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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Native Village of Tununak v. State, Dept. of Health & Social Services, Office of Children's Services (9/12/2014) sp-6954

Native Village of Tununak v. State, Dept. of Health & Social Services, Office of Children's Services (9/12/2014) sp-6954

         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  



NATIVE VILLAGE OF TUNUNAK,   )  

                                                   )        Supreme Court No. S-14670  

                 Appellant,                        )  

                                                   )        Superior Court No. 3AN-11-02236 PR  

         v.                                        )  

                                                   )        O P I N I O N  

STATE OF ALASKA,                                   )  

DEPARTMENT OF HEALTH &                             )        No. 6954 - September 12, 2014  

SOCIAL SERVICES, OFFICE OF                         )  

CHILDREN'S SERVICES, and                           )  

H.S. and K.S.,                                     )  

                                                   )  

                 Appellees.                        )  

                                                   )  



                 Appeal from the Superior Court of the State of Alaska, Third  

                                                               

                 Judicial District, Anchorage, Frank A. Pfiffner, Judge.   



                 Appearances:    James  J.  Davis,  Jr.  and  Sydney  Tarzwell,  

                 Alaska      Legal     Services      Corporation,       Anchorage,        for  

                 Appellant.      Jacqueline   G.   Schafer,   Assistant   Attorney  

                 General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                 General, Juneau, for Appellee State of Alaska.  Kenneth C.  

                 Kirk,  Anchorage,  for  Appellees  H.S.  and  K.S.    Notice  of  

                 nonparticipation  filed  by  Kristen  C.  Stohler,  Stohler  Law,  

                 P.C.,  Palmer,  on  behalf  of  Kathleen  Wilson,  Anchorage,  

                 Guardian   Ad   Litem.      Heather   Kendall-Miller,   Erin   C.  

                 Dougherty,  and  Matthew  N.  Newman,  Native  American  

                                        

                 Rights Fund, Anchorage, for Amicus Curiae Native Village  

                                                                   

                 of Kotzebue.  



                 Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                              

                 Bolger, Justices.  



                 STOWERS, Justice.  

                 WINFREE, Justice, dissenting.  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                    This is the second appeal in a case that began in July 2008 when the Alaska  



                                                                                                                          1 

                                                                                                                            from  

Office of Children's Services (OCS) assumed custody of four-month-old Dawn 



                  2                                                                                     3  

her parents.   Dawn was found to be a child in need of aid (CINA).   Dawn's parents  



were Native Alaskans and thus the protections and requirements of the Indian Child  

                                                  



                                4                                      5 

Welfare Act (ICWA)  applied to the CINA case.   One of ICWA's provisions establishes  

                                                                                      



preferences for foster care and adoptive placement of an Indian child with a member of  

                                                                                  



the child's extended family, with other members of the child's tribe, or with other Indian  

                                                                                                       



             6  

families.   Native Village of Tununak (the Tribe) intervened in Dawn's CINA case and  

                                                                                                             



submitted a list of potential placement options for Dawn, including Dawn's maternal  

                                                                  7  Throughout much of the case, the parents  

grandmother, Elise, who lives in the village.  

                                                                      



and Tribe agreed there was good cause not to place Dawn with an ICWA preferred  

                                                               



placement, and Dawn was eventually placed with the Smiths, non-Native foster parents  

                                                                     

who live in Anchorage.8  



          1         We use pseudonyms to protect the privacy of the parties involved.  



          2         Native Vill. of Tununak v. State, Dep't of Health & Social Servs., Office of     



Children's Servs., 303 P.3d 431, 433 (Alaska 2013) (Tununak I).  



          3         Id .  



          4         25 U.S.C.  1901-1963 (2012).  



          5         Tununak I, 303 P.3d at 433.  



          6         25 U.S.C.  1915(a).   



          7         Tununak I, 303 P.3d at 433.  



          8         Id . at 434-35.  



                                                               -2-                                                         6954
  


----------------------- Page 3-----------------------

                   The  superior   court  terminated  Dawn's  parents'  parental  rights  at  a  



                                                                                      9  

September 2011 trial, making Dawn eligible for adoption.   The Tribe asserted that,  



                                                                                       

given the termination of parental rights, there was no longer good cause to deviate from  



ICWA's  placement  preferences  and  objected  to  Dawn's  continued  placement  in  



                 10                                                                                 11 

                                                                                                         

Anchorage.           In November the Smiths filed a petition to adopt Dawn.                             At no point in  



the case did Elise file an adoption petition in the superior court.  



                   The superior court conducted a placement hearing following the Tribe's  



                                                              12  

objection  to  placement  with  the  Smiths.                        Following  testimony  by  a  number  of  

witnesses, including Elise,13 the court found that there was continued good cause to  



deviate  from  ICWA's  adoptive  placement  preferences  and  again  approved  Dawn's  



                                        14  

                                            The court then granted the Smiths' adoption petition in  

placement with the Smiths. 



                   15  

March 2012.            Dawn was almost four years old, and had lived with the Smiths for  

almost two and a half years.16  



                   In  separate  appeals,  the  Tribe  appealed  both  the  superior  court's  order  



finding that there was good cause to deviate from ICWA's placement preferences and  



          9        Id . at 435.
  



          10       Id .
  



          11       Id .
  



          12       Id . at 435-39.
  



          13       Id . at 437-38.  



          14       Id . at 439-40.  



          15       Id . at 440.  



          16       Id . at 434, 440.  



                                                            -3-                                                      6954
  


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

                               17  

the  adoption  order.                We  issued  an  order  staying  the  adoption  appeal  while  we  

considered the adoptive placement appeal.18  



                    On June 21, 2013, we issued our decision in the first appeal that examined  

Dawn's adoptive placement with the Smiths.19  We reversed the superior court's finding  



                                                                                               20  

                                                                                                    Though we had held  

of good cause to deviate from ICWA's placement preferences. 



in  previous  cases  that  the  preponderance  of  the  evidence  standard  was  the  correct  



standard of proof, we were convinced by the Tribe's argument that the preponderance  



standard was inconsistent with Congress's intent in enacting ICWA, and that a higher  



                                                                                                                         21  

                                                                                                                              We  

standard of proof - proof by clear and convincing evidence - was required. 



                                                                                                       

overruled our prior cases and remanded the adoptive placement case to the superior court  



                                                                     

for it to take additional evidence and make its determination whether there was clear and  



convincing  evidence  of  good  cause  to  deviate  from  ICWA's  adoptive  placement  



                  22                                                                                  23 

preferences.           We continued our stay order of the adoption appeal.  



          17        Id . at 440 n.10.  



          18        Id .; see also  Native Vill. of Tununak v. State, OCS, et al.                            , No. S-14670  



(Alaska Supreme Court Order, Nov. 29, 2012) (staying sua sponte the adoption appeal   

pending the resolution of the adoption placement appeal).  



          19        Tununak I, 303 P.3d at 431.  



          20        Id . at 453.  



          21        Id . at 446-49.  



          22        Id . at 453.  



          23        Native Vill. of Tununak v. State, OCS, et al.                   , No. S-14670 (Alaska Supreme  



Court Order, Nov. 29, 2012); Native Vill. of Tununak v. State, OCS, et al.                                    , No. S-14670  

                                                                       

(Alaska Supreme Court Order, June 21, 2013) (ordering briefing on whether the stay of  

the adoption appeal should continue following the court's issuance of its opinion in the  

                                                                                                               

adoption placement appeal).  



                                                               -4-                                                         6954
  


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

                              

                     Four days after we issued our opinion in the adoptive placement appeal  



                                                                                                                       

(Tununak I), the United States Supreme Court issued its opinion in Adoptive Couple v.  



