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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bruce L. v. W.E. (2/11/2011) sp-6539

Bruce L. v. W.E. (2/11/2011) sp-6539, 247 P3d 966

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

BRUCE L.,                                            ) 
                                                     )   Supreme Court No. S-13580 
                        Appellant,                   ) 
                                                     )   Superior Court Nos. 3PA-08-00145 PR 
        v.                                           )                             3PA-07-02189 CI 
                                                     ) 
W.E., H.E., & CONNIE J.,                             )   O P I N I O N 
                                                     ) 
                        Appellees.                   )   No. 6539 - February 11, 2011 
                                                     ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Palmer, Kari Kristiansen, Judge. 

                Appearances:   Ann DeArmond, Sterling & DeArmond, P.C., 
                Wasilla,   for   Appellant.     Eric   Conard,   Law   Office   of   Eric 
                Conard   LLC,   Palmer,   for   Appellees   W.E.   and   H.E.         No 
                appearance by Appellee Connie J. 

                Before:     Fabe,   Winfree,   Christen,   and   Stowers,   Justices. 
                 [Carpeneti, Chief Justice, not participating.] 

                WINFREE, Justice. 

I.      INTRODUCTION 

                A biological father appeals from the termination of his parental rights and 

an adoption decree, arguing it was error for the trial court to (1) fail to apply certain 

protections available to him under the Indian Child Welfare Act (ICWA) and (2) find his 

consent   to   the   adoption   unnecessary   under   state   law.      We   vacate   the   trial   court's 

determination   that   the   child   is   not   an   Indian   child   under   ICWA   because   it   is   not 

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explained in the court's written decision why, after the parties to the proceeding took the 

position that the child is an Indian child and that this was an ICWA adoption, the trial 

court sua sponte found and relied on a proof deficiency without giving the father notice 

and opportunity to address it. We also reverse the trial court's determinations that (1) the 

father's efforts to obtain custody through the courts were not justifiable cause for his 

failure to meaningfully communicate with the child during the first year of the child's 

life, and (2) the evidence in the record of the father's indigence did not meet his burden 

of production regarding justifiable cause for his failure to support the child during that 

year. We therefore vacate the termination of the father's parental rights and the adoption 

decree   and   remand   for   further   proceedings   on the   child's   status   as   an   Indian   child, 

possible ICWA protections available to the father, and whether the father unjustifiably 

failed to support the child during the first year of the child's life. 

II.     FACTS AND PROCEEDINGS 
        A.      Timothy's First Year of Life1 

                1.      Pre-litigation 

                Roughly one month before his son Timothy's birth, Bruce L. met with a 

married couple (the Eberts) interested in adopting Timothy.  Bruce informed the Eberts 

he would not consent to the adoption.           Bruce anticipated being away on a commercial 

fishing job on Timothy's expected birth date and gave the Eberts temporary permission 

to take care of Timothy. 

                When Connie J. gave birth to Timothy on July 19, 2007, the Eberts were 

present.   Connie did not include the father's information on the birth certificate.  Connie 

signed a document prepared by the Eberts' attorney that gave the Eberts permission to 

take care of Timothy in contemplation of adoption.  Connie's signature attested: 

        1       Pseudonyms are used for all persons involved. 

                                                  -2-                                               6539 

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               I am an Alaska Native, having come from the Alaska Native 
               Village of Unalakleet.  As a result of my Unalakleet lineage 
               I believe that my child is an Indian Child under federal law 
               because     I  believe  that  my   child   would    be  entitled  to 
               membership within the Alaska Native Village of Unalakleet. 

The document also stated Connie understood she had to appear in court to have her rights 

explained to her before she could consent to an adoption or permit termination of her 

parental rights "[b]ecause [her] child is an Indian Child." The Eberts took Timothy home 

from the hospital. 

               Bruce returned from his fishing job in July and called Connie at work early 

in August, leaving a message.       Bruce testified that when Connie returned his call on 

August 9 he asked for visitation with Timothy and offered to pay support, but she told 

him to contact the Eberts or their attorney.      Bruce also testified that he telephoned the 

Eberts' attorney three or four times in August to request visitation with Timothy, but 

although the attorney said he would confer with the Eberts, Bruce never heard back from 

anyone about the possibility of visitation.      Mr. Ebert testified he recalled his attorney 

receiving one phone call from Bruce, when the attorney gave Bruce the case number for 

the adoption proceeding filed in August.  Bruce also testified that he called the Eberts at 

their home in late August or September 2007, a female voice answered and put him on 

hold when he asked to speak with Mr. Ebert, and the call was disconnected without 

anyone speaking to him.  Mr. Ebert disputed that anyone in his household received this 

call from Bruce. 

               2.      Initial adoption petition at one month 

               The Eberts filed a verified petition to adopt Timothy on August 21, 2007. 

In this petition they stated, under oath: 

               [Timothy] is an "Indian Child" as that term is defined by 25 
               USC  1901 et seq. based [on] [Timothy] being eligible for 
               membership in an Alaska Native Village as defined in 43 

                                               -3-                                          6539
 

----------------------- Page 4-----------------------

                USC  1610(b)(1).   Pursuant to 25 USC  1903(5) it appears 
                that [Timothy]'s Indian Tribe is Native Village of Unalakleet. 

The   Eberts   also   stated   they   and   Connie   would   observe   ICWA's   requirements   for 

Connie's consent to adoption and voluntary relinquishment of parental rights "[b]ecause 
[Timothy] is an Indian Child."2  The Eberts asserted Bruce's consent to the adoption was 

unnecessary because Bruce had not legitimated Timothy under Alaska law.3 

                Bruce filed an acknowledgment of paternity and affidavit of paternity in the 

adoption case on September 25, 2007, but those documents failed to legitimate Timothy 
under state law because Connie did not sign them.4            On the same day, Bruce moved for 

custody and asked to be a party to the case. In October the Eberts served notice on Bruce 

and the Native Village of Unalakleet (Tribe) that there would be a November 14 hearing 

on the adoption petition. 

        2       See 25 U.S.C.  1913(a), (c) (providing (1) a parent cannot voluntarily 

consent to termination of parental rights to an Indian child within ten days after birth; (2) 
such     consent    must    be  "executed     in   writing,"    "recorded    before    a  judge,"    and 
"accompanied by the presiding judge's certificate that the terms and consequences of the 
consent were fully explained in detail" in a language the parent understands and the 
parent fully understood; and (3) such consent "may be withdrawn for any reason" prior 
to the final decree of termination or adoption). 

        3       See   AS   25.23.050(a)(3)   (incorporating   AS   25.23.040(a)(2))   (providing 

consent to adoption is not required of a minor's father if the father was not married to the 
mother at or after the time of conception or the father has not adopted or "otherwise 
legitimated the minor under" Alaska law).  The Eberts' petition did not address whether 
ICWA applied to Bruce's parental rights, but ICWA excludes from the definition of 
"parent" "the unwed father where paternity has not been acknowledged or established." 
25 U.S.C.  1903(9); accordA.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 
261-62 (Alaska 1999). 

