.S.'s preference. Whether one factor outweighs
another is committed to the sound discretion of the trial
court. Although the superior court apparently gave A.S.'s preference substantial
weight, it did not abuse its discretion in doing so.
B. Cultural
Needs
Jenny's arguments concerning the weight attached to cultural needs are
unpersuasive. She argues that "to find good cause [to deviate
from the preferences mandated by ICWA] in visitation by Native
relatives and a *939
one-month trip to the village would make a mockery of
the preference, for such terms could be used at
any time
to deny a Native relative his or her preferential right
to adopt a Native child." The superior court found that
N.P.S. could maintain contact with his culture even if he
lived with Xavier, not that this fact constituted good cause
to deviate from the adoptive preferences
provided for in ICWA. On the other hand, the superior
court concluded that other factors did constitute good cause to
deviate, notwithstanding the cultural advantages of N.P.S.'s living with Jenny
Sims in Toksook Bay.
What Jenny Sims is really arguing is not that any
finding regarding N.P.S.'s cultural needs was "clearly erroneous," but that
the court abused its discretion "in determining that there was
good cause notwithstanding its own finding" that N.P.S. would learn
more about his culture living in Toksook Bay with his
grandmother. Given the advantages of living with Xavier Medley discussed
above, we conclude that the superior court did not abuse
its discretion in concluding that good cause had been shown
to deviate from the ICWA preferences in adoption matters.
C. Emotional
Needs
"The real question," according to Jenny, "is not which [emotional]
bond is more 'important,' but whether a preponderance of the
evidence demonstrates that the bond between Mr. Medley and N.P.S.
was so much more significant to N.P.S.'s emotional well-being than
that between N.P.S. and Jenny and his brother that there
is good cause to override the ICWA preference." The "preponderance
of the evidence" language is inappropriate here. It is a
distortion to treat the question of N.P.S.'s emotional needs as
if it were the only factor in Xavier's favor. In
view of the total picture, we find no abuse of
discretion.
D. Summary
The superior court's application of ICWA to this case was
entirely proper. None of its factual determinations is clearly erroneous,
and it did not abuse its discretion when weighing the
various factors, most of which support granting Xavier's petition. Xavier
Medley has been a de
facto
father to N.P.S. for almost all of N.P.S.'s life, and
that weighs heavily in favor of allowing Xavier to become
N.P.S.'s de
jure
father. We are satisfied that the superior court did not
err when it found that living with Xavier would be
in the best interests of N.P.S.
IV. CONSENT
Jenny's final argument is that the superior court improperly waived
the written consent of N.P.S. to his adoption by Xavier
Medley. After finding that "[N.P.S.]'s choice is clear," the superior
court stated that in N.P.S.'s best interests it "could dispense
with his consent to be adopted." This issue grows out
of several statutory provisions and rules. Alaska Statute 25.23.040(5) and
Adoption Rule 9(c) [FN4]
both require the written consent of a minor who is
at least ten years old before that minor may be
adopted. Rule 9(c) requires that the form be signed in
the presence of the court. Both allow the court to
waive the requirement of written consent in the best interests
of the child.
FN4.
Adoption Rule 9(c) states in part:
Consent
By a Minor.
(1) A consent by a minor child over the age
of 10 to the child's adoption must be signed in
writing and must be in the presence of the court
unless the court in the best interest of the minor
dispenses with the minor's consent or the requirement that the
child consent in court.
Jenny contends that waiver is not allowed in the case
of Native children, citing Adoption Rule 9(b).
[FN5] The purpose of Rule 9(b) is to insure that
when written consent is required by some statutory provision (probably
AS 25.23.040), such consent must occur in court. This is
to afford the court an opportunity to ascertain whether the
parties have taken ICWA into account. Here, the record reflects
that ICWA has been accorded painstaking *940
consideration, and so the purpose of Rule 9(b) has been
satisfied. Because the superior court properly waived consent in this
case, the requirement that consent occur inside of court (rather
than elsewhere) is irrelevant.
FN5.
That rule provides in part:
Consent
or Relinquishment Involving an Indian Child.
A consent or relinquishment involving an Indian child must be
signed in a hearing in the presence
of a judge unless the consent is by an agency.
In addition to the explanations required by paragraph (d), the
court shall inquire as to what efforts have been made
to comply with the placement preferences of 25 U.S.C. Section
1915(a).
V. CONCLUSION
The superior court considered the relevant factors in this case
thoroughly and fairly. Its factual determinations were not clearly erroneous,
and it does not appear to have attached undue weight
to any one factor. Consent was properly waived. We therefore
AFFIRM the superior court's grant of Xavier Medley's petition to
adopt N.P.S.
868 P.2d 934
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