                                     24  

Baby  Girl  (Baby  Girl).                  There,  the  Supreme  Court  held  that  ICWA  "  1915(a)'s  



[placement] preferences are inapplicable in cases where no alternative party has formally  



                                                                          

sought to adopt the child.  This is because there simply is no 'preference' to apply if no  

alternative party that is eligible to be preferred under  1915(a) has come forward."25  



                                                       

                     We asked the parties to provide supplemental briefing and oral argument  



                                                                                               

on the effect of the Supreme Court's Baby Girl decision on the adoption appeal currently  



               26  

                                                                                                                   

before us.         We now hold that because the United States Supreme Court's decisions on  



                                                                                                                   

issues of federal law bind state courts' consideration of federal law issues - including  



       

the Indian Child Welfare Act - the decision in Baby Girl applies directly to the adoptive  



                                                                                      

placement case on remand and to this adoption appeal.  We discern no material factual  



                                                                          

differences between the Baby Girl case and this case, so we are unable to distinguish the  



holding in Baby Girl .  Because the Supreme Court's holding in Baby Girl is clear and  



not  qualified  in  any  material  way,  and  because  it  is  undisputed  that  Elise  did  not  



                           

"formally [seek] to adopt" Dawn in the superior court, we conclude that, as in Baby Girl ,  



                                                   

"there simply is no 'preference' to apply[,] [as] no alternative party that is eligible to be  



          24         133 S. Ct. 2552 (2013).  



          25        Id . at 2564.  The dissent argues that this portion of the opinion was dicta.  



We disagree.  While "statements of a legal rule set forth in a judicial opinion do not  

                                                                                                              

always divide neatly into 'holdings' and 'dicta,' " Parents Involved in Cmty. Sch. v.  

                                                                                 

Seattle Sch. Dist. No. 1, 551 U.S. 701, 831 (2007) (Breyer, J., dissenting), in this case,  

                                       

the Court's Baby Girl opinion is divided into distinct sections considering three discrete  

                                                                                                                  

subdivisions of ICWA:   1912(f), 1912(d), and 1915(a).  See Baby Girl, 133 S. Ct. at  

                                           

2557.  The Court's discussion of  1915(a) is succinct and its holding unequivocal, id.  

                                                                        

at 2564-65, and we apply it to the facts of the present appeal.  



          26  

                                                         

                    Native Vill. of Tununak v. State, OCS, et al. , No. S-14670 (Alaska Supreme  

Court Order, Oct. 7, 2013) (ordering briefing and oral argument on the effect of Baby  

Girl on the adoption case).  



                                                                -5-                                                          6954
  


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

                                                

preferred  under    1915(a)  has  come  forward[,]"  and  therefore  ICWA  "  1915(a)'s  



                                                                27  

[placement]  preferences  are  inapplicable."                          We  affirm  the  superior  court's  order  



                                                                                         

granting the Smiths' petition to adopt Dawn and vacate our remand order in Tununak I  



                                                          

requiring the superior court to conduct further adoptive placement proceedings.  We do  



not otherwise disturb our decision in Tununak I.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                             28  

                                                                                                 When she was four  

                    Dawn F. was born in Anchorage in March 2008. 



                             

months  old  OCS  assumed  emergency  custody  and  placed  her  in  foster  care  in  



                 29  

Anchorage.           The Tribe formally intervened in Dawn's CINA case in August 2008 and  



                                                  

submitted a list of potential foster placement options under Alaska Child in Need of Aid  



                  30 

                                                                                  

Rule 8(c)(7)         for Dawn, including placement with her maternal grandmother, Elise F.,  



          27       Baby Girl , 133 S. Ct. at 2564.  



          28        Tununak I, 303 P.3d at 433.  



          29       Id .  



          30        That rule states:  



                             Except  to  the  extent  otherwise  directed  by  order  or  

                    rule, [a tribe that has intervened in the proceedings] shall,  

                    without awaiting a discovery request, provide to other parties  

                                                                           

                    the following information, excluding any privileged material:  

                    . . . .  



                    . . . names and contact information for extended family of the  

                                                                            

                    child, a list of potential placements under . . .  1915, and a  

                                      

                    summary  of  any  tribal  services  or  tribal  court  actions  

                    involving the family.  



                    Unless otherwise directed by the court, these disclosures shall  

                    be made within 45 days of the date of service of the petition  

                                  

                    for adjudication, or for tribes, the date of the order granting  

                                                                                       

                                                                                                           (continued...)  



                                                             -6-                                                        6954
  


----------------------- Page 7-----------------------

                                  31  

                     

who lived in Tununak.                 Elise discussed foster placement at meetings with OCS in July  



                                                                                                                        

and September 2008, but OCS ruled her out as a potential placement because an adult  



                                                                                                             32 

                                                                                                                  OCS placed  

son living with her at the time had a barrier-crime for placement purposes. 



                                                                        

Dawn in a non-Native foster home to facilitate visitation with her mother, Jenn F., who  



                             33  

                                      

lived in Anchorage.              In November 2008 the parties stipulated that there was good cause  



                                                                                                         

to deviate from ICWA's placement preferences, and in March 2009 the superior court  



                                                                                              

found there was good cause to continue the deviation, as Jenn was progressing with her  

OCS case plan and it appeared she might be reunited with Dawn.34  In August 2009 Elise  



                                                                                                                   

contacted OCS to report that her son had moved out; she confirmed that she still sought  

foster placement.35  



                    In October 2009 OCS placed Dawn with non-Native foster parents Kim and  

Harry Smith in Anchorage, and in December 2009 Elise visited Dawn.36  Following this  



          30(...continued)  



                    intervention. A party shall make its initial disclosures based  

                    on the information then reasonably available to it and is not  

                                                                                                 

                    excused from making its disclosures because it has not fully  

                                                                                          

                    completed   its   investigation   of   the   case   or   because   it  

                                                                                        

                    challenges the sufficiency of another party's disclosures or  

                    because another party has not made its disclosures.  



          31        Tununak I, 303 P.3d at 433.  



          32        Id . at 433-34.  



          33        Id . at 434.  



          34        Id .  



          35        Id .  



          36        Id .  



                                                               -7-                                                         6954
  


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

meeting, Elise did not call, write, or communicate with Dawn.37  Also in December 2009  



                                                                                                     

a representative from the Association of Village Council Presidents visited Elise's home  



in Tununak on OCS's behalf and noted potential hazards in the home that needed to be  



                                                              38  

                                                                              

addressed before placement could occur.                            These included unsecured guns, cleaning  



                                                                                                                   

supplies, medicine, and general clutter in the area that Elise planned to use as Dawn's  



              39  

                   In February 2010 Elise assured OCS she would remedy these issues, and  

bedroom.                                                                                                 



OCS  asked  Elise  to  arrange  for  a  second  home  visit  once  she  made  the  proposed  

         

changes.40  



                    In May 2010 Elise attended a visit with Jenn and Dawn and told an OCS  



social worker that she thought Jenn would complete substance abuse treatment; Elise did  

                                                                                                       

not seek foster placement at that time and had not remedied the issues in her home.41  

               



OCS  filed  two  petitions  to  terminate  Jenn's  parental  rights:    the  first  was  denied  in  



                                                                                      42  

November 2010, and a second was filed in April 2011.                                       At a status conference in  



February 2011 Elise was present telephonically, and she questioned the court about  



                                                              43  

whether Dawn would be returned to Jenn.                           The court advised her in no uncertain terms  



that it was not safe for Dawn to return to Jenn's household given Jenn's continuing  



          37        Id .  



          38        Id .  



          39        Id .  



          40        Id .  



          41        Id .  



          42        Id . at 434-35.  



          43        Id . at 435.  



                                                               -8-                                                         6954
  


----------------------- Page 9-----------------------

                                                              44  

mental health issues and illegal drug use.                        The superior court ultimately terminated  

Jenn's parental rights in September 2011.45  Following termination the Tribe argued there  



                                                                                                                        

was  no  longer  good  cause  to  deviate  from  ICWA's  placement  preferences,  and  a  

placement hearing was scheduled.46  



                    The  Smiths  filed  an  adoption  petition  on  November  3,  2011,  and  the  



petition  was  stayed  pending  the  resolution  of  the  ICWA  placement  hearing  on  

