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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ted W. v. State, Dept. of Health & Social Services, Office of Children's Services (03/27/2009) sp-6349

Ted W. v. State, Dept. of Health & Social Services, Office of Children's Services (03/27/2009) sp-6349, 204 P3d 333

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.

            THE SUPREME COURT OF THE STATE OF ALASKA

TED W., )
) Supreme Court No. S- 13130
Appellant, )
) Superior Court No. 3AN-07-00259 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH ) No. 6349 March 27, 2009
& SOCIAL SERVICES, OFFICE )
OF CHILDRENS SERVICES, )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:   Dianne Olsen,  Law  Office  of
          Dianne   Olsen,  Anchorage,  for   Appellant.
          Michael   G.  Hotchkin,  Assistant   Attorney
          General,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee  State
          of  Alaska.  Angela Greene, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender, Anchorage, for Mother.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, and Winfree, Justices.  [Matthews,
          Justice, not participating.]

          FABE, Chief Justice.

I.   INTRODUCTION
          This appeal arises from the superior courts decision to
allow  a  mother  to revoke the Indian custodian status  for  her
childs father, whose own parental rights to the child had already
been  terminated.   The  fathers  status  as  the  childs  Indian
custodian under the Indian Child Welfare Act was based solely  on
the  mothers temporary transfer of physical care and  custody  of
the child to the father after termination of his parental rights.
After  the  Office of Childrens Services (OCS) removed the  child
from  the father and became the childs temporary legal custodian,
the  mother joined in OCSs motion to terminate the fathers status
as  the  childs  Indian custodian.  The superior court  correctly
reasoned that because the Indian custodianship was created solely
by  the mothers temporary placement of the child with the father,
that  custodianship could be revoked by the mother who  acted  in
concert  with  OCS as the childs legal custodian.   We  therefore
affirm the superior courts decision.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Danny  was  born in November 1998 to Ted  and  Joanne.1
Danny is a member of the Native Village of Fort Yukon.2
          Teds  parental rights to Danny, as well  as  to  Dannys
half-sister  Teena,  were  terminated in  April  2001.3   Joannes
parental rights remained intact.  In affirming the termination of
Teds  parental rights, we described Teds long history of  alcohol
abuse,  violence,  and incarceration, including  convictions  for
manslaughter,  malicious destruction of  property,  and  criminal
mischief as well as multiple convictions for assaulting Joanne in
the childrens presence and assaulting Teenas mother while she was
pregnant.4  Ted appears to have stopped drinking in 2004, but  he
relapsed on at least one occasion in the fall of 2007 when he was
arrested and incarcerated for driving under the influence.
          With  Joannes permission, Ted began having unsupervised
visits  with  Danny during weekends in 2002.  By 2007  Danny  was
spending most weekends at Teds home, from the time Ted picked him
up at school on Friday until Ted dropped him off on Sunday night.
In  late  spring  of 2007, Ted tried to return Danny  to  Joannes
care,  but  no one was home.  OCS had taken temporary custody  of
four of Dannys half-siblings who had been living at the home that
Joanne  shared with the half-siblings father.  Ted recalled  that
shortly before OCS told him to not return Danny to Joanne, Joanne
asked him to keep Danny because she didnt want the state involved
with  [Dannys] life.  Danny continued to live with Ted on a full-
time  basis  until August 2007 when OCS removed Danny  from  Teds
care and filed an emergency petition for adjudication of child in
need  of aid (CINA) and for temporary custody.  A few days  after
Danny  was placed in emergency foster care, he moved to the  home
of  his paternal aunt and supervised visits were arranged for Ted
and Joanne.
     B.   Proceedings
          On  August  8, 2007, OCS removed Danny from Teds  home,
and the next day, it filed an emergency petition for adjudication
of  child in need of aid and for temporary custody.   Noting that
Teds  parental rights to Danny had been terminated and  that  OCS