        4       AS 25.20.050(a)(3) allows unwed parents to legitimate a child by jointly 

signing a form acknowledging paternity.             For acknowledgments made before July 1, 
1997,   the   statute   requires  only   the   putative   parent's   signature   for   legitimation. AS 
25.20.050(a)(2). 

                                                  -4-                                             6539
 

----------------------- Page 5-----------------------

                Bruce    appeared    at  the  November     14   hearing.    The    Eberts'   attorney 

acknowledged on the record that Bruce was contesting the adoption and that Timothy is 

an Indian child under ICWA.   The master questioned Bruce about his income and child 
support obligations for his other children.5       The master appointed an attorney for Bruce 

based on the ICWA provision providing that an indigent parent of an Indian child has a 
right to court-appointed counsel in termination proceedings.6  The superior court denied 

Bruce's motion for custody without prejudice on November 19 but allowed Bruce to be 

a party to the case. 

                On December 6 Bruce moved for an order to compel the Eberts to make 

Timothy available for paternity testing.  Eight days later the Eberts requested dismissal 

of the adoption petition and termination of court-appointed counsel for Bruce.                Bruce 

filed a conditional non-opposition, asking that the Eberts give him physical custody of 

Timothy and reiterating his request that the court order paternity testing.  In their reply 

the Eberts argued the court could not grant Bruce custody because it lacked personal 

jurisdiction over Connie, and again referred  to the adoption as an "ICWA adoption." 

Bruce left a voice message with the Eberts in December asking them to bring Timothy 

to a December 28 status hearing so Bruce could take custody of him. 

                At the hearing the master recommended granting the Eberts' request to 

withdraw      their  adoption   petition.    Bruce's   appointed     counsel   asked   that  Bruce's 

requested   paternity   test  go   forward,   but   the   master   concluded   Bruce's   motion   for 

paternity testing was moot. The master mentioned that Bruce could "follow[]up" on his 

        5       Bruce has child support obligations on behalf of Kristin, born to Natalie C. 

in 2004, and Lulu, born to Teresa S. in 2007. 

        6       See 25 U.S.C.  1912(b); V.D. v. State, Dep't of Health & Soc. Servs., 991 

P.2d 214, 218 (Alaska 1999) (citing 25 U.S.C.  1912(b)) (recognizing ICWA requires 
court-appointed counsel in removal proceedings when court determines parent of Indian 
child is indigent). 

                                                 -5-                                            6539
 

----------------------- Page 6-----------------------

parental     rights   by   filing   a  custody    case.     Ultimately      adopting    the   master's 

recommendation months later, on June 4, 2008, the superior court dismissed the adoption 

petition, vacated all orders, and terminated the appointment of counsel for Bruce. 

                3.      Bruce's custody action at five months 

                Three days after the December 2007 status hearing Bruce, acting pro se, 

filed   the   custody   portion   of   this   consolidated   case. In   his   child   support   guidelines 

affidavit Bruce reported $11,750 in gross annual income, $9,000 in wages, $1,100 in 

unemployment compensation, and $1,650 for his Alaska Permanent Fund Dividend. 

                Bruce requested an exemption from payment of court fees on the basis of 

indigence, asserting he was unemployed and had only $10,750 in income for the prior 

12 months.  He calculated $2,100 in monthly expenses for food, rent, utilities, and other 

child support obligations, and noted he was behind in his support payments.                   He also 

reported he had no assets and debts of $180,000, including a $10,000 garnishment by the 

Municipality of Anchorage and a mortgage of $170,000. 

                On January 10, 2008, the court system attempted to mail Bruce a memo 

stating his fees exemption had been granted and reminding him to serve process on 

Connie and to file tax returns and paycheck stubs with the court to verify his income, but 

the memo was sent to the wrong address and it was re-sent on February 4.  On March 4 

Bruce   filed   three   W-2   forms   and   a   paycheck   stub   and   asserted   that   he   had   earned 

$5,101.70 in wages in 2007, less than half as much as he reported earlier in his child 

support guidelines affidavit.  Bruce served Connie by process server on April 14. 

                On May 5 Connie filed an answer to Bruce's custody suit, asserting there 

was a "slim chance" that Bruce was not Timothy's biological father.                   Bruce did not 

request a hearing date until July 16. 

                                                  -6-                                            6539
 

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                Bruce testified he called the Eberts in May 2008 to request visitation but 

was refused. Mr. Ebert testified the telephone call occurred in July and Bruce did not ask 

for visitation but instead told Mr. Ebert the court would take Timothy away from him. 

                On   July   19,   2008,   Timothy   turned   one   year   old.  At   no   time   during 

Timothy's first year did Bruce send Connie or the Eberts any money for Timothy or meet 

or communicate with Timothy. 

        B.      After Timothy's First Year - Second Adoption Petition 

                The Eberts filed a second petition for adoption on July 21, 2008, which is 

the adoption portion of this consolidated case.  This verified petition reiterated the first 

petition's   statements   regarding   ICWA   -   the   Eberts   again   stated   under   oath   that 

"[Timothy] is an 'Indian Child' " because of his eligibility for membership in the Tribe 

and that Connie would appear before the court to consent to the adoption "[b]ecause 

[Timothy] is an Indian Child."          In addition to contending that under ICWA Bruce's 

consent was not required for the adoption because he had not legitimated Timothy, the 

Eberts asserted that his consent was unnecessary for two new and independent reasons: 

that Bruce had no meaningful communication with Timothy for a period of one year 
without justifiable cause,7 and had provided no support for Timothy.8 

                On July 29 the Eberts moved to intervene in Bruce's custody case.                   On 

August 21 the trial court allowed the Eberts to intervene and sua sponte ordered paternity 

        7       See AS 25.23.050(a)(2)(A) (providing that "[c]onsent to adoption is not 

required of . . . a parent of a child in the custody of another, if the parent for a period of 
at least one year has failed significantly without justifiable cause . . . to communicate 
meaningfully with the child"). 

        8       See AS 25.23.050(a)(2)(B) (providing that "[c]onsent to adoption is not 

required of . . . a parent of a child in the custody of another, if the parent for a period of 
at least one year has failed significantly without justifiable cause . . . to provide for the 
care and support of the child as required by law or judicial decree"). 

                                                  -7-                                            6539
 

----------------------- Page 8-----------------------

testing.    On October 10 Bruce filed test results proving his paternity of Timothy to a 

probability of 99.99%. 

                On October 20 the Eberts moved to consolidate Bruce's custody case with 

their   adoption   case.    At   an   interim   custody   hearing   on   November   4   the   trial   court 

consolidated the two cases and appointed counsel for Bruce under ICWA based on his 
indigency.9 

                On December 3 Bruce moved for interim custody of or visitation with 

Timothy. On December 17 Bruce paid $50 to the Eberts' attorney for Timothy's support. 

After a December 18 and 19 custody hearing and over the Eberts' opposition, the trial 

court granted Bruce supervised visitation and arranged for a court system grant of up to 

$500 for visitation services.       The trial court also appointed a custody investigator and 

ordered Bruce to pay $50 per month in child support retroactive to August 2007. 