November 14, 2011.47  



          B.        Proceedings  



                    1.        The placement hearing and appeal  

                                                                    



                    The superior court noted at the outset of the placement hearing that it would  

                                                                  



not consolidate the CINA placement case with the adoption case, but cautioned the Tribe  

                                                                                                



that it would not get "two bites at the apple";  in  other words, "if the Tribe los[t], it  

                                                                            



                                                                                                  48  

[would]n't get to contest placement in the adoption proceeding."                                       We explained in  



Tununak I that "[w]hen the court declined to consolidate the two cases, it stated that the  



future adoption proceeding would be dependent on the placement ruling in the CINA  

                                           



        49  

case"         and      that     "denying         the     Tribe's       objections         to    adoptive         placement  

[effectively] . . . clear[ed] the way for the Smiths to adopt Dawn."50  



          44        Id .  



          45        Id .  



          46        Id .  



          47        Id .  



          48        Id . at 443.  



          49        Id .  



          50        Id . at 444.  



                                                              -9-                                                        6954
  


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

                                                                  51  

                     Elise testified at the hearing.                   She had previously been an ICWA social  

                                                                    52  When asked if she wanted to take care of  

worker and was aware of her ICWA rights.                                                                                      



Dawn just because the Tribe wanted her to she answered with an equivocal "[y]es and  

                                                                            



       53  

no."       She clarified:  "[I]t is my right to adopt or take my granddaughter and . . . raise  

                                                                 



her as an Alaska Native . . . because she is part of my flesh and blood and so that she  

                                                                                                                        

[can] learn her values in Native culture and traditions and where she came from."54  Elise  

                                       



also said that she had not been able to see Dawn very often due to the expense of travel;  

                                                                                                        



she did not call or write letters to Dawn because the child was too young to read or  



communicate; she knew Dawn did not know her at that point; and she understood Dawn  

                                                                                       

would have to be gradually introduced to life in the village to prevent culture shock.55  

                                                                                   



Elise testified that she wanted Dawn to be placed with her "from the beginning" and she  

                                                                   



recognized that "if [Dawn] had moved [in] with me when [Dawn] was [a] young infant,  

                   



then it could have been easier because [Dawn] would have known [her] grandmother[,]"  

                                                                                                       



but at this point Dawn had been "raised by [Kim and Harry Smith]."  Elise also indicated  

                                                                   



at this hearing that she had filed a petition to adopt Dawn, but the record contains no  

evidence that such a petition was ever filed, and no party has argued to the contrary.55  



                     In its decision on placement the superior court noted that Elise was 67 years  

                                                                                                                      

old and would be 82 when Dawn turned 18.56   The court found Elise's testimony on the  

                                                                         



           51        Id . at 437-38.  



           52        Id .  



           53        Id . at 438.  



           54        Id . (internal quotation marks omitted).  



           55        Id .  



           55        In its briefing to us the Tribe conceded that no court petition was filed.   



           56        Id . at 439.  



                                                                 -10-                                                           6954
  


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

question of whether she wanted to adopt Dawn "less than convincing" and pointed out  



that she had maintained almost no contact with Dawn and knew nothing of Dawn's life  



                      57  

in Anchorage.    The court also found that Elise testified that she wanted to adopt Dawn                               



                                                         58  

because  the  Tribe  wanted   her  to.                          The  court  found  that  the  Smiths  had  been  

"exceptional foster parents" to Dawn.59  Ultimately, the court determined there was good  

                                                                                                                           



cause  to  deviate  from  ICWA's  placement  preferences  by  a  preponderance  of  the  

                                                                                          60   The Tribe moved to stay the  

                                                                                                      

evidence in accordance with Alaska Adoption Rule 11(f). 



Smiths' adoption proceeding pending the Tribe's appeal of the placement ruling to our  

                                                                                                                      

court, but this motion was denied.61  



                     2.         The adoption hearing and appeal  



                     On March 6, 2012, the superior court held an adoption hearing and granted  



                                              62 

                                                                                                           

the Smiths' adoption petition.                     At that hearing the court noted that, since the placement  



                                                                                                           

hearing, "[n]o individual has come forward" and "[n]o names have been put forward of  



                          

somebody who would be ICWA compliant under 1915(a) and the [Smiths] have been  



                                                                                                                        

there for Dawn for . . . these several years and the child's almost four."   The court  



concluded  it  was  in  Dawn's  best  interest  to  be  adopted  that  day  by  the  Smiths,  but  



cautioned that "the adoption [could] be reversed . . . anything could happen including  



                                                                                                         

removal of the child" from the Smiths' care. Elise did not appear at the adoption hearing.  



           57        Id .  



           58        Id .  



           59        Id .  



           60        Id . at 439-40.  



           61        Id . at 440.  



           62        Id .  



                                                                 -11-                                                            6954
  


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

                    The Tribe appealed the adoption to our court.  On November 29, 2012, we  

                                                                                              



issued  an  order  sua  sponte  staying  the  adoption  appeal  pending  our  decision  in  the  

                

related adoption placement appeal.63  



                    3.	       Our  decision  in  the  placement  appeal  in  Tununak  I  and  the  

                              United States Supreme Court's decision in Baby Girl  

                    We issued our decision in the placement appeal on June 21, 2013.64  In that  



opinion we reversed and remanded the superior court's adoptive placement decision.65  

                                                                                    



We concluded that ICWA requires a heightened clear and convincing evidence standard  

                                        



                                                                                             66  

of proof be applied to the  1915(a) good cause determination.                                   Because the superior  

                                                                         



court's placement decision was decided under a preponderance of the evidence standard,  

                                                                        



we  remanded  for  the  superior  court  to  undertake  a  new  good  cause  determination,  



consistent with a clear and convincing evidence standard, to decide whether deviation  

                 



from   the   preferred   placement   preferences   provided   in   ICWA      1915(a)   was  



                  67  

appropriate.          We issued an order along with our decision in Tununak I that requested  



the parties to brief their positions on whether our stay of Dawn's adoption appeal should  

                                    



                                                                                                                            68  

continue pending the superior court's proceedings on remand following Tununak I.  



                    The United States Supreme Court issued its decision in Adoptive Couple  

                                                                                       



v. Baby Girl four days later; the Court held that ICWA " 1915(a)'s preferences are  



          63        Native Vill. of Tununak v. State, OCS, et al.                 , No. S-14670 (Alaska Supreme  



Court Order, Nov. 29, 2012).  



          64	       Tununak I, 303 P.3d at 431.  



          65        Id . at 453.
  



          66        Id .
  



          67
       Id . at 452-53.  



          68        Native Vill. of Tununak v. State, OCS, et al. , No. S-14670 (Alaska Supreme  

                                                                                     

Court Order, June 21, 2013).  



                                                             -12-	                                                       6954
  


----------------------- Page 13-----------------------

inapplicable in cases where no alternative party has formally sought to adopt the child.  

                                                                                                         



This is because there simply is no 'preference' to apply if no alternative party that is  

                                                                                                                 

eligible to be preferred under  1915(a) has come forward."69  



                    In Baby Girl, the child's biological father (Biological Father) and biological  



mother (Birth Mother) broke off their engagement after Birth Mother became pregnant  

             

but  would  not  accommodate  Biological  Father's  request  to  move  up  the  wedding.70  



Biological Father had no meaningful contact with Birth Mother following the couple's  

                                                          



separation and sent her a text message indicating that he wished to relinquish his parental  

                                                                                



          71  

rights.       Birth Mother decided to give the child up for adoption and selected a non- 

Native adoptive couple (Adoptive Couple) through a private adoption agency.72  



                    Approximately  four  months  after  Baby  Girl's  birth,  Adoptive  Couple  



                                                                                                              73  

served Biological Father with notice of their pending adoption petition.                                           Biological  



                                                                                                                  74  

Father signed the paperwork, stating he was not contesting the adoption.                                              He later  

testified  that  he  assumed  he  was  relinquishing  parental  rights  to  Birth  Mother.75  



Biological Father contacted a lawyer a day after signing the papers and subsequently  

                                                                    

                                                                    76   In those proceedings he sought custody  

requested a stay of the adoption proceedings.  