had  substantiated that Ted sexually abused his daughter in 2002,
the  petition concluded that OCS believed that Danny was a  child
in  need of aid because Joanne had left him with someone who  has
no legal rights and is a known sexual offender.
          Superior Court Master William Hitchcock held the  first
          hearing on the petition on August 10.  OCS requested that the
trial  court  appoint  counsel  to  represent  Ted  and  that  it
determine  whether  Ted  was Dannys Indian  custodian  under  the
Indian  Child  Welfare Act (ICWA).  OCS also requested  that  the
probable  cause  hearing be continued until Ted was  represented.
OCS later stipulated that Ted was an Indian custodian under ICWA:
          Were  presented  with  the  somewhat  unusual
          situation of a father, who has previously had
          his   parental  rights  terminated,   deemed,
          according to the language of ICWA, as someone
          who  a  parent transferred temporary physical
          care,  custody  and control to.   Today,  the
          department  is  agreeing  that  [Ted]  is  an
          Indian custodian under that definition.
Joanne  remarked  that she did not oppose  the  father  being  an
Indian custodian.  The superior court granted Teds request to  be
an  Indian custodian in September 2007, basing its order upon  an
agreement by all parties.
          In  October 2007 the individual case plans for Ted  and
Joanne  had  been established, requiring both of them  to  obtain
substance  abuse  evaluations  and treatments,  attend  parenting
classes,  and participate in other activities tailored  to  their
needs.   By  May 2008 Ted had completed all aspects of  his  case
plan except for obtaining a sex offender assessment and following
the  subsequent recommendations.  By then Joanne had been working
towards  completing her case plan and assuming sole physical  and
legal  custody  of  Danny, but she had  yet  to  find  affordable
housing.
          In  a  hearing before the master in December 2007,  Ted
requested a trial because he planned to contest that Danny was  a
child in need of aid.  In February 2008 Superior Court Judge  Sen
K.  Tan held a pre-trial conference, where OCS argued that it was
not  necessary to hold a trial to adjudicate whether Danny was  a
child  in  need  of  aid.  Joanne supported OCSs  position.   OCS
explained that Ted, the only party contesting Dannys status as  a
child  in  need of aid, should be removed as a party to the  case
because his Indian custodianship had dissolve[d].  During the pre-
trial  conference,  the parties and the court  agreed  that  they
would  brief the issue of dismissing Ted as a party to the  case.
Soon  after,  Joanne, OCS, and Dannys guardian ad litem  filed  a
stipulation  that  Danny  was  a child  in  need  of  aid.   That
stipulation was accepted by the superior court.
          In  March 2008 OCS filed a motion requesting that  Teds
designation  as  Dannys Indian custodian be  terminated.   Joanne
joined  the motion.  Dannys guardian ad litem did not oppose  the
motion  on the condition that Danny would have supervised  visits
with  Ted.  In the guardian ad litems view, it was in Dannys best
interests  to  continue visitation with Ted because  they  had  a
relationship  with  each  other.   Ted  opposed  OCSs  motion  to
terminate his status as an Indian custodian.  The superior  court
granted the motion to terminate Teds Indian custodianship in  May
2008,  reasoning  that  OCS and Joanne had effectively  withdrawn
Teds  Indian  custodian status because they were in agreement  on
the  issue and together they have sole legal and physical custody
of  [Danny].  The trial court further concluded that a parent and
an  Indian  custodian cannot both be parties to a  CINA  case  in
which ICWA applies.
          Ted appeals.
III. STANDARD OF REVIEW
          We  review on a de novo basis such questions of law  as
the  superior  courts  interpretation of Indian  custodian  under
ICWA.5  We adopt the rule of law that is most persuasive in light
of  precedent, reason, and policy.6  Absent plain error, we  will
not  review  issues  that were not raised in  the  trial  court.7
Plain  error exists where an obvious mistake has been made  which
creates a high likelihood that injustice has resulted.8
IV.  DISCUSSION
     A.   It  Was Not Plain Error for the Superior Court To Grant
          Teds   Motion   To  Be  Designated  as  Dannys   Indian
          Custodian.
          
