Shageluk IRA Council v. State, Office of Children's Services, Supreme Court No. S-13172 (Alaska 3/18/2009) (Alaska, 2009)

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Jurisdiction: Alaska Supreme/Appellate Courts

Decision Date: 3/18/2009

Shageluk IRA Council v. State Shageluk IRA Council v. State, Office of Children's Services, Supreme Court No. S-13172 (Alaska 3/18/2009) (Alaska, 2009)

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SHAGELUK IRA COUNCIL, Appellant,
v.
STATE OF ALASKA, OFFICE OF CHILDREN'S SERVICES, Appellee. Supreme Court No. S-13172 Supreme Court of Alaska March 18, 2009

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Marvin Hamilton, Judge, Superior Court Nos. 4BE-06-105/113 CP. -20.

Carol L. Childress, Associate Counsel, Michael J. Walleri, General Counsel, Tanana Chiefs Conference, Fairbanks, for Appellant.

Megan R. Webb, Assistant Attorney General, Talis J. Colberg, Attorney General, Anchorage, for Appellee.

Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.

MEMORANDUM OPINION AND JUDGMENT

These are consolidated child-in-need-of-aid cases involving two Indian children. Their tribe petitioned the superior court to transfer jurisdiction to the tribe under the Indian Child Welfare Act. The superior court denied the petition on the

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grounds of good cause, concluding that good cause was present because the proceedings were at an advanced stage when the request was made and the tribe had been on notice of the proceedings from the outset. We affirm.

These cases involve two young children, Della D. and Rachel D. Their mother, Linda D is dead. She was a member of the Shageluk IRA Council ("Shageluk" or "the Tribe"). Their father, Everett D is a member of the Tribe. Because of their parents' history of alcohol abuse, violence, and failure to adequately care for the children, Della and Rachel were removed from their parents' home. Shageluk took custody of Della shortly after her birth in May 2005 and the State, Office of Children's Services, removed Rachel in September 2006 when she was five months old.

The State filed a "Petition for Adjudication of Child in Need of Aid and for Temporary Custody" regarding Rachel on September 23, 2006. The next day a hearing on the petition was held. At the conclusion of the hearing the superior court entered a temporary custody order committing Rachel to the temporary custody of the State. The order also authorized the State to place Rachel in the home of Stella S Linda's niece, who lives in Anchorage. The temporary order was signed on September 26, 2006, and a copy of it was served on Shageluk. Also on September 26 the State sent a "Notice of Rights under the Indian Child Welfare Act" to Shageluk. The notice stated, among other things, that the next hearing in the case was scheduled for December 14, 2006, that if the Tribe wished to intervene in the case it should inform the court, and that if the Tribe wished to intervene and desired additional time the scheduled court hearing could be delayed for up to twenty days.

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Della is a child with special needs. On October 8, 2006, the Shageluk Tribal Court signed an order referring jurisdiction over her to the State, noting that it "has considered the severity of this case and has reconsidered jurisdiction. " Three days later the State filed a "Petition for Adjudication of Child in Need of Aid and for Temporary Custody" in Della's case. On October 13, 2006, a hearing on the petition was held, at which an ICWA worker representing Shageluk was present. Following this hearing, on October 16, 2006, the superior court entered an order committing Della to the custody of the State and authorizing the State to place Della with Barbara G a relative of her mother, in Fairbanks.

On October 30, 2006, the superior court entered an order consolidating the children's cases. On November 14, 2006, the State sent a "Notice of Rights under the Indian Child Welfare Act" concerning Della to Shageluk stating, among other things, that the next hearing was scheduled for December 14, 2006, that an adjudication and disposition trial was scheduled for January 11, 2007, that if the Tribe wished to intervene in the case it must inform the court in writing, and that if the Tribe wished to intervene and desired additional time the next scheduled court hearing could be delayed up to twenty days.

The adjudication and disposition trial scheduled for January 11, 2007, was continued at the request of the State. In May 2007 the State, the children's guardian ad litem, and Everett stipulated for the adjudication of the children as children in need of aid and for their commitment to the custody of the State for up to two years.

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On June 28, 2007, a permanency hearing was held. The order following the permanency hearing noted that "the father has not made substantial progress to remedy his conduct" and that the permanent plan for the children was adoption with "a concurrent plan of reunification with their father. " The children continued to live with the foster parents with whom they were initially placed. The June 28, 2007 order noted that their "current placement is appropriate and in their best interest. "

On November 18, 2007, the State filed a petition for termination of Everett's parental rights with respect to both children. On December 18, 2007, the State requested an order for mediation. Everett was considering voluntarily relinquishing his parental rights. It was thought that Della's foster parent, who was also her potential adoptive parent, was the source of Everett's reluctance to voluntarily relinquish his parental rights because she was reluctant to allow him to visit.