                                                                         



of Baby Girl, took a paternity test, and participated in a four-day trial after which the  

                                                



          69        Baby Girl , 133 S. Ct. 2552, 2564 (2013).
  



          70  

                    Id . at 2558.
  



          71        Id .
  



          72        Id .
  



          73        Id .
  



          74        Id .
  



          75        Id .
  



          76        Id . at 2558-59.  



                                                              -13-                                                         6954
  


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

South  Carolina  Family  Court  ultimately  awarded  him  custody  and  denied  Adoptive  

Couple's adoption petition.77  



                    That decision was appealed to the South Carolina Supreme  Court, and  



                                                                    78  

Biological  Father  participated  in  that  appeal.      The  South  Carolina  Supreme  Court  



                                                                                                                  

characterized his appeal as a "legal campaign to obtain custody" and affirmed the family  



                  79  

court  order.           The  decision  was  appealed  to  the  United  States  Supreme  Court,  and  



                                                                           80  

Biological Father again participated in that appeal.                           At no point did Biological Father  



                                                 81  

file a petition to adopt Baby Girl.                    



                    The United States Supreme Court ultimately reversed the South Carolina  

                                                                                                           



Supreme Court, holding in part that ICWA " 1915(a)'s preferences are inapplicable in  



                                                                                                             82  

cases where no alternative party has formally sought to adopt the child."                                        The Court  



                                                                                                  

reasoned:  "This is because there simply is no 'preference' to apply if no alternative party  

that is eligible to be preferred under  1915(a) has come forward."83  



                                                                                                         

                    Because the Supreme Court's interpretation of ICWA  1915(a) in Baby  



                                                              

Girl  called into doubt the application of  1915(a)'s placement preferences on remand  



                                                                                                    

in Tununak I - as no one but the Smiths sought to formally adopt Dawn - we issued  



          77        Id . at 2559; Adoptive Couple v. Baby Girl , 731 S.E.2d 550, 555-56 (S.C.   



2012) (Adoptive Couple ) (indicating that the trial took place from September 12-15,  

2011, when Baby Girl was roughly two years old), reh'g denied, (Aug. 22, 2012), cert.  

granted , 133 S. Ct. 831 (2013), and rev'd, 133 S. Ct. 2552 (2013).  



          78        Adoptive Couple , 731 S.E.2d at 552.  



          79        Id . at 552, 561.  



          80        Baby Girl , 133 S. Ct. at 2556.  



          81        Id . at 2564.
  



          82        Id .
  



          83        Id .  



                                                             -14-                                                        6954
  


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

                                                                                                      

an order directing the parties to brief the effect of Baby Girl  on the present adoption  

appeal and granted oral argument in the matter.84  



III.       STANDARD OF REVIEW  



                                                                                                            

                      "[T]he  [United States] Supreme Court's decisions on issues of federal law,  



including   issues   arising   under   the   Federal   Constitution,   bind   the   state   courts'  



                                                 85                                                             86 

                                                                                        

consideration of those issues,"                      and we review those issues de novo.                            Pure questions  



                                                                                                                                

of law, including issues of statutory interpretation, invoke our "duty to 'adopt the rule  



                                                                                                                         87 

                                                                                                                            using our  

of law that is most persuasive in light of precedent, reason, and policy' " 

independent judgment. 88  



IV.        DISCUSSION  



                                                                                                                    

                      All parties agree that we must decide the Tribe's challenge on appeal to the  



                                                                                                 

Smiths' adoption of Dawn in light of the Supreme Court's decision in Baby Girl .  The  



State contends that "[b]ecause no one other than the Smiths formally sought to adopt  



                                                  

Dawn, her adoption should be upheld under the controlling [Baby Girl] decision."  The  



                                                              

Smiths agree.  The Tribe urges us to vacate the superior court's adoption decree and  



                                                           

remand this matter for an adoptive placement determination based on our decision in  



                  

Tununak I that required the superior court to find, under a clear and convincing evidence  



standard, whether there is good cause to deviate from ICWA  1915(a)'s placement  



           84        Native Vill. of Tununak v. State, OCS, et al.                        , No. S-14670 (Alaska Supreme     



Court Order, Oct. 7, 2013).  



           85        Doe v. State, Dep't of Pub. Safety , 92 P.3d 398, 404 (Alaska 2004).  



           86  

                                                              

                      State, Dep't of Health & Soc. Servs., Office of Children's Servs. v. Doherty,  

 167 P.3d 64, 68-70 (Alaska 2007) (applying de novo review to  1983 claims as a matter  

of federal law).  



           87  

                                                                                         

                      West v. Buchanan, 981 P.2d 1065, 1066 (Alaska 1999) (quoting Guin v.  

Ha , 591 P.2d 1281, 1284 n.6 (Alaska 1979)).  



           88        Doe , 92 P.3d at 402.  



                                                                   -15-                                                             6954
  


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

preferences. The Tribe takes the position that:                        (1) Baby Girl is factually distinguishable  



and inapplicable to state-driven child protection cases; (2) to the extent                                   Baby Girl does  



apply,  it  merely   requires  that  a  specific  family  be  formally  identified  as  desiring  



placement of the Native child and Elise satisfied that requirement in this case; and (3) the   



requirement is satisfied in Alaska as soon as a tribe intervenes in the case and makes  



formal CINA Rule 8(c)(7) disclosures.  



                                                  

                    Finally, the Tribe  contends that, if we interpret Baby Girl to mean that  



                               

ICWA's placement preferences are inapplicable until an alternative adoptive family files  



                                                                          

a competing adoption petition, this decision will have disastrous results for rural Alaska,  



placing  the  largest  burden  on  Native  families  with  the  fewest  legal  and  financial  



                                  

resources, and create a dangerous disincentive for OCS, as the agency will place Native  



                                                                                                                  

children  in  the  first  available  home,  thereby  neutering  the  protections  that  ICWA  



originally sought to provide to promote the preservation of the Indian family.  



                    The Tribe's interpretation of Baby Girl , as echoed by the dissent, strains the  



                                                                                                    

plain wording of a clear, unequivocal, and unqualified decision on a matter of federal law  



as interpreted by the United States Supreme Court.  For the reasons that follow, we  



                                                                 

conclude that we are required to apply the Supreme Court's bright-line interpretation of  



                

ICWA    1915(a)'s  placement  preferences  to  bar  from  consideration  as  an  adoptive  



placement an individual who has taken no formal step to adopt the child.  



                                                                         

          A.	       ICWA  1915(a) and Baby Girl Do Not Distinguish A State-Initiated  

                    Child Custody Proceeding From A Voluntary Private Adoption.  



                    ICWA  1915(a)'s placement preferences apply to "any adoptive placement  

                                                       89 and ICWA defines adoptive placements broadly  

of an Indian child under State law,"                                                     



as  "the  permanent  placement  of  an  Indian  child  for  adoption,  including  any  action  



          89        25 U.S.C.  1915(a) (emphasis added).  