                In March 2009 the Eberts served the Tribe notice of the upcoming adoption 

petition   and   custody   trial.  In   the   notice,   the   Eberts   stated   "[i]t   appears   that   under 

applicable law the child . . . is an Indian Child under ICWA." 

                Bruce's visits with Timothy stopped after ten visits because Bruce did not 

have any money beyond the initial grant to pay for visitation services.               Bruce mailed a 

$150 child support check to the Eberts shortly before trial, and by the completion of trial 

Bruce had arranged for another visitation services grant. 

        C.      Trial - May 2009 

                The Eberts stated in their pretrial memorandum that they had "concede[d] 

in their adoption petition that [Timothy] is an Indian Child as a result of [Connie's] 

affiliation with the [Tribe]."  The Eberts also noted they had served a hearing notice on 

the Tribe's ICWA coordinator.   The Eberts nonetheless asserted that (1) Bruce had not 

        9       See note 6, above. 

                                                  -8-                                               6539 

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been entitled to ICWA protections until he established his paternity in October 2008, and 

(2) because from that time forward a heightened evidentiary standard applied for the 

potential termination of Bruce's parental rights, they would prove his parental unfitness 
beyond a reasonable doubt.10 

                 Trial   was   held   May   1,   13,   and   18,   2009. On   May   1   the   Eberts   filed 

proposed findings of fact stating "ICWA plays into this case as a result of [Connie's] 

membership in the [Tribe]."          Connie testified that she is a member of the Tribe.               The 

Eberts introduced a certificate from the United States Department of the Interior Bureau 

of Indian Affairs (BIA) stating that Timothy's bloodline is 25/64 Eskimo.  Bruce did not 

present any additional evidence on Timothy's status as an Indian child under ICWA. 

                 Bruce testified that after Timothy's birth he had gone to the hospital to try 

to get his name added to the birth certificate and that he sought paternity testing there and 

at the Bureau of Vital Statistics without success.  He testified that his appointed counsel 

from the initial adoption case pointed him to the Child Support Enforcement Division 

(CSED), that he filed paperwork with CSED in March 2008, but that he learned two 

months later CSED could not proceed without a custodian's consent or a court order. 

Bruce   testified   that   he   had   previously   had   another   child's   parentage   tested,   but   the 

process was different because the birth certificate listed him as the father and the child 

was in his physical custody. 

                 Bruce's mother testified that he asked her for money to consult a lawyer but 

that she had not been able to help him.           She testified Bruce asked at least three times: 

first shortly after Timothy's birth, again when Timothy was approximately six months 

        10       See 25 U.S.C.  1912(f) (providing parental rights to Indian child may not 

be   terminated   "in   the   absence   of   a  determination,   supported   by   evidence   beyond   a 
reasonable doubt, including testimony of qualified expert witnesses, that the continued 
custody of the child by the parent . . . is likely to result in serious emotional or physical 
damage to the child"). 

                                                    -9-                                              6539
 

----------------------- Page 10-----------------------

old, and at least one more time before Timothy was a year-and-a-half old. Bruce testified 

that he could not have gone to anyone else for a loan.  Bruce testified that he had $600 

monthly child support obligations for other children and that he was about $4,000 in 

arrears.    Bruce also testified he was evicted from his residence in October 2007 for 

nonpayment of rent. 

                On May 15, 2009, Bruce filed a memorandum on ICWA's remedial services 
clause11 in which he stated:   "There appears to be no dispute that [Timothy] is an Indian 

child . . . .   The pending adoption petition alleges that [Timothy] is an Indian child.  The 

adoption petitioners have submitted evidence that [Timothy] is an Indian child."                     The 

Eberts filed a closing brief on May 26 in which they stated that "ICWA had applicability 

to [Connie] and [the Tribe] from the time of [Timothy]'s birth," but that ICWA did not 

apply to Bruce until he established his paternity on October 10, 2008, by which time his 

right   to   withhold   consent   had   lapsed   for  failure   to   support   and   communicate   with 

Timothy. 

                The     trial  court  concluded      in  its  June  5,  2009    written   decision    that 

(1) "[Timothy] is not an 'Indian Child' within the meaning of [ICWA]," (2) Bruce's 

consent to the adoption was unnecessary because he "ha[d] not produced 'justifiable 

cause' for [his] failure to communicate with or support" Timothy for more than one year, 

and   (3)   there   was   "clear   and   convincing   evidence   that   [Bruce   was]   unfit   to   parent 

[Timothy]" and denying the adoption would be "detrimental and contrary" to Timothy's 

welfare.  The trial court's written decision did not expressly terminate Bruce's parental 

        11      Id.      1912(d)   (providing   that   parental   rights   to   Indian   child   cannot   be 

terminated   unless   "active   efforts   have   been   made   to   provide   remedial   services   and 
rehabilitative programs designed to prevent the breakup of the Indian family and that 
these efforts have proved unsuccessful"). 

                                                   -10-                                               6539 

----------------------- Page 11-----------------------

rights, but in later supplemental findings the court stated that "[p]ursuant to [the June 5, 

2009] findings of fact and conclusions of law" Bruce's parental rights "were terminated." 
                The   trial   court   later   accepted   Connie's   adoption   consent12  and   decreed 

Timothy's adoption by the Eberts. 

                Bruce appeals. 

III.    STANDARD OF REVIEW 

                Whether an unwed father is a parent entitled to ICWA's protections is a 
question of law we review de novo.13         "Whether [a party] made binding admissions is a 

question of law that we review de novo, applying our independent judgment to adopt the 
rule of law most persuasive in light of precedent, reason, and policy."14             We review for 

abuse of discretion the trial court's decision not to give the parties advance notice that 

it considered Timothy's status as an Indian child at issue and an opportunity to present 
additional   relevant  evidence.15     A   finding   that   a   parent's   failure   to   communicate   or 

        12      Connie gave consent on the condition that if the adoption decree is vacated, 

her relinquishment of her parental rights will also be undone. 

        13      See L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 

2000)   ("[A]   determination   of   whether   the   trial   court's   findings   comport   with   the 
requirements of ICWA involves a question of law and will be reviewed de novo." (citing 
E.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 959 P.2d 
766, 768 (Alaska 1998))); A.A., 982 P.2d at 259, 261-62 (reviewing de novo when unwed 
father first qualified as ICWA parent entitled to ICWA protections). 

        14      Pugliese v. Perdue, 988 P.2d 577, 580 (Alaska 1999) (citing Langdon v. 

Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987)). 

        15      See Frost v. Spencer, 218 P.3d 678, 682 (Alaska 2009) (concluding that 

whether trial court applied unfair procedures is reviewed for abuse of discretion). 

                                                 -11-                                            6539
 

----------------------- Page 12-----------------------

support a child was without justifiable cause is a finding of fact that we review for clear 

       16 
error. 

IV.	    DISCUSSION 

        A.	     ICWA Issues 

                1.	     It   was   an   abuse   of   discretion   to   conclude   Timothy   is   not   an 
                        Indian child without giving the parties notice that the trial court 
                        considered the issue in dispute. 