On January 10, 2008, the superior court entered an order for mediation. A few days later, on January 14, 2008, the superior court entered a pretrial order, scheduling trial for the week of May 12, 2008, and a pretrial conference for late April. On January 15, 2008, the State sent Shageluk a "Notice of Rights under the Indian Child Welfare Act, " noting that the State sought termination of Everett's parental rights and setting out the dates of the pretrial conference and the trial. The notice provided that "if the Tribe wishes to intervene in this case, it must inform the court in writing. "

On March 6, 2008, Shageluk moved to intervene pursuant to section 1911(c) of the Indian Child Welfare Act (ICWA). Attached to the motion was a letter

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PAGE CONTAINED FOOTNOTES

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from Shageluk stating that the Tribe "strongly disagreed" with the petition seeking termination of Everett's parental rights. The letter also noted that "on January 10, 2008, the Shageluk tribe held a meeting and decided to intervene on this case. " The motion was granted on March 18.

In the interim, on March 13, 2008, mediation occurred and resulted in an agreement that contemplated that the foster parents would arrange periodic contact between Everett and Della and Rachel. The mediation agreement also provided for visitation between Everett and his daughters in the event their foster parents adopted them. The Tribe did not participate in the mediation.

The Tribe participated in the pretrial conference on April 24, 2008. Although the State predicted that the case would not be going to trial and that what was needed was for Everett to come in "to sign paperwork, " the State also suggested that the trial date of May 14 be retained. The trial court so ordered.

On May 6, 2008, Shageluk filed a petition pursuant to subsection 1911(b) of ICWA to transfer jurisdiction from the superior court to the Shageluk Tribal Court. Attached to the petition was a letter signed by Shageluk dated May 5, 2008, stating that "the Shageluk Tribe would like to take over jurisdiction of this case because we are not supporting any adoption of our tribal members. " The letter also stated that the Tribe would like to take Della from her foster and prospective adoptive parent Barbara G. and

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place her with a specified paternal relative. With respect to Rachel, the letter stated that Shageluk would like to have her stay in her present placement. With its petition to transfer, Shageluk also filed a notice of agreement signed by Everett stating that he agreed to the proposed jurisdictional transfer and an order signed by Shageluk's Tribal Court stating that it "ACCEPTS jurisdiction of these Child in Need of Aid proceedings that are to be transferred from the state court to this Tribal Court. "

On May 14 the parties appeared in court as scheduled but rather than addressing the termination of Everett's parental rights, they discussed procedures for resolving the petition to transfer jurisdiction. Two days later the State filed an opposition to the Tribe's motion to transfer, arguing based on guidelines issued by the Bureau of Indian Affairs (BIA) defining "good cause" that there was good cause to deny the request because the case was at an advanced stage and the petition was not filed promptly. The State further argued that good cause for denial existed because the children were "bonded to their caregivers" and had "successfully melded into their preadoptive families' everyday lives. " The State contended that "moving the girls from these stable homes would be devastating to their emotional health and mental wellbeing. " The State also argued that good cause for denial existed because the tribal court had already decided "what it plans to do" without hearing any evidence and was therefore biased. The guardian at litem joined in the State's opposition to the transfer motion.

The Tribe responded, arguing that good cause to deny the transfer did not exist. The Tribe argued that its transfer petition was timely because the Tribe did not receive notice of the termination trial until January 19, 2008, and the Tribe submitted its petition to transfer jurisdiction before the termination trial began. Further, the Tribe argued that the best interests of the children were not properly relevant in making a good cause determination with respect to a petition to transfer jurisdiction. In addition the

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Tribe asserted that alleged tribal court bias was an inappropriate consideration under the BIA guidelines.

The superior court denied the petition to transfer jurisdiction to the tribal court on June 19, 2008. The court explained its reasoning on the record. It rejected the State's argument regarding the best interests of the children. The court noted that "it's not firmly established in Alaska that this is a factor that should be weighed in considering transfer" and went on to reason that because it did not know where the tribal court would place Della and Rachel or what placement was best for each child, it did not have the requisite information to reach a conclusion about the girls' best interests. The court also declined to find that the tribal court had prejudged the case and instead presumed that the court would act judiciously. Finally, the court addressed the timeliness objection the State made based on the BIA guidelines. The court found that transfer was inappropriate "because the case is now so far advanced, " noting that "this case could not be at a more advanced stage of proceeding unless we were already after termination. " The court also concluded that the Tribe's request was not prompt.