                                                               -16-                                                             6954  


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

                                                               90  

resulting  in  a  final  decree  of  adoption."                      The  federal  statute  does  not  distinguish  



between state-initiated child protection cases and voluntary adoptions.  The Supreme  



                                                                                           

Court in Baby Girl also did not carve out such a distinction.  In Baby Girl , the Supreme  



Court held without qualification that  1915(a), "which provides placement preferences  



for the adoption of Indian children, does not bar a non-Indian family like Adoptive  



                                                                                                             

Couple from adopting an Indian child when no other eligible candidates have sought to  



                         91  

adopt the child."            The Court emphasized that the "scope" of  1915(a) has a "critical  



limitation," namely, that " 1915(a)'s preferences are inapplicable in cases where no  



                                                                                     92  

                                                                                                 

alternative party has formally sought to adopt the child."                               The Court reiterated, "This  



                                     

is because there simply is no 'preference' to apply if no alternative party that is eligible  



                                                                               93  

to be preferred under  1915(a) has come forward."                                 To make its rationale perfectly  



                                                         

clear, the Court again explained that, because Adoptive Couple was the only family that  



"sought to adopt Baby Girl,"  1915(a)'s "rebuttable adoption preferences [did not]  



                                                                                                                      94  

apply [because] no alternative party . . . formally sought to adopt the child."                                           As a  



policy  matter,  the  Court  broadly  concluded  that  while  ICWA  "was  enacted  to  help  



                                  

preserve  the  cultural  identity  and  heritage  of  Indian  tribes,"  to  require  a  placement  



preference  determination  for  a  party  who  did  not  seek  to  adopt  "would  put  certain  



                                                                                            

vulnerable children at a great disadvantage solely because an ancestor - even a remote  



                                  95 

                                                                                                

one - was an Indian."                 The Court cautioned that such a result may cause "prospective  



          90        25 U.S.C.  1903(l)(iv) (emphasis added).  



          91        Baby Girl , 133 S. Ct. 2552, 2557 (2013).  



          92        Id . at 2564.  



          93        Id .  



          94        Id . at 2565.  



          95        Id .  



                                                              -17-                                                         6954
  


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

                                          

adoptive parents [to] . . . pause before adopting any child who might possibly qualify as  

an Indian under the ICWA."96  



                      The dissent characterizes these statements by the United States Supreme  



Court interpreting  1915(a) as dicta addressing the South Carolina Supreme Court's  



suggestion that if it had terminated Biological Father's rights,  1915(a)'s preferences  



                                                                                                                   

would have applied.  But Baby Girl explained, clarified, and decided that  1915(a) did  



                                                                         

not apply where no alternative party sought to adopt the Indian child, as was the case of  



                                                                                                        

Biological Father.  When discussing the distinction between a holding and dictum, the  



                                                                                                                                  

Supreme Court has directed that "[w]hen an opinion issues for the Court, it is not only  



                                             

the result[,] but also those portions of the opinion necessary to that result by which we  



                    97  

are  bound."               We  are  likewise  bound  by  the  Supreme  Court's  holding  concerning  



                                                                                                            

 1915(a); it was necessary to the Supreme Court's reversal of the judgment of the South  



                                                                                                                             98  

                                                                                                                                 In those  

Carolina Supreme Court and its remand of the case for further proceedings. 



           96         Id .  



           97         Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996).  



           98         See Baby Girl, 133 S. Ct. at 2564-65.  The dissent points out that                                      Baby Girl  



did not consistently use the word "hold" in its summary of the three central holdings in                         

the case; instead, the Court stated:  



                      [W]e hold  that 25 U.S.C.  1912(f) . . . does not apply when,       

                      as here, the relevant parent never had custody of the child.  

                      We further hold that  1912(d) . . . is inapplicable when, as  

                                                                                                           

                      here, the parent abandoned the Indian child before birth and  

                      never  had  custody  of  the  child.    Finally,  we  clarify  that  

                      1915(a) . . . does not bar a non-Indian family like Adoptive  

                                                     

                      Couple from adopting an Indian child when no other eligible  

                                                                            

                      candidates have sought to adopt the child. We accordingly  

                      reverse the South Carolina Supreme Court's judgment and  

                      remand for further proceedings.   



Id . at 2557 (emphasis added).  Contrary to the dissent's argument, we do not agree that  

                    

                                                                                                                         (continued...)  



                                                                    -18-                                                               6954
  


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

          98(...continued)  



the Court's use of the word "clarify" as opposed to "hold" when addressing 1915(a)  

"leaves  room  for  states  to  determine  under  their  own  adoption  procedures  when  an  

                                                                                    

eligible candidate has come forward such that the preferences should be applied."  Our  

                                  

cases often use the word "clarify" to signal a holding.  For example, in Bruce L. v. W.E. ,  

247 P.3d 966, 976 (Alaska 2011), we stated:  



                    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   matters   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.  



(emphasis added) (footnote omitted).  See also Griswold v. City of Homer, 252 P.3d  

1020, 1027 (Alaska 2011) ("We therefore clarify that where the superior court acts as an  

                                                                         

intermediate appellate court . . . its opinion or decision on appeal is the 'judgment' to  

                                                                                                            

which [the applicable appellate rule] refers." (emphasis added)); Husseini v. Husseini ,  

230 P.3d 682, 688 (Alaska 2010) ("We take this opportunity to elaborate on our holding  

                                                                                                            

in [a prior case] . . . .  [W]e clarify that the trial court's decision to order the sale of a  

                                                                                    

marital asset prior to the final property decision must be accompanied by factual findings  

that demonstrate the exceptional circumstances justifying such a sale and that specifically  

articulate the grounds upon which the order for sale is based." (emphasis added)); Keane  

                                                                               

v. Local Boundary Comm'n , 893 P.2d 1239, 1249-50 (Alaska 1995) ("[W]e clarify that  

                                                          

the test presented in [our prior case], is still applicable . . . [and] 'a different rule applies  

                                                                                                                

where the party seeking the injunction stands to suffer irreparable harm and where, at the  

same time, the opposing party can be protected from injury.' " (emphasis added) (citation  

                                                                                         

omitted)).  



                    We conclude that the dissent's "reliance on words, phrases, and quotations"  

over substantive legal conclusions in this case confuses dicta from the Court's actual  

holding.    Judith  M.  Stinson,  Why  Dicta  Becomes  Holding  and  Why  It  Matters,  76  

                                                      

BROOK .  L.  REV . 219, 222 (2010).                The Supreme Court, as the ultimate arbiter of federal     

                                                                                                            (continued...)  



                                                             -19-                                                        6954
  


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

further proceedings, it was clear to the South Carolina Supreme Court that  1915(a)'s  



                                

rebuttable  adoption  preferences  did  not  apply  to  Biological  Father,  and  the  South  



Carolina court did not apply them.  As the South Carolina Supreme Court stated on  



remand:  



                                                                              

                    The  [United  States]  Supreme  Court  has  articulated  the  

                   federal      standard ,        and     its   application        to    this    case     is  

                                                

                    clear:  .  .  .  ICWA  does  not  authorize  [Biological]  Father's  

                                                       

                    retention   of   custody.   Therefore,   we   reject   [Biological]  

                    Father's  argument  that  1915(a)'s  placement  preferences  

                    could  be  an  alternative  basis  for  denying  the  Adoptive  

                    Couple's  adoption  petition.    The  Supreme  Court  majority  

                    opinion unequivocally states [] [that] " 1915(a)'s preferences  

                                                      

                    are  inapplicable  in  cases  where  no  alternative  party  has  

                    formally sought to adopt the child." . . . .  As the opinion  

                                              

                    suggests,  at  the  time  Adoptive  Couple  sought  to  institute  

                                                                                 

                    adoption proceedings, they were the only party interested in  

                                                                                   

                    adopting [Baby Girl].  Because no other party has sought  

                                                                                   

                    adoptive placement in this action,  1915 has no application  

                                                                       

                                                                [99] 

                    in concluding this matter . . . .  



The  Supreme  Court's  federal  standard  is  now  clear,  and  consequently    1915(a)'s  



preferences will not apply in this case.  



                    The  dissent  asserts  that  Baby  Girl  is  factually  distinguishable  because  



                                                                                               

"[r]ather than a termination of parental rights through a private adoption arranged by a  



                                    

non-Indian parent after an Indian parent abandoned the child, this was a state-sponsored  



                                                                                                                   

parental rights termination and a state-sponsored adoptive placement clearly subject to  



          98(...continued)  



law, has counseled that "unless we wish anarchy to prevail within the . . . judicial system,  

                                                                                                          

a precedent of this Court must be followed by the lower . . . courts [on issues of federal  

law] no matter how misguided the judges of those courts may think it to be."  Hutto v.  