          The   superior  court  granted  Teds  request   to   be
designated  as Dannys Indian custodian [b]ased upon an  agreement
by  all parties that Ted was an Indian custodian under ICWA.  The
Act  defines Indian custodian as any Indian person who has  legal
custody  of an Indian child under tribal law or custom  or  under
State  law  or  to  whom temporary physical  care,  custody,  and
control  has been transferred by the parent of such child.9   OCS
now  argues that granting Teds motion to be designated as  Dannys
Indian custodian was plain error because evidence supporting Teds
status  as an Indian person under ICWA was never presented10  and
because  the  parties  never  agreed  that  Ted  satisfied   this
requirement  for  being  an Indian custodian.   But  because  the
parties agreed to treat Ted as Dannys Indian custodian and  never
raised  his  qualifications or his status  as  an  Indian  person
below,  we  cannot  determine on this record that  granting  Teds
request for Indian custodian status was plain error.
          We  will  not consider issues on appeal that  were  not
raised  below absent plain error, which exists where  an  obvious
mistake  has  been  made  which creates a  high  likelihood  that
injustice  has  resulted.11  We have recognized that  it  is  not
erroneous  for  a  trial court to rely on a  stipulation  of  the
parties, citing the general rule that [a] party may not challenge
on  appeal  an order that he has agreed to in the trial  court.12
Similarly, parties are bound by their judicial admissions in  the
superior court.13  In A.B.M. v. M.H., we rejected the prospective
adoptive  parents  contention that the child was  not  an  Indian
child  under  ICWA because they signed an adoption  questionnaire
that  fully  set  out the definition of Indian  child,  and  they
clearly  indicated in the questionnaire that [the  child]  is  an
Indian child, that her tribal affiliation is Bethel, and that she
is subject to the provisions of the Indian Child Welfare Act.14
          OCS  maintains that while it stipulated that Joanne had
transferred physical care, custody, and control of Danny to  Ted,
it  never  agreed  that  Ted is an Indian  person.   But  at  the
continued probable cause hearing, OCS remarked:
          Were  presented  with  the  somewhat  unusual
          situation of a father, who has previously had
          his   parental  rights  terminated,   deemed,
          according to the language of ICWA, as someone
          who  a  parent transferred temporary physical
          care,  custody  and control to.   Today,  the
          department  is  agreeing  that  [Ted]  is  an
          Indian custodian under that definition.
Joanne also indicated that she did not oppose the father being an
Indian  custodian.   At  a later hearing, in  which  the  parties
discussed with the court their plan to brief the question whether
Teds  Indian  custodianship could be terminated, the trial  court
asked  the parties if there were issues of fact that we  need  to
resolve  before  I can tackle the issue of whether  [Ted]  is  an
Indian  custodian  and  the parties agreed  that  there  were  no
factual  issues to be resolved.  Thus, this issue is not properly
before us.15
     B.   Teds Indian Custodianship Was Effectively Revoked Under
          the Facts of This Case.
          