Shageluk appeals the denial of the petition to transfer.

Shageluk presents its argument in its opening brief under five headings. At no point does it argue that the superior court was wrong in concluding that the proceedings were at an advanced stage and that the Tribe had not acted promptly in

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seeking transfer. In the paragraphs that follow we quote the caption of each argument and briefly describe Shageluk's contentions. Then we state our decision concerning the argument.

ARGUMENT 1: "THE TRIAL COURT ERRED IN DENYING A TRANSFER OF JURISDICTION IN A CHILD IN NEED OF AID (CINA) PROCEEDING TO THE SHAGELUK IRA COUNCIL. "

This argument summarizes the requirements of subsection 1911(b) of ICWA: "This provision requires that the state court transfer a child custody proceeding involving an Indian child to the jurisdiction of the tribe, in the absence of good cause to the contrary or objection by either parent, when the Indian child's tribe petitions the state court. " The argument goes on to recognize that the issue when the Tribe requested transfer "was whether there was `good cause' to the contrary. " The argument proceeds to recognize that the guidelines promulgated by the BIA supply "some suggested good cause factors" that are not necessarily binding on the courts.

DECISION:

Despite the caption, Shageluk does not make an argument here that the superior court erred in finding that there was good cause to deny its transfer petition. No decision is required because no argument is made.

ARGUMENT 2: "THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE STANDARDS SET OUT IN THE BIA GUIDELINES. "

The caption notwithstanding, the argument presented by Shageluk here seems to be that underlying the superior court's decision was a concern that the Shageluk Tribal Court was incompetent.

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DECISION:

We have thoroughly reviewed the transcript of the proceedings and find that this argument lacks merit. The court specifically refused to accept the State's argument that the tribal court was incompetent or biased.

ARGUMENT 3: "THE TRIAL COURT ERRED BY NOT CONSIDERING THE IMPORTANCE OF THE SHAGELUK IRA COUNCIL INTEREST IN PROTECTING THEIR COMMUNITY VALUES, CULTURAL VALUES, AND THE CUSTOMS OF THE VILLAGE. "

This argument merely describes the organization of Shageluk and its tribal court, arguing that the tribal court is both competent and concerned with the welfare of Della and Rachel. The body of the argument does not contend that the court ignored Shageluk's interests.

DECISION:

No decision is required because no argument is made.

ARGUMENT 4: "THE TRIAL COURT ERRED IN DENYING A TRANSFER OF JURISDICTION IN A CHILD IN NEED OF AID (CINA) PROCEEDINGS TO THE SHAGELUK IRA COUNCIL PRIOR TO A TERMINATION PROCEEDING WAS CONTRADICTIVE TO THE ICWA INTENTIONS. "

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This argument reiterates the requirements of subsection 1911(b) of ICWA. It notes that the act itself does not specify any deadlines for making transfer requests and that courts have discretion to allow late transfer requests, and it observes that the BIA guidelines state that ICWA and its guidelines should be liberally construed in light of ICWA's purposes.

DECISION:

No decision is required because no argument is made.

ARGUMENT 5: "THE TRIAL COURT ERRED BY IMPROPERLY WEIGHING THE BEST INTERESTS OF A CHILD IN A TRANSFER OF JURISDICTION PROCEEDING. "

Shageluk implies here that the trial court based its decision not to transfer jurisdiction on the best interests of the children. It argues that children's best interests should not be taken into account in deciding transfer petitions.

DECISION:

A review of the transcript of the oral argument concerning the transfer petition reveals that the superior court expressed at the outset of the argument an interest as to what the tribal court would do if jurisdiction were transferred to the tribal court: "What would happen in the children's lives tomorrow if I transferred jurisdiction to you today? " Counsel replied that the tribal court would act responsibly and judiciously:

The tribe acts in the best interest of the child, so they would be very thorough and look very thoroughly at the matter at hand. . . . And, no, they would not do anything tomorrow in regards to the children, but they would look very thoroughly in regards to the children, at the matter, and look at it in the full scope of the matter and do what they feel is the best interest of the child.

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After considering all of the parties' arguments, the trial court concluded that it would not consider the children's best interests in deciding the transfer petition. Shageluk's

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argument under this caption fails because its premise is wrong: the trial court did not weigh the best interests of the children in deciding the transfer question.

Having considered each of the arguments raised by Shageluk in its brief on appeal and finding that none of them has merit, we AFFIRM the judgment of the superior court.