                ICWA applies to any proceeding that might result in the termination of a 
parent-child relationship involving an Indian  child.17            "ICWA applies to termination 

proceedings [even] when a party other than the state seeks the termination" of parental 
rights,18 and adoption without consent terminates parental rights.19 

                The     trial  court  concluded     that  there   was   "no   credible   evidence     that 

[Timothy] qualifies as an 'Indian child' " under ICWA.               But until the trial court issued 

        16      See In re J.M.F., 881 P.2d 1116, 1118-19 (Alaska 1994) (reviewing for 

clear error court's finding of fact that mother's failure to support was justifiable); In re 
B.S.L., 779 P.2d 1222, 1224 (Alaska 1989) (reviewing for clear error trial court's finding 
of fact that mother's failure to communicate was without justifiable cause). 

        17	     25 U.S.C.  1903(1)(ii), 1912(d), (f). 

        18      D.J. v. P.C., 36 P.3d 663, 673 (Alaska 2001); see also A.B.M. v. M.H., 651 

P.2d   1170,   1172   (Alaska   1982)   (rejecting   argument   that   "[ICWA]  appl[ies]  only   to 
custody   proceedings   involving   the   removal   of   Indian   children   from   their   homes   by 
nonfamily public and private agencies, not to disputes within the extended family"); B.J. 
JONES, MARK  TILDEN  & KELLY  GAINES-STONER, THE  INDIAN  CHILD  WELFARE ACT 
HANDBOOK 37 (2d ed. 2008) ("[I]t is clear from legislative history and case law that 
[ICWA] governs any proceeding in which thetermination of parental rights is a potential 
disposition." (footnotes omitted)). 

        19       In re K.L.J., 813 P.2d 276, 279 n.2 (Alaska 1991) ("While the provision 

in AS 25.23.050, eliminating the need for consent, is short of an actual adoption, it does 
terminate a parent's ability to protect his or her parental rights."). 

                                                  -12-	                                            6539
 

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its decision, whether Timothy is an Indian child was never in dispute.  The Eberts' first 

and second verified adoption petitions stated that Timothy "is an 'Indian Child' " based 

on his eligibility for membership in the Tribe. The Eberts' attorney acknowledged during 

the November 14, 2007 hearing on the initial adoption petition that Timothy is an Indian 

child under ICWA.   Bruce had counsel appointed in the first and second adoption cases 

based   on   ICWA.       The   Eberts   referred   to   the   initial   adoption   petition   as   an   "ICWA 

adoption" in their reply to Bruce's conditional non-opposition to their motion to dismiss. 

In   their   trial   memorandum   for   the   second   adoption   case   the   Eberts   wrote   that   they 

"concede[d] in their adoption petition that [Timothy] is an Indian Child as a result of 

[Connie's] affiliation with the [Tribe]."  Connie testified at trial that she is a member of 

the Tribe, and the Eberts introduced BIA certification that Timothy's bloodline is 25/64 

Eskimo. Finally, the Eberts stated in their closing argument and closing brief that ICWA 

applied as to Connie's parental rights. 

                 It is therefore understandable that in Bruce's trial memorandum regarding 

the application of ICWA's remedial services clause, he observed "[t]here appears to be 

no dispute that [Timothy] is an Indian child."  It is not clear why the trial court ignored 

the parties' position that the child is an Indian child and relied on the absence of evidence 

to decide that Timothy was not an Indian child without giving the parties prior notice and 

an opportunity to present additional relevant evidence on this issue. 

                 Bruce argues it was clear error to conclude that Timothy is not an Indian 

child within the meaning of ICWA, noting that "the petitioners repeatedly conceded that 

[Timothy] was an Indian Child" and "was eligible for membership in an Alaska Native 

Village" in their second adoption petition and pretrial memorandum.  The Eberts stand 

by the trial court's conclusion, characterize the evidence concerning the Tribe as "scant," 

and now explain they brought the petition under ICWA only because "it[']s better to be 

safe than sorry." 

                                                   -13-                                              6539
 

----------------------- Page 14-----------------------

                Bruce's argument raises two issues.           Were the Eberts' concessions that 
Timothy is an Indian child binding judicial admissions of fact?20               If not, given that the 

parties tried the case on the understanding that Timothy is an Indian child, should the 

trial   court   have   given   the   parties   notice   that   it   would   rely   on   a   proof   deficiency   to 

conclude otherwise? 

                The first issue raises difficult questions about the nature of the elements 

underlying a conclusion that a child is an Indian child and what may be the subject of a 

judicial admission.      25 U.S.C.  1903(4) defines an "Indian child" as "any unmarried 

person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is 

eligible for membership in an Indian tribe and is the biological child of a member of an 

Indian tribe."   Some of the elements contained in that definition are undeniably factual: 

whether the person is unmarried, whether the person is under age 18, and whether the 

person is a parent's biological child.         As such, they generally would be susceptible to 
judicial admission.21 

                Whether a child or either biological parent is a member of a tribe, and 

whether a child is eligible for membership in a tribe, are more difficult questions to 

categorize.     A statement regarding membership or eligibility for membership might be 

        20      A judicial admission "dispens[es] with proof of a fact claimed to be true and 

is used as a substitute for legal evidence at the trial."  Hayes v. Xerox Corp., 718 P.2d 
929, 932 (Alaska 1986) (quoting Kuzmic v. Kreutzmann, 301 N.W.2d 266, 268 (Wis. 
App. 1980)); accord BLACK'S LAW DICTIONARY 54 (9th ed. 2009) (defining "judicial 
admission" as "[a] formal waiver of proof that relieves an opposing party from having 
to prove the admitted fact and bars the party who made the admission from disputing it"); 
9 JOHN H. WIGMORE, EVIDENCE  2588, at 821 (Chadbourn rev. ed. 1981) (noting result 
of judicial admission is "one party need offer no evidence to prove it and the other is not 
allowed to disprove it"). 

        21      See Pugliese, 988 P.2d at 580 (" '[A] judicial admission, to be binding, must 

be one of fact and not a conclusion of law or an expression of opinion.' " (quotingHayes, 
718 P.2d at 931)). 

                                                  -14-                                            6539
 

----------------------- Page 15-----------------------

factual if it refers to an actual determination by the tribe, and thus may be susceptible to 
judicial  admission.22      But in the absence of an actual determination by the tribe (or 

perhaps by the BIA) about membership or eligibility for membership, any generalized 

statement about membership or eligibility for membership might be a statement of mixed 

fact and law not susceptible to judicial admission: 

                Absent      a   determination      by   the   tribe   as  to   a  child's 
                membership or eligibility for membership, the burden falls on 
                the state court to make an independent determination with the 
                 evidence it has before it. . . .  Such a review may require the 
                 acquisition of the tribe's organic documents, including the 
                tribal constitution and ordinances governing membership.[23] 

        22      See COHEN'SHANDBOOK OF FEDERAL INDIAN LAW  11.02[2], at 827 (Nell 

Jessup Newton ed., 2005) ("State court decisions have generally adhered to the basic 
federal rule that the tribe decides who is a member or eligible for membership.  If a tribe 
determines that a person is a member or citizen of the tribe, the state courts cannot 
disturb that determination." (footnotes omitted)). 