                               

Davis , 454 U.S. 370, 375 (1982).  Baby Girl compels today's result.  



          99        Adoptive Couple v. Baby Girl , 746 S.E.2d 51, 52-53 (S.C. 2013) (footnote  



and citation omitted) (emphasis added), petitions for reh'g denied , 746 S.E.2d 346 (S.C.  

                                                                                                   

2013), stay denied, 134 S. Ct. 32 (2013).  



                                                             -20-                                                        6954
  


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

ICWA."  The Supreme Court previously has explicitly discussed distinctions between  



                                                                                             

voluntary and non-voluntary relinquishments of parental rights in the context of ICWA;  



it did not do so in Baby Girl .  In Mississippi Band of Choctaw Indians v. Holyfield  



                                                          

(Holyfield), the Court noted that while the focus of Congressional testimony on ICWA  



                                                                                      

was "on the harm to Indian parents and their children who were involuntarily separated  



                                                              

by decisions of local welfare authorities, there was also considerable emphasis on the  



                                                                                                                100 

                                                                                                                    outside  

impact on the tribes themselves [from] the massive removal of their children" 



                       101  

of  this  context.            The  Holyfield  decision  involved  the  voluntary  adoption  of  twin  



          102  

babies.         The Court concluded that ICWA still applied to such a situation because  



                                

"[t]ribal jurisdiction under  1911(a) was not meant to be defeated by the actions of  

individual members of the tribe,"103 and congressional intent clearly indicated that an  



          100       490 U.S. 30, 34 (1989).  



          101      Id .   at   49-51   (discussing   how   Congress   subjects   non-Indian   family  



placements of young Indian children to ICWA's "jurisdictional and other provisions,  

even in cases where the parents consented to an adoption, because of concerns going  

beyond the wishes of individual parents" (emphasis added)).  



          102      Id . at 37.  In      Holyfield a petition for adoption was filed for twin babies  



whose parents were enrolled members of the Mississippi Band of Choctaw Indians and  

residents and domiciliaries of the tribal reservation in Mississippi.  Id .  The twins were  

               

born 200 miles from the reservation, and the parents executed consent-to-adoption forms  

                                                      

leading to the adoption of the children by non-Indian adoptive parents. Id . at 37-38.  The  

                                            

tribe moved to vacate and set aside the decree of adoption.  Id . at 38. The Supreme Court  

                                                                                          

held the children were "domiciled" on the reservation within the meaning of ICWA's  

exclusive tribal jurisdiction provision even though they were never physically present  

on the reservation themselves, and the trial court was without jurisdiction to enter the  

                                                                                             

adoption decree even though the children were "voluntarily surrendered" for adoption.  

                                                 

Id . at 48-51.  



          103      Id . at 49.  



                                                            -21-                                                       6954
  


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

individual Indian could not defeat ICWA's jurisdictional scheme by voluntary action.                                           104  



                    In   Holyfield ,        the    Court       adopted        and     applied       its   broad-sweeping  



                                                                         

interpretation of ICWA to all types of parental rights relinquishment cases, including  



                                              

those arising out of a parent's voluntary action.  If in Baby Girl the Court had intended  



                                                                                                                         

to limit its holding to voluntary adoptions, it certainly could have articulated such a  



                                                                 

restriction.  But no such limiting language appears in the Court's opinion in Baby Girl .  



                                                                                                                      

Because the Court did not limit its holding in Baby Girl to voluntary adoptions, we reject  



                         

the Tribe's and the dissent's attempt to factually distinguish Baby Girl from the case  



                                                                                                

before us where the adoption resulted from state-initiated child protective proceedings.  



          B.        Elise Did Not Formally Seek To Adopt Dawn.  



                    We are "not bound by decisions of federal courts other than the United  

                                                                             105  But in cases where the Supreme  

                                                                                                      

States Supreme Court on questions of federal law."  



Court has decided a question of federal law that is directly applicable to and binding on  

                                                            



the case we are to decide, we "owe obedience to the decisions of the Supreme Court of  

                                                                       



the United States . . . and a judgment of the Supreme Court provides the rule to be  

followed . . . until the Supreme Court sees fit to reexamine it."106  



                    After  Dawn  was  placed  in  emergency  foster  care,  the  Tribe  early  on  



provided Elise's name to OCS as a potential placement option in its CINA Rule 8(c)(7)  

                                                                                    

disclosures.107  Elise discussed her initial interest in being a placement with OCS, but she  

                                                                          



          104       Id . at 51.  



          105       Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995) (citing In re F.P. , 843  



P.2d 1214, 1215 n.1 (Alaska 1992)).  



          106       McCaffery v. Green , 931 P.2d 407, 415   (Alaska 1997) (Rabinowitz, J.,  



dissenting)  (quoting  1B  J 

                                         AMES   W.    MOORE   ET   AL .,    MOORE 'S   FEDERAL   PRACTICE  

 0.402[1], at 1-10 (2d ed.1996)) (internal quotation marks omitted).  



          107       Tununak I, 303 P.3d 431, 433 (Alaska 2013).  



                                                              -22-                                                         6954
  


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

was ruled out at that time because an adult son living with her had a barrier-crime.108  



Dawn was placed with non-Native foster parents in Anchorage so that she could be  



                                                                               

closer to her mother while Jenn completed treatment, and the parties stipulated that there  



                            

was good cause to deviate from ICWA's placement preferences during this period while  



                                                                    109  

                                                                          In August 2009 Elise contacted OCS  

Jenn worked toward reunification with Dawn.                                                                



to report that her son had moved out; she confirmed that she still sought placement, but  

                                                                                          



in December 2009 a representative from the Association of Village Council Presidents  

                                



visited Elise's home in Tununak on OCS's behalf and noted potential hazards in the  

                                                                                                110   Elise assured OCS  

                                                                                                              

home that needed to be addressed before placement could occur.  



                                                  111  

she  would  remedy  these  issues.                       During  this  period  Jenn  was  working  toward  

                                     112 and Elise understandably wished to support her daughter in  

reunification with Dawn,                                                                       



that endeavor.  



                                                                                        

                    The critical piece, however, is Elise's failure to formally assert her intent  



                                                                                                             

to adopt Dawn as OCS moved toward terminating Jenn's parental rights.  The superior  



                                                                                           

court denied OCS's first petition to terminate parental rights in November 2010, and a  



second  petition  was  filed  in  April  2011  that  ultimately  resulted  in  termination  in  



September 2011.  At a status conference in February 2011 the superior court advised  



                                                            

Elise that placement with Jenn was not a viable option due to Jenn's continued mental  



                                                                                          

health and drug issues.  And when the Smiths filed a formal petition to adopt Dawn on  



                                                  

November 3, 2011, Elise did not file a competing adoption petition or any other formal  



          108       Id . at 433-34.
  



          109       Id . at 434.
  



          110       Id .
  



          111       Id .
  



          112       Id .
  



                                                             -23-                                                        6954
  


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

                                                                                         113  

request that might serve as a proxy for such a petition.                                      In other words, knowing that   



the Smiths had the only legally viable request for adoption before the court at that time,                                  



Elise did not file a competing request to be considered an adoptive parent for Dawn prior            



to the placement hearing.  



                                                                                                                           

                      Elise did appear at the November 14, 2011 placement hearing and testified  

                                                   114   She also testified that she had filed a formal adoption  

that she wanted to adopt Dawn.                                                                                       



petition herself in Bethel.  From the record developed by the parties both in the superior  

                                            



court and in this court, there is no indication that Elise filed an adoption petition or  

                                                                              



otherwise filed any formal court document demonstrating her intent to adopt Dawn.  In  

                                                                                                



its briefing to us the Tribe conceded that no court petition was filed.  The superior court  



found Elise's testimony on her desire to adopt "less than convincing," observing that  



Elise also said that she wanted to adopt Dawn because the Tribe wanted her to and  



                                                                                          

pointing out that she had maintained almost no contact with Dawn and knew nothing of  



                                                                    

Dawn's life in Anchorage.  The superior court made this credibility determination and  



                                                                                 

our role as the reviewing court is not to reweigh the evidence on this point, but instead  

to "review a trial court's decision in light of the evidence presented to that court."115  



                      In  Baby  Girl ,  Biological  Father  displayed  a  much  higher  level  of  

                                                                                                   



involvement,  but  the  Supreme  Court  nonetheless  found  his  efforts  insufficient.  