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Notes:

* Entered pursuant to Appellate Rule 214.

The names of the children, parents, and foster parents have been changed to protect the children's privacy. An identical notice concerning Rachel, whose case had been consolidated with Della's, was sent to Shageluk on the same day. Linda had passed away on March 10, 2007. 25 U.S.C. § 1901 et seq. (2006). The full text of section 1911 of ICWA states: Indian tribe jurisdiction over Indian child custody proceedings

(a) Exclusive jurisdiction

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

(b) Transfer of proceedings; declination by tribal court

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes

The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.

According to the State, the state social worker invited the Tribe to attend the mediation shortly after it filed its motion to intervene. The court offered several measures of delay because it found the BIA guideline imprecise: if the relevant time lapse was between Shageluk's receiving notice of the hearing to terminate parental rights in January 2008 and the filing of the transfer petition in May 2008, then the Tribe had waited four months; if the relevant lapse was between the girls being adjudicated children in need of aid and the filing of the petition, the delay was "a year or more"; if the delay was measured from the time the State took custody of the children, the lapse was approximately a year and a half. Regardless, transfer at the time of the request would be "disruptive" and cause additional delay. The court stated concerning the State's argument of bias: I can't make that finding. I don't even know if it's proper to consider what would be the adequacy of the court. But I think that I have to presume, and I do presume in this case, that the Shageluk tribal court would be a competent court, would be an independent court, would be motivated by the state's — of the children's best interests, would not be rash, would not be unfair, but would act judicially. And so I can't deny that based upon the Shageluk court, so I won't deny it on that grounds.

The full text of the trial court's discussion and rejection of the State's argument that best interests should be considered follows: Next will be the children's best interests. And it's not firmly established in Alaska that this is a factor that should be weighed in considering transfer, although, children's best interests is certainly a term that's bandied about in every children's court, anything that you see, but not particularly this issue hasn't been resolved yet.

But it's OCS's position, I believe, that it's in the children's best interests not to have the children move from their current placement, that they've been — the children have been in their current placements, one child for half her life just about; the other child for more than half her life. They're in stable homes. They're first preference, ICWA compliant placements. They have long bonds established. Della has special needs that are being met with Stella, that they're young kids and it would not be in their best interests to move.

I can't make that finding now either, that if — it would be not in their best interests to move, because I think I'd have to assume two things. Number one is that it wouldn't be in their best interests for me to transfer this case — to follow that argument, I'd have to say that I believe that if I transferred this case to Shageluk, Shageluk would, A — tribal court would, A, move the children or at least one child from their current placement and, B, that I find now that that's not in the children's best interests to move at all.

And we're not there yet. And I can't make those assumptions. I can't make the assumption that the Shageluk court would move the children, and I also can't, at this point, without hearing evidence and having a hearing assume that that's a bad thing to move or not move. So, again, I think it's — that's putting the cart before the horse. That's certainly is OCS's concern that if I gave this case to Shageluk, then Shageluk would move the kids, and that's not in their best interests, but I'm not going to make that finding now.

So as much as I can or cannot or should or should not look at the child's best interests, that's not going to influence my decision to transfer the case or not.

In its reply brief Shageluk raises some additional arguments. But because they were not raised in the Tribe's opening brief, they are waived. See K. E. v. J. W 899 P.2d 133 135 n. 2 (Alaska 1995) (citing Dewey v. Dewey, 886 P.2d 623 628 n. 11 (Alaska 1994); Hitt v. J. B. Coghill, Inc 641 P.2d 211 213 n. 4 (Alaska 1982)). Notes:

* Entered pursuant to Appellate Rule 214.

(a) Exclusive jurisdiction

(b) Transfer of proceedings; declination by tribal court

(d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes

So as much as I can or cannot or should or should not look at the child's best interests, that's not going to influence my decision to transfer the case or not.

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Cited By

Cites

Negative Treatment

Notes

STATES

FEDERAL

Shageluk IRA Council v. State Shageluk IRA Council v. State, Office of Children's Services, Supreme Court No. S-13172 (Alaska 3/18/2009) (Alaska, 2009)

STATES

FEDERAL

Shageluk IRA Council v. State Shageluk IRA Council v. State, Office of Children's Services, Supreme Court No. S-13172 (Alaska 3/18/2009) (Alaska, 2009) Copy Citation

Shageluk IRA Council v. State Shageluk IRA Council v. State, Office of Children's Services, Supreme Court No. S-13172 (Alaska 3/18/2009) (Alaska, 2009)