                 The BIA Guidelines for State Courts provide that a "determination by a 
tribe that a child is or is not a member of . . . or . . . eligible for membership in that tribe, 
or that the biological parent is or is not a member of that tribe is conclusive."  Guidelines 
for   State   Courts;   Indian   Child   Custody  Proceedings,   44   Fed.   Reg.   67,584,   67,586, 
Guideline B.1(b)(i) (Nov. 26, 1979) (hereinafter BIA Guidelines); accord JONES ET AL., 
note 18, above, at 34 ("The guidelines for state court also state that a tribal determination 
of membership is conclusive."). The BIA Guidelines "have important but not controlling 
significance" because, although not promulgated as regulations, they represent the BIA's 
interpretation of ICWA.  John v. Baker, 982 P.2d 738, 747 n.33 (Alaska 1999) (citing 
Batterton v. Francis, 432 U.S. 416, 424-25 (1977)).  The BIA Guidelines also provide 
that   if   a   tribe   fails   to   make   a   determination,   then   the   BIA   can   make   a   conclusive 
determination.       BIA   Guidelines,   44   Fed.   Reg.   at   67,586,   Guideline   B.1(b)(ii).      A 
statement regarding a BIA determination of membership or eligibility for membership 
might also be factual and susceptible to judicial admission. 

        23       JONES ET AL., note 18, above, at 35 (footnotes omitted);see also In re Baby 

Boy Doe, 849 P.2d 925, 930 (Idaho 1993) (stating it is question of law "[w]hether the 
trial   court   correctly    applied    ICWA"      by   determining     child   was    not  eligible   for 
                                                                                          (continued...) 

                                                   -15-                                               6539 

----------------------- Page 16-----------------------

               Whether Indian child status might be susceptible to judicial admission arose 
in our 1982 decision A.B.M. v. M.H.24       In that case the biological mother arranged "to 

give her child up for adoption to her sister and brother-in-law."25  Because the adoptive 

parents indicated in an adoption questionnaire that the child was an Indian child, the 

superior court treated the adoption as an ICWA adoption and provided the mother with 
relevant ICWA protections.26     A decree of adoption was entered.27     Two months later the 

State became aware of the adoption and discovered that it had not been notified as 

required by state statute and had been deprived of its opportunity to conduct appropriate 
home studies.28    On the State's motion the superior court "vacated the adoption decree 

and ordered the [State] to conduct [the] home studies."29         The biological mother then 

changed her mind about the adoption and petitioned for the child's return to her under 
ICWA.30    During later custody proceedings the biological mother moved to summarily 

       23      (...continued) 

membership because tribe's enrollment director stated he could not determine child's 
eligibility with certainty in absence of birth certificate or paternity affidavit); cf. In re 
C.D., 751 N.W.2d 236, 241-42 (N.D. 2008) (referring to question of child's Indian child 
status as "legal determination" after tribe declared child was eligible for membership but 
did not declare biological mother was member). 

       24      651 P.2d 1170 (Alaska 1982). 

       25      Id. at 1171. 

       26      Id. 

       27      Id. 

       28      Id. at 1171-72. 

       29      Id. at 1172. 

       30      Id. Under ICWA, an Indian child's biological parent may petition for return 

                                                                                  (continued...) 

                                              -16-                                           6539 

----------------------- Page 17-----------------------

establish that ICWA controlled the outcome of the custody dispute.31  The superior court 

denied the motion, not on the ground that the child was not an Indian child, but on the 

ground that ICWA does not apply to private, extended family adoptions; the court then 

determined, under state law, that the biological mother would not be allowed to withdraw 
her consent to the adoption.32 

                 The primary issue in the biological mother's appeal was whether ICWA 

applies to private adoptions of Indian children within the extended family, as opposed 

to the removal of Indian children from their homes by non-family public and private 
agencies.33    But during the appeal the adoptive parents also sought affirmance on an 

alternative ground, asserting for the first time that the child was not an Indian child 

because there was "nothing in the record to indicate that [the child] is a member of or 

eligible for membership in an Indian tribe" or that "[the biological] mother is a member 
of   an   Indian   tribe."34 On   this   issue,   we   held   that   in   light   of   the   adoptive   parents' 

concessions in the adoption questionnaire that the child was an Indian child affiliated 

with   a   specific   tribe   and   that   ICWA   applied,   "they   became   bound   by   their   judicial 
admissions in the superior court."35 

        30       (...continued)
 

of custody when a final decree of adoption is vacated or set aside.  25 U.S.C  1916(a).
 

        31      A.B.M., 651 P.2d at 1172. 

        32      Id. 

        33      Id.    We held that ICWA does apply to private adoptions.  Id. at 1172-74. 

See note 18, above, and accompanying text. 

        34      Id. at 1172, 1174. 

        35      Id. at 1174. 

                                                   -17-                                              6539
 

----------------------- Page 18-----------------------

                At   first   blush A.B.M.    seems   to   mandate   a   reversal   of   the   trial   court's 

determination that Timothy is not an Indian child because the Eberts' concessions to the 

contrary throughout the proceedings should constitute judicial admissions. But given our 

subsequent   case   law   defining   the   limitation   of  judicial   admissions   to   purely   factual 
matters36 and our discussion here regarding the nature of membership or eligibility for 

membership in a tribe, we clarify that the holding of A.B.M. is limited to precluding the 

adoptive parents from arguing a new position on appeal contrary to a position they had 

taken in the superior court on an issue not raised to or decided by that court.  In this light 

A.B.M. should be seen more as applying judicial estoppel or waiver rather than judicial 
admission.37 

                 Here there was no dispute between the parties regarding Timothy's status 

as an Indian child.   But although there was evidence to establish that Timothy was under 

the age of 18 and unmarried, there was no evidence nor specific concession by the Eberts 

that the Tribe had determined Timothy was a member or eligible for membership in the 

Tribe.   Thus it does not appear that there was a binding judicial admission of Timothy's 

Indian child status in this case. This then leads us to the issue of the fairness of trial court 

procedures with respect to determining that Timothy was not an Indian child. 

        36      Pugliese, 988 P.2d at 580; Hayes, 718 P.2d at 931. 

        37       Judicial estoppel bars "a party from contradicting previous declarations 

made during the same or an earlier proceeding if the change in position would adversely 
affect the proceeding or constitute a fraud on the court." BLACK'SLAW DICTIONARY 631 
(9th ed. 2009). 

                 In  Ted W. v. State, Dep't of Health & Soc. Servs., Office of Children's 
Servs.,   we   did   not   reach   the   merits   of   an   argument   challenging     a   father's   tribal 
membership because it was not questioned below and plain error was not present.                        204 
P.3d 333, 337-38 (Alaska 2009).  Although we cited A.B.M. in our alternative holding, 
our decision was based on a determination of waiver.  Id. 