          The  superior court ruled that together, Joanne and OCS
could  revoke Teds designation as the Indian custodian of  Danny.
The  court  reasoned  that the revocation was  effective  because
Joanne  and OCS agreed that Teds Indian custodianship  should  be
terminated and together they have sole legal and physical custody
of  the  child.   Ted contends that his status as  Dannys  Indian
custodian cannot be revoked during CINA proceedings because [t]he
role  of  an Indian custodian should logically end when the  CINA
case ends.
          The  purpose  of  the  Indian custodian  status  is  to
recognize  and  protect the practice of parents  in  many  Indian
communities who entrust their children temporarily to the care of
extended family members and to mandate that such entrustment does
not constitute abuse or neglect.16  As explained by the House  of
Representatives in introducing the term Indian custodian:
          [B]ecause  of the extended family concept  in
          the  Indian community, parents often transfer
          physical custody of the Indian child to  such
          extended family member on an informal  basis,
          often  for  extended periods of time  and  at
          great distances from the parents.  While such
          a  custodian may not have rights under  State
          law,  they do have rights under Indian custom
          which this bill seeks to protect . . . .
Thus,  the  Indian  caretakers status as an Indian  custodian  is
derived  from the temporary transfer of care of the Indian  child
by  the  parent.  But Congress did not provide in ICWA  that  the
Indian custodian could usurp the parents right to raise the child
or  prevent  the  parent  from rescinding the  Indian  caretakers
designation as the childs Indian custodian.17  As long  as  their
parental  rights have not been terminated, parents  retain  legal
custody of their children, affording them the responsibility  for
making major decisions affecting the childs welfare.18
          Here,  it  is  uncontested that Teds status  as  Dannys
Indian  custodian  was created by Joannes temporary  transfer  of
Dannys  physical  care, custody, and control  to  Ted.   And  the
          parties agree that Joanne could have revoked her temporary
transfer  at any time before the CINA proceedings were initiated.
But  they dispute the effect that OCSs removal of Danny from Teds
physical custody may have had on Joannes authority to revoke  the
temporary transfer.
          Ted  argues that when OCS removed Danny from  his  care
and  initiated the CINA proceedings on August 8, 2007, his status
as  Dannys  Indian  custodian was established and  could  not  be
altered  until the end of the proceedings.  Ted reasons that  the
Indian  custodian status exists as of the precise moment  of  the
filing of the child custody proceeding and that [t]he role of  an
Indian  custodian should logically end when the CINA  case  ends.
But Ted cites no authority in support of his position that Joanne
was  not  free  to  revoke his status once the  CINA  proceedings
commenced.   And we have recognized that [b]ecause under  ICWA  a
physical custodians right to care for a child flows solely from a
parents  temporary  transfer  of child-care  responsibility,  the
custodial  relationship logically may end when a  parent  returns
and  reassumes responsibility for the childs care,  custody,  and
control.19
          Ted  further contends that the superior courts  premise
that together OCS and Joanne have sole legal and physical custody
of  Danny is factually incorrect because only OCS has sole  legal
and  physical  custody of Danny.  Ted points to AS  47.10.084(a),
which provides that when a court finds that a child is in need of
aid,   OCS  is  the  childs  legal  custodian.   But  under  that
provision,  parents  retain residual rights and  responsibilities
that  may  include,  but  are  not  limited  to,  the  right  and
responsibility  of  reasonable visitation, consent  to  adoption,
consent  to marriage, consent to military enlistment, consent  to
major  medical  treatment  .  . . , and  the  responsibility  for
support  .  .  . .20  As OCS notes, examination of  the  residual
rights  retained  by  a  parent indicates  that  the  legislature
intended  to  reserve to parents the ability to have  input  into
decisions  of  great  importance to a  childs  future.   And  the
ability to withdraw a temporary transfer of physical custody of a
child  is  of  the same order of importance as those provided  as
examples in AS 47.10.084.21
          Because  the  only basis for Teds status as  an  Indian
custodian  was Joannes temporary transfer, because she  possessed
the  authority to revoke the transfer at any time before OCS took
custody  of  Danny, and because Joanne and OCS acted  jointly  to
rescind  the earlier transfer, the condition under which Ted  met
ICWAs   definition  of  Indian  custodian  no  longer  existed.22
Accordingly,  we  affirm the trial courts order terminating  Teds
designation as an Indian custodian.23
V.   CONCLUSION
          For  the  above reasons, we AFFIRM the superior  courts
decision  to  terminate Teds Indian custodianship on the  grounds
that  in  this  case  the  Indian custodianship  was  effectively
revoked.
_______________________________
     1     We adopt the pseudonyms used by the parties to protect
the family members privacy.

     2     The tribe was notified of its right to intervene,  but
it  declined  to  do  so.  Through Joannes affiliation  with  the
Native Village of Gambell, Danny is eligible for membership  with
that tribe.  Gambell was also notified of its right to intervene,
and  it  informed the superior court that it did  not  intend  to
intervene.

     3     T.D.W. v. State, Dept of Health & Soc. Servs., Div. of
Family  & Youth Servs., Mem. Op. & J. No. 10177, 2002 WL  863289,
at *3 (Alaska, May 1, 2002).

     4    Id. at *1-2.

     5    Pam R. v. State, Dept of Health & Social Servs., Office
of Childrens Servs., 185 P.3d 67, 71 (Alaska 2008).

     6     Gilbert  M. v. State, 139 P.3d 581, 586 (Alaska  2006)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     7    D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001).