Biological Father requested a stay of the adoption proceedings after learning of Adoptive  



                                                                                                 116  

Couple's pending request and sought custody of Baby Girl.                                             He participated in a trial  



           113        See id. at 435.
  



           114        Id . at 435, 437-38.
  



           115        Chloe  O.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's
  



Servs., 309 P.3d 850, 856 (Alaska 2013).  



           116        Baby Girl , 133 S. Ct. 2552, 2558-59 (2013).  



                                                                    -24-                                                             6954
  


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

                                                                                           117 

                                                                                                             

in the South Carolina Family Court and was awarded custody,                                     had that custody order  



                                                                      118 

                                                                          and participated in the appeal before  

affirmed by the South Carolina Supreme Court, 



                                                          

the  United  States  Supreme  Court.                      Notwithstanding  this  active  participation  by  



                                                        

Biological Father at every level of the state and federal litigation, the Supreme Court still  



                                                              

found that "he did not seek to adopt Baby Girl; instead, he argued that his parental rights  

                                                               119 In other words, because Biological Father  

should not be terminated in the first place." 



did not "formally [seek] to adopt" Baby Girl, the Supreme Court held that he could not  

                                     



be an ICWA preferred placement - he was not an "alternative party" that triggered  

 1915(a)'s adoptive preferences.120  



                    Applying the Supreme Court's controlling precedent to the facts before us,  

                                                                                                      



it is clear that this is also a case where "there simply is no 'preference' to apply [as] no  

       



                                                                                                                         121 

alternative party that is eligible to be preferred under  1915(a) has come forward"                                         to  

                  



adopt Dawn.  Because the Smiths were the only family that, in the words of the Supreme  

                                        



Court, "formally sought to adopt" Dawn,  1915(a)'s "rebuttable adoption preferences  

[do not] apply [because] no alternative party has formally sought to adopt [this] child."122  

                                                                       



In short, we are bound by Baby Girl 's interpretation of this subsection of ICWA, and  

                                                                                           



cannot ignore the Supreme Court's clear, unqualified ruling on a matter of federal Indian  



law.  



          117       Id . at 2559.  



          118       Id .  



          119       Id . at 2564 (emphasis in original).  



          120       Id . at 2565 ("Nor do  1915(a)'s rebuttable adoption preferences apply   



when no alternative party has formally sought to adopt the child.").  



          121       Id. at 2564.  



          122       Id . at 2565.  



                                                             -25-                                                        6954
  


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

          C.	       Alaska   CINA   Rule   8(c)(7)   Disclosures   Are   Not   Analogous   To  

                    Requiring An Individual To Formally Seek To Adopt A Child.  



                    We are likewise not persuaded by the Tribe's argument that Elise's contact  

                                                                                                     



information on the Tribe's CINA Rule 8(c)(7) disclosure in the underlying CINA case  

                                                                                         



amounts to a formal adoption request.  Rule 8(c)(7) directs that a tribe shall "without  



                                                                               

awaiting a discovery request, provide to other parties . . . names and contact information  



                                                                                                          

for extended family of the child, a list of potential placements under . . .  1915, and a  



                                                                  

summary of any tribal services or tribal court actions involving the family."  These initial  

disclosures must be made within 45 days of the order granting intervention.123  



                    A  tribe's  production  of  contact  information  for  possible  placements  is  



neither  equivalent  nor  analogous  to  a  formal  adoption  petition.    Rule  8(c)(7)  is  a  



                 

discovery procedure; it requires disclosure of potential placement options for OCS to  



                                                                

consider.  A Rule 8(c)(7) disclosure  was  filed by the Tribe; it does not in any way  



                                                 

represent a clear expression by Elise (or anyone else) of a formal intent to adopt the  



                                                                                                        

child.  An adoption petition, on the other hand, is the legally "formal" way for a person  



to express a readiness and willingness to adopt a child.  In Baby Girl , the Supreme Court  



envisioned  a  bright-line  test:    in  order  to  qualify  for  ICWA    1915(a)'s  adoptive  



                                                          

placement  preference,  one  must  first  "formally  seek"  to  adopt  the  child  by  filing  a  



                                124  

                                       If  Biological  Father  did  not  meet  this  bright-line  standard,  

petition  for  adoption.                                                          



notwithstanding his significant involvement at every level of the Baby Girl case, the  



Tribe's tender of Elise's contact information shortly after the Tribe's intervention in this  

                                                                                    



case cannot meet the standard of "formally seeking" to adopt.  



          123       CINA Rule 8(c)(7).  



          124      Baby Girl , 133 S. Ct. at 2564.  



                                                            -26-                                                           6954  


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

          D.        The Tribe's Policy Considerations  



                                              

                   Finally, the Tribe argues that if we interpret Baby Girl to hold that ICWA's  



 placement  preferences  are  inapplicable  until  an  alternative  Native  adoptive  family  



 member files a competing adoption petition, this decision will place a difficult burden  



 on Native families, which have the fewest legal and financial resources, and create a  



                                                       

 dangerous incentive for OCS to place Native children in the first available home "except  



 in the rare case when a Native family files its own adoption petition."  The dissent echoes  



                                                                                                        

 the Tribe's concerns, noting that "at least one state practice guide" does not read Baby  



                                                                                                     

 Girl to mean an adoption petition must be filed; rather, all the practice guide cautions is  



                                                                      

 that the adoptive candidate "formally" assert his or her intent to adopt the child and take  

 "proper steps" to convey these intentions to the court.125  



                                                                                                 

                   But the dissent misses the point of the practice guide.  The practice guide  



 concludes that "[f]or practitioners representing a parent of an Indian child who wants  



 assurances that his or her child will be placed with another family or tribal member if  



                                                                                 

 adoption is needed, the lesson is clear:  identify early on any family members, relatives,  



 or tribal members who are willing and desirous of custody and take proper steps  to  



                                                                                      126  

formally  convey their intentions to the court in this regard."                            As we have explained,  



                                               

 we read Baby Girl to mean that filing a petition for adoption is "formally" asserting an  



 intent to adopt using the "proper steps."  And while we do not disregard the Tribe's  



 policy concerns, neither may we disregard the holding of the Supreme Court on this  



 matter of federal law.  



                                       

                   Having  said  this,  we  urge  tribes  and  OCS  to  enable  and  assist  tribal  



 members to seek placement early in CINA and voluntary adoption cases, accompanied  



          125      See  CHRISTINE  P.   COSTANTAKOS,   JUVENILE  COURT  LAW  &   PRACTICE  



  13:12 (2013).  



          126      Id . (emphasis added).  



                                                           -27-                                                        6954  


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

by a formal adoption petition once it appears that OCS's goal for the child is adoption.  

                                                                    



The Alaska Court System, attorneys representing tribes in Alaska, the CINA bar, the  

                                                                                                      



probate bar, and others will work to develop appropriate adoption forms and online  

                                                                      



information and instructions to assist tribes and potential adoptive parents in navigating  

                                                                                                              



this requirement.  