                                                   -18-                                             6539
 

----------------------- Page 19-----------------------

                Had it been clear to the parties that Timothy's Indian child status was at 

issue, then it would have been Bruce's burden to produce the necessary evidence to 
establish that Timothy was a member of or eligible for membership in the Tribe.38  Other 

courts have held that if the requisite party does not come forward with evidence that 
ICWA applies, it is not error to ignore ICWA's mandates.39               But given the facts of this 

case,   where   the   parties   did   not   dispute   Timothy's   status   as   an   Indian   child,   it   was 

fundamentally unfair to find Timothy was not an Indian child without first informing the 

parties that his status was at issue and allowing for presentation of relevant evidence 

regarding tribal membership issues. 

        38      See In re Baby Boy Doe, 849 P.2d at 931 (stating "[t]he party asserting the 

applicability of ICWA has the burden of producing the necessary evidence for the trial 
court" to determine whether the child is eligible for tribal membership, where the "state 
court does not have a conclusive determination from the tribe or the BIA");In re M.N.W., 
577 N.W.2d 874, 876 (Iowa App. 1988) ("Other states have established it is incumbent 
upon the party asserting applicability of ICWA to prove the child meets the criteria under 
ICWA."); In re C.P., 641 S.E.2d 13, 16 (N.C. App. 2007) ("The burden is on the party 
invoking [ICWA] to show that its provisions are applicable to the case at issue, through 
documentation   or   perhaps   testimony   from   a   tribe   representative."); In   re   A.L.,   623 
N.W.2d 418, 420 (N.D. 2001) ("The party asserting the applicability of the I.C.W.A. 
must produce evidence for the court to decide whether a child is an 'Indian child.' "); 
Hofmann v. Anderson, 31 P.3d 510, 512 (Or. App. 2001) ("As the party asserting the 
applicability of ICWA, father had the burden to produce sufficient evidence to support 
a determination that child was an Indian child."); People ex rel. D.T., 667 N.W.2d 694, 
699 (S.D. 2003) ("[I]t is incumbent upon the party asserting applicability of ICWA to 
prove the child meets the criteria under ICWA." (citation omitted)); CONFERENCE OF 
WESTERNATTORNEYS GENERAL,AMERICAN INDIAN LAW DESKBOOK 580 (4th ed. 2008) 
("The proponent of ICWA coverage bears the burden of proving 'Indian child' status . 
. . ." (footnote omitted)). 

        39      E.g., In re C.K., 221 S.W.3d 467, 470 (Mo. App. 2007); In re C.P., 641 

S.E.2d at 16-17; In re A.L., 623 N.W.2d at 422; Hofmann, 31 P.3d at 511-12; People ex 
rel. D.T., 667 N.W.2d at 699. 

                                                  -19-                                            6539
 

----------------------- Page 20-----------------------

                In Frost   v.   Spencer   we   held   that   "[b]ecause   basic   fairness   requires   an 

opportunity to present relevant evidence, applying an unanticipated body of law could 

be an abuse of discretion if doing so were to make different outcome-determinative facts 
relevant."40   In Frost we determined a party "made a plausible showing that if she had 

known before the trial that the case was to be decided under [different] principles, her 
evidentiary   presentation   would   have   been   different."41        We   held   it   was   an   abuse   of 

discretion to deny her request for a supplemental evidentiary hearing after the trial court 

announced post-trial that it would apply a body of law other than that under which the 
parties had agreed to resolve the case.42 

                The   reasoning   of Frost   applies   here.       Because   the   parties   consistently 

treated Timothy as an Indian child throughout the litigation, we vacate the trial court's 

determination that he is not, and remand for further proceedings on the sole, unproven 

factor underlying Timothy's status as an Indian child:  whether Timothy is a member or 

is eligible for membership in the Tribe. 

                2.	      If  Timothy      is  an   Indian    child,   Bruce's    failure    to  establish 
                         paternity     before    the   completion      of   the  one-year      period    of 
                         nonsupport        and   noncommunication           did   not   render     ICWA 
                          1912(d) and (f) inapplicable. 

                Bruce argues that the trial court "failed to make required findings and used 

an incorrect quantum of proof analysis" for the termination of his parental rights due to 

its failure to apply ICWA.         "[T]he termination of parental rights subject to  1912 of 

        40      218 P.3d at 682. 

        41      Id. at 684. 

        42      Id. at 681-82, 684;  cf. Heustess v. Kelley-Heustess, 158 P.3d 827, 835 

(Alaska 2007) (holding it violated party's right to due process to grant claim first raised 
in opponent's rebuttal testimony without giving party opportunity to present relevant 
defenses). 

                                                   -20-	                                            6539
 

----------------------- Page 21-----------------------

ICWA involves higher evidentiary standards and different protections of the rights of the 
parent subject to termination than do termination proceedings strictly under state law."43 

Section 1912(d) requires that before parentalrights to an Indian child may be terminated, 

there must be a showing of active but unsuccessful efforts "to provide remedial services 
and rehabilitative programs designed to prevent the breakup of the Indian family."44 

Section 1912(f) requires that for a court to terminate parental rights to an Indian child, 

it must determine based on "evidence beyond a reasonable doubt, including testimony 

of qualified expert witnesses, that the continued custody of the child by the parent . . . is 
likely to result in serious emotional or physical damage to the child."45 

                The    Eberts   argue    that  "[Bruce]    never   became     entitled  to  ICWA's 

protections   due   to   his   delay   in   establishing   paternity."  ICWA   excludes   from   the 

definition of "parent" an "unwed father where paternity has not been acknowledged or 
established."46   The Eberts accurately note that a father's liberty interest in his parental 

rights is less when he fails to legitimate his child.         But the House Report on ICWA 

"states that the qualification of an unwed father's right 'is not meant to conflict with the 
decision of the Supreme Court in Stanley v. Illinois, 405 U.S. 645 [(1972)].' "47  Stanley 

and related case law have been interpreted to hold that an unwed father who "manifests 

        43     D.J., 36 P.3d at 669. 

        44      25 U.S.C.  1912(d). 

        45     Id.  1912(f). 

        46     Id.  1903(9); see, e.g., A.A., 982 P.2d at 258, 262 (stating father who 

denied paternity was not entitled to active remedial efforts under ICWA until blood test 
established his paternity because he did not acknowledge paternity before test). 

        47     In re Child of Indian Heritage, 543 A.2d 925, 934 (N.J. 1988) (quoting H.R. 

REP. NO.   1386   at   21   (1978), reprinted   in  1978   U.S.C.C.A.N.   7530,   7543); accord 
Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 172 (Tex. App. 1995). 