     8    Id. at 668 (internal quotation marks omitted).

     9     25 U.S.C.  1903(6) (2000).  ICWAs definition of Indian
custodian  contains  two classifications  of  Indian  caretakers.
Craig  J. Dorsay, The Indian Child Welfare Act and Laws Affecting
Indian Juveniles Manual 89 (1984).  Only the second class  Indian
persons to whom temporary physical custody of an Indian child has
been transferred  is implicated in this case.

     10    25 U.S.C.  1903(3) defines Indian as any person who is
a  member  of an Indian tribe, or who is an Alaska Native  and  a
member  of a Regional Corporation as defined in section  1606  of
Title 43.

     11     D.J.,  36  P.3d at 667-68 (internal  quotation  marks
omitted).

     12    R.C. v. State, Dept of Health & Social Servs., 760 P.2d
501,  505  (Alaska  1988) (alteration in  original  and  internal
quotation marks omitted).

     13     A.B.M.  v.  M.H., 651 P.2d 1170, 1174  (Alaska  1982)
(citing  IX  J.  Wigmore,  Evidence   2588,  at  586  (1940);  C.
McCormick, Law of Evidence  262, at 630 (1972)).

     14    Id.

     15     Moreover, OCS fails to point to any evidence  in  the
record  that  would support a finding that Ted is not  an  Indian
person.

     16     See H.R. Rep. No. 95-1386, at 10 (1978), reprinted in
1978 U.S.C.C.A.N. 7530, 7532 (observing that many social workers,
ignorant  of  Indian  cultural values and social  norms,  .  .  .
frequently  discover  neglect or abandonment  where  none  exists
because  they  misunderstand  the  dynamics  of  Indian  extended
families that may include more than a hundred relatives  who  are
considered  close  and responsible family  members  and  to  whom
parents can entrust care of their children); id. at 20, reprinted
in  1978  U.S.C.C.A.N. 7530, 7543 (explaining that ICWA seeks  to
protect  the  rights  under Indian custom  of  people  with  whom
parents entrust temporary care of their children).

     17     See  id. (noting that among the rights of the  Indian
custodian that ICWA seeks to protect is the right to protect  the
parental  interests  of the parents but not  placing  the  Indian
custodians rights above those of the parents).

     18     D.J.  v. P.C., 36 P.3d 663, 670 & n.26 (Alaska  2001)
(internal quotation marks omitted).

     19    Pam R. v. State, Dept of Health & Social Servs., Office
of  Childrens Servs., 185 P.3d 67, 71 (Alaska 2008).  Pam  R.  is
distinguishable from the present situation because Joanne did not
reassume responsibility for Dannys care when she asked the  court
to  terminate Teds Indian custodianship of Danny while Danny  was
in the States custody.

     20    AS 47.10.084(c).

     21    Because OCS agreed with Joanne that Teds custodianship
should  be  terminated, we need not address the question  whether
Joanne   could  revoke  Teds  Indian  custodianship   over   OCSs
objection.  Moreover, the parties do not raise any argument  that
Joanne lacked the capacity to revoke the Indian custodianship  or
that she was coerced by OCS into consenting to its termination.

     22    Ted argues that the superior court erred in failing to
address  his contention that a decision to terminate  his  Indian
custodianship required finding that doing so would be  in  Dannys
best  interests.  But once Ted no longer satisfied the  condition
under  which his Indian custodian status was created, he  had  no
authority for asserting that it was in Dannys best interests that
he be a party to the case.

     23     In affirming on this ground, we need not address  the
trial   courts  alternative  ground  for  revoking  Teds   Indian
custodianship and thus do not reach the question whether  both  a
parent  and an Indian custodian can be parties to a CINA case  in
which  ICWA applies.  See M.J.S. v. State, Dept of Health &  Soc.
Servs.,  Div. of Family & Youth Servs., 39 P.3d 1123,  1126  n.12
(Alaska 2002) (Our decision affirming the superior court on  this
ground  makes  it unnecessary to address the courts  findings  on
alternative grounds . . . .).

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