                    We  also  stress  that  OCS  remains  bound  to  comply  with    1915(a)'s  



adoptive  placement  preferences  for  "(1)  a  member  of  the  child's  extended  family;  



(2) other members of the Indian child's tribe; or (3) other Indian families."  And our  



                                  

decision in Tununak I directs that "OCS must prove by clear and convincing evidence  



                                             

that  there  is  good  cause  to  deviate  from  ICWA    1915(a)'s  adoptive  placement  



                    127  

preferences."              Implicit  in  this  holding  is  the  understanding  that  before  the  court  



entertains  argument  that  there  is  good  cause  to  deviate  from    1915(a)'s  preferred  



placements, it must searchingly inquire about the existence of, and OCS's efforts to  

                                                                                                 



comply  with  achieving,  suitable    1915(a)  preferred  placements.    Contrary  to  the  



                                                               

dissent's suggestion, today's decision has no bearing on OCS's duty to comply with the  



express purpose of ICWA "to promote the stability and security of Indian tribes and  



               128  

                           

families."          We anticipate that our decisions in Tununak I and today will highlight the  



importance of OCS identifying early in a CINA case all potential preferred adoptive  



                                                     

placements, and the importance of a person claiming preferred placement filing a petition  



                                                                                                

for adoption, in order to effectuate Congress's intent "to protect the rights of the Indian  



                                                                                                  

child  as  an  Indian  and  the  rights  of  the  Indian  community  and  tribe  in  retaining  its  

children in its society."129  



          127       Tununak I, 303 P.3d 431, 450 (Alaska 2013).  



          128       D.J. v. P.C.      , 36 P.3d 663, 677 (Alaska 2001) (internal quotation marks  



omitted) (citing 25 U.S.C.  1902).  



          129       Tununak I, 303 P.3d at 441-42 (citing Miss. Band of Choctaw Indians v.  

                                                        

                                                                                                            (continued...)  



                                                             -28-                                                        6954
  


----------------------- Page 29-----------------------

V.       CONCLUSION  



                                                                     

                   Because we are bound to follow the United State Supreme Court's decision  



in Baby Girl , and because no one but the Smiths formally sought to adopt Dawn, we  



                                                                                                 

AFFIRM the superior court's grant of the adoption and VACATE  Tununak I's prior  



                               

order  for  a  renewed  good  cause  hearing  in  the  underlying  placement  matter.    The  



remainder of our opinion in Tununak I is unaffected by our decision today.  



          129(...continued)  



Holyfield , 490 U.S. 30, 37 (1989)).  



                   Additionally,  as  the  dissent  acknowledges,    1915(e)  requires  OCS  to  

document its "efforts to comply with the order of preference specified in [ 1915(a)]"  

                                                                                       

when such a placement is made following a properly filed petition.  We expect that the  

                                                               

superior court will carefully and actively scrutinize OCS's efforts in identifying potential  

                                              

adoptive placements and complying with its obligations under  1915(a) and our case  

law.  



                                                          -29-                                                    6954
  


----------------------- Page 30-----------------------

WINFREE, Justice, dissenting.  



                                                                               

                    I  respectfully  disagree  with  today's  decision.    In  my  view  the  court  



                                            

overstates the United States Supreme Court's holding in Adoptive Couple v. Baby Girl  



                 1 

(Baby Girl)  and understates the nature of the underlying adoptive placement proceeding 

                                                                                                   



in this case, discussed at some length in Native Village of Tununak v. State, Department  

                   

of Health & Social Services, Office of Children's Services (Tununak I).2  



                    Baby Girl  arose from a state court private adoption  proceeding where:  

                                                                                                       



(1) the Indian father abandoned the child before birth; (2) the non-Indian mother found  

                                                                                        



an appropriate couple willing to adopt the child; and (3) the state's statutes provided that  

                                                                         



under  these  circumstances  the  father's  parental  rights  could  be  terminated  and  the  



                               3  

                                  But the father contested the termination of his parental rights and  

adoption completed.                           



the adoption, arguing that because the child was an Indian child under the Indian Child  

       



                                 4 

Welfare Act (ICWA),  he was entitled to ICWA's protections against the termination of 

                                                                                                               

his parental rights.5  



                    Because the  case involved only the termination of the father's parental  

                                         



rights, the focus of the Supreme Court's decision was on ICWA  1912(d) and (f),  

                                                                                          



neither of which is at issue in this case.  The Court first addressed  1912(f), noting that  

                                                                                                                    



it  



                                                                                                    

                    provides  that  "[n]o  termination  of  parental  rights  may  be  

                    ordered in such proceeding in the absence of a determination,  

                    supported by evidence beyond a reasonable doubt, . . . that  

                                                                                                    



          1          133 S. Ct. 2552 (2013).  



          2         303 P.3d 431 (Alaska 2013).  



          3          133 S. Ct. at 2558-59; Adoptive Couple v. Baby Girl                              (Adoptive Couple ),  



731 S.E.2d 550, 553-56, 561 (S.C. 2012), rev'd, 133 S. Ct. 2552.  



          4         25 U.S.C.  1901-1963 (2012).  



          5         Baby Girl , 133 S. Ct. at 2559; Adoptive Couple , 731 S.E.2d at 555-56.  



                                                              -30-                                                         6954
  


----------------------- Page 31-----------------------

                    the  continued custody of the child by the parent or Indian  

                    custodian is likely to result in serious emotional or physical  

                                                     [6] 

                    damage to the child."  



The Court held that  1912(f) was inapplicable because the father never had legal or  



                                             7 

physical custody of the child,  and noted that ICWA's protections were not applicable:    



"In   sum,  when,  as   here,  the   adoption   of  an   Indian   child   is   voluntarily  and  lawfully  



initiated by a non-Indian parent with sole custodial rights, the ICWA's primary goal of   



preventing the unwarranted removal of Indian children and the dissolution of Indian   

families is not implicated."8  



                    The Court next addressed  1912(d), noting it "provides that '[a]ny party'  

                                                                              



seeking to terminate parental rights to an Indian child under state law 'shall satisfy the  

                                                        



court that 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  

                                                                                               



                                     9  

proved unsuccessful.' "   The Court held that 1912(d) was inapplicable because the  

                                                                        



father had abandoned the child and there was no family unit to protect:  



                     [W]e  hold  that    1912(d)  applies  only  in  cases  where  an  

                                                                                        

                    Indian   family's   breakup   would   be   precipitated   by   the  

                    termination of the parent's rights.  The term breakup refers in  

                                                                                                     

                    this  context  to  the  discontinuance  of  a  relationship,  or  an  

                                                                                

                    ending  as  an  effective  entity.    But  when  an  Indian  parent  

                    abandons  an  Indian  child  prior  to  birth  and  that  child  has  

                                                                                           

                    never been in the Indian parent's legal or physical custody,  

                                                                                      

                    there is no relationship that would be discontinued - and no  

                    effective entity that would be ended - by the termination of  

                    the Indian parent's rights.  In such a situation, the breakup of  



          6         Baby Girl , 133 S. Ct. at 2560 (alteration and emphasis in original).  



          7         Id. at 2562.  



          8         Id. at 2561.  



          9         Id. at 2562 (alteration and emphasis in original).  



                                                               -31-                                                         6954
  


----------------------- Page 32-----------------------

                     the Indian family has long since occurred, and  1912(d) is  

                                          [10] 

                     inapplicable.  



                     The Court then addressed the state court's dicta - that even if the father's  



parental rights were properly terminated,  1915(a)'s adoptive placement preferences still  

would apply - with its own dicta:11  



                                                                      

                                In the decision below, the [state court] suggested that  

                     if    it   had      terminated          Biological          Father's        rights,       then  

                        1915(a)'s  preferences  for  the  adoptive  placement  of  an  

                     Indian child would have been applicable. . . .  



                                Section  1915(a)  provides  that  "[i]n  any  adoptive  

                     placement of an Indian child under State law, a preference  

                                                                                 

                      shall be given, in the absence of good cause to the contrary,  

                                                                       

                     to a placement with (1) a member  of the child's extended  

                                                                                

                      family;  (2)  other  members  of  the  Indian  child's  tribe;  or  

                      (3) other Indian families."  [But]  1915(a)'s preferences are  

                     inapplicable in cases where no alternative party has formally  

                