                                                -21-                                            6539
 

----------------------- Page 22-----------------------

an interest in developing a relationship with [his] child" cannot constitutionally be denied 

parental status based solely on the failure to comply with the technical requirements for 
establishing paternity.48 

                Courts   have   looked   to   state  law   developed   in   response   to  Stanley   to 
determine whether paternity has been acknowledged or established under ICWA.49                         A 

California appellate court has cited case law on acknowledging and establishing paternity 

for ICWA and concluded that courts have required that the unwed father "take some 

official action, such as filing a voluntary declaration of paternity, establishing paternity 

in   legal   proceedings,   or   petitioning   to   have   his   name   placed   on   the   child's   birth 
certificate."50    For   example,   blood   testing   or   "voluntarily   signing   a   declaration   of 

paternity at the time of the child's birth, for filing with the birth certificate" are ways to 
acknowledge   or   establish   ICWA   paternity   in  California.51         Under   New   Jersey   law, 

"fil[ing] a written acknowledgement of paternity . . . or initiat[ing] a lawsuit claiming 

        48      In re Child of Indian Heritage, 543 A.2d at 934 (citing Stanley, 405 U.S. 

645,Lehr v. Robertson, 463 U.S. 248 (1983), Caban v. Mohammed, 441 U.S. 380 (1979), 
and  Quilloin   v.   Walcott,   434   U.S.   246   (1978)); accord  Yavapai-Apache   Tribe,   906 
S.W.2d at 172. 

        49      See In re Child of Indian Heritage, 543 A.2d at 935; accord In re Daniel 

M., 1 Cal. Rptr. 3d 897, 900 (Cal. App. 2003); Yavapai-Apache Tribe, 906 S.W.2d at 
172-73; cf. Jared P. v. Glade T., 209 P.3d 157, 161 (Ariz. App. 2009) ("[W]e look to 
state law to determine whether paternity hasbeen acknowledged or established.").  Some 
state courts have also stated that an unwed father may acknowledge or establish paternity 
pursuant to tribal law.  In re Child of Indian Heritage, 543 A.2d at 935; In re Baby Boy 
D., 742 P.2d 1059, 1064 (Okla. 1985), overruled on other grounds by In re Baby Boy L., 
103 P.3d 1099, 1101 (Okla. 2004). 

        50      In re Daniel M., 1 Cal. Rptr. 3d at 900 (citing In re Baby Girl B., 67 P.3d 

359, 366 (Okla. Civ. App. 2003)); In re Child of Indian Heritage, 543 A.2d at 936; 
Yavapai-Apache Tribe, 906 S.W.2d at 172-73). 

        51      Id. (citing CAL. FAM. CODE,  7551, 7571(a)). 

                                                  -22-                                             6539
 

----------------------- Page 23-----------------------

paternity or any other parental rights prior to the final judgment of adoption" would make 
an   unwed   father   a   parent   for   ICWA  purposes.52       South   Dakota   law   indicates   that 

"petitioning to enter his name on the child's birth certificate" would make someone an 
ICWA parent.53       "[U]nder Texas law, a man [who] execute[s] a voluntary statement of 

paternity and file[s] a petition for a decree adjudicating him as a parent of the child" has 
acknowledged his paternity within the contemplation of ICWA.54 

                The Arizona Court of Appeals recently concluded that even though an 

unwed father had not complied with a state statute giving him 30 days after receiving 

notice of an adoption petition to serve the mother with notice that he had initiated a 
paternity proceeding, he had acknowledged paternity for ICWA purposes.55   The court 

found   the   father   had   made   reasonable   efforts   including:    (1)   challenging   an   earlier 

petition to terminate his parental rights; (2) filing a paternity petition; (3) writing the 
court a letter acknowledging paternity; and (4) complying with a genetic testing order.56 

                These cases demonstrate that to qualify as an ICWA parent an unwed father 

does not need to comply perfectly with state laws for establishing paternity, so long as 

he has made reasonable efforts to acknowledge paternity.  Here, Bruce made reasonable 

efforts to acknowledge paternity in the year before the Eberts filed their second adoption 

petition, even though he failed to formally legitimate Timothy under state law within that 

        52      In re Child of Indian Heritage, 543 A.2d at 936 (citing N.J. STAT. ANN.  

9:17-43a(6), -43d). 

        53      Id. (citing S.D. CODIFIED LAWS ANN.  25-6-1.1(2), 34-25-13.2). 

        54      Yavapai-Apache Tribe, 906 S.W.2d at 173 (citing TEX. FAM. CODE ANN. 

 13.21(a)). 

        55       Jared P., 209 P.3d at 160, 162.
 

        56      Id.
 

                                                  -23-                                             6539
 

----------------------- Page 24-----------------------

year.   Bruce filed an acknowledgment of paternity and an affidavit of paternity with the 

superior    court   in  the   first  adoption   proceeding.     The    master    found   Bruce    had 

acknowledged paternity for purposes of contesting that petition.  Bruce also moved for 

custody and later for paternity testing.  Finally, Bruce filed a separate suit for custody of 

Timothy. 

                We    hold   that  even   though    Bruce    did  not   comply    with   the  Alaska 
legitimation     statute   requiring    signatures    from    both   parents57   or   complete     his 

legitimization efforts in court within the first year of Timothy's life, he sufficiently 

acknowledged paternity of Timothy to invoke the application of ICWA.                  If Timothy is 

an Indian child, Bruce is a parent under ICWA and is entitled to the protections under  
1912(d) and (f) and other applicable provisions.58 

        B.      State Law Issues 
                Although     a  parent's   consent   to  adoption    is  generally   required,59   AS 

25.23.050 provides that adoption consent is not required of "a parent of a child in the 

custody of another, if the parent for a period of at least one year has failed significantly 

without justifiable cause . . . to communicate meaningfully with the child, or . . . provide 
for the care and support of the child as required by law or judicial decree."60   We have 

        57      AS 25.20.050(a)(3). 

        58      See notes 10 and 11, above. 

        59     In re A.J.N., 525 P.2d 520, 521 (Alaska 1974); see also D.L.J., 635 P.2d 

834,   837   (Alaska   1981)   (quoting  In   re   K.M.M.,   611   P.2d   84,   87   (Alaska   1980)) 
("[P]arents should not be deprived of the fundamental rights and duties inherent in the 
parent-child relationship except for 'grave and weighty reasons.' "). 

        60      AS 25.23.050(a)(2). 

                                                -24-                                            6539
 

----------------------- Page 25-----------------------

stated   that   "courts   should   'strictly   construe   AS   25.23.050   in   favor   of   the   natural 
parent.' "61 

                The burden falls on the adoptive parents, in this case the Eberts, to prove 

by clear and convincing evidence that communication or support did not occur for that 
one-year period.62     Once this showing is made, the burden shifts to the biological parent 

to produce evidence of justifiable cause for the failure in communication or support.63 

If the biological parent meets the burden of production, the adoptive parents then must 

show by clear and convincing evidence that the failure in communication or support was 
without justifiable cause.64 

                Bruce admitted at trial that for the first year of Timothy's life Bruce did not 

provide any support or have any contact with Timothy.  The burden therefore shifted to 

Bruce to produce evidence of a justifiable cause for nonsupport and noncommunication. 

The trial court found Bruce "ha[d] not produced 'justifiable cause,' " and thus the burden 

of persuasion did not shift back to the Eberts at trial. 

                1.      Alleged unjustified failure to communicate meaningfully 

                Bruce contends that because Timothy was too young to appreciate cards, 

letters, or telephone calls, his only option "was to work through the court."                  The trial 

court determined Bruce's "failure to establish paternity d[id] not amount to 'justifiable 

cause' for the failure to communicate with . . . [Timothy]" and that Bruce "did very little 

to move his custody case forward." 

        61      In re A.F.M., 960 P.2d 602, 604 (Alaska 1998) (quoting S.M.K. v. R.G.G., 

702 P.2d 620, 623 (Alaska 1984)). 

        62      See In re J.M.F., 881 P.2d at 1118; see also D.L.J., 635 P.2d at 838. 

        63      In re J.M.F., 881 P.2d at 1118. 

        64      See id. (citing D.L.J., 635 P.2d at 838). 

                                                  -25-                                             6539
 

----------------------- Page 26-----------------------

                In D.A. v. D.R.L.65 and S.M.K. v. R.G.G.,66 we noted that "we have relaxed" 

the meaningful communication requirement "in circumstances where the child is too 
young to read or communicate over the telephone."67   The Eberts argue that a child's 

youth should serve to relax the communication requirement only when the adoptive 

custodian acts improperly, such as "wrongfully den[ying] access to [the] child" as in 

S.M.K. or "potentially creating a hostile environment for the biological parent" as in 
D.A.68  We noted in S.M.K. that the father's family "wrongfully den[ied]" the biological 

mother physical access to her child,69 but our conclusion that the child was too young for 

written or telephonic communication was not dependent on that fact.70   Nor did D.A. 

involve "arguable 'wrongs' " as the Eberts suggest:             there was no determination that it 

was "wrong" for the child's mother and the prospective step-father to take the child out 

of Alaska for three months on vacation or for them to be present together when the 
biological   father   visited   the  child.71 The   Eberts   are   mistaken   -   we   do   not   require 

wrongful conduct by the adoptive custodians to relax the meaningful communication 

standard if a child is too young to read or use the telephone. 

        65      727 P.2d 768 (Alaska 1986). 

        66      702 P.2d 620. 

        67      D.A.,   727   P.2d   at   770;  accord  S.M.K.,   702   P.2d   at   624-25   (agreeing 

biological mother was reasonable in believing letters and telephone calls would not result 
in   meaningful     communication        with  three-year-old     son   from   whom     she   had   been 
separated for two years). 

        68       (Emphasis omitted.) 

        69      702 P.2d at 625. 

        70      See id. 

        71      727 P.2d at 769-70. 

                                                  -26-                                            6539
 

----------------------- Page 27-----------------------

                The Eberts also question the "reasoning" of D.A. and S.M.K., arguing that 

AS 25.23.050(a)(2) does not make an exception based on the child's age and should 

instead be interpreted to require the parent to have custody within the first year of the 

child's life.   But the plain language of the statute does not support that argument; it 
requires    the   parent   to  "communicate       meaningfully."72      The     "relax[ation]    .  .  .  of 

meaningful   communication"73           merely   recognizes   that   it   is   not   unreasonable   for   a 

noncustodial parent to conclude that the benefit of written or telephonic communication 
is limited when a child is too young to read or use the telephone.74 

                Regardless   of   others'   efforts   to   interfere,   a   parent   has   a   duty   to   make 
objectively reasonable efforts to communicate with his child.75   Seeking the assistance 

of a court can indicate a parent's interest in preserving his relationship with his child.76 

When Timothy was just two months old, Bruce commenced pro se legal proceedings by 

moving to be a party in the Eberts' initial adoption case and to be granted custody.  On 

that day he also attempted, though unsuccessfully, to acknowledge paternity of Timothy. 

When Timothy was almost four months old, Bruce represented himself at a hearing on 

the initial adoption petition to request custody of Timothy. When Timothy was four-and- 

one-half months old, Bruce moved for paternity testing with the assistance of court- 

appointed counsel.   He conditioned his non-opposition to the Eberts' dismissal request 

on paternity testing and physical custody, albeit unsuccessfully.                Three days after the 

master recommended dismissing the initial adoption petition, Bruce filed a pro se custody 

        72      AS 25.23.050(a)(2)(A). 

        73      D.A., 727 P.2d at 770. 

        74      S.M.K., 702 P.2d at 624. 

        75      See In re B.S.L., 779 P.2d at 1224-26. 

        76      S.M.K., 702 P.2d at 624. 

                                                  -27-                                             6539
 

----------------------- Page 28-----------------------

suit and request for exemption from payment of fees; at that time Timothy was not yet 

six months old.   And on the eve of Timothy's first birthday, Bruce requested a hearing 

date in his custody suit.    Considering that Bruce had the assistance of court-appointed 

counsel for only a little over one month of this period, he clearly made reasonable efforts 

to obtain custody and to develop a relationship with his infant son. 

               On the facts of this case, we hold both that (1) Bruce produced evidence of 

justifiable cause for his failure to communicate with Timothy, and (2) the Eberts did not 

meet their burden of proving by clear and convincing evidence that Bruce unjustifiably 

failed to communicate meaningfully with Timothy for one year.          We therefore reverse 

the trial court's contrary finding on this point. 

               2.     Alleged unjustified failure to provide support 

               Alaska    Statute  25.23.050(a)(2)   specifically  mentions    indigency   as  a 
justifiable cause for failure to communicate or support.77    At trial Bruce cited "[l]ack of 

income" as his justification for not paying child support. The trial court concluded Bruce 

"ha[d] not produced 'justifiable cause' for the failure to . . . support the child," but did 

not expressly analyze whether Bruce's financial situation qualified as justifiable cause. 

               Record evidence suggests Bruce might have been unable to provide support 

for Timothy due to indigence.  Bruce's mother testified she had been unable to loan him 

money for a lawyer when he asked shortly after Timothy's birth and again when the child 

was six months old.     Bruce testified that he was evicted for nonpayment of rent when 

Timothy was approximately three months old.          When Timothy was four months old, 

counsel was appointed for Bruce in the initial adoption case based on indigence.  In his 

child support guidelines affidavit and request for exemption from paying fees in his 

custody action, Bruce reported less than $12,000 in annual income.            At trial, Bruce 

       77      See also In re K.L.J., 813 P.2d at 281 (holding it was error for superior court 

to find indigency was not legitimate justification under AS 25.23.050(a)). 

                                             -28-                                         6539 

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testified that his child support obligations were about $4,000 in arrears.  Bruce produced 

W-2 forms and a paycheck stub showing earnings of slightly more than $5,000 in 2007. 

Finally, Bruce testified he was unemployed between September 2007 and March 2008. 

In   light   of   this   record   evidence,   it   was   error   to   find   Bruce   had   not   produced   some 

evidence of justifiable cause for his failure to provide support for Timothy for a one-year 

period. 

                Because Bruce produced some evidence of justifiable cause, the burden 

should then have shifted to the Eberts to "show by clear and convincing evidence that the 
natural parent's failure to support was without justifiable cause."78  We therefore reverse 

the trial court's contrary finding and remand for further proceedings on this issue. 

V.      CONCLUSION 

                We VACATE the termination of Bruce's parental rights and the adoption 

decree and REMAND for further proceedings consistent with this opinion; we leave 

issues of interim custody and visitation to be decided by the superior court. 

        78      See In re J.M.F., 881 P.2d at 1118 (citing D.L.J., 635 P.2d at 838). 

                                                 -29-                                              6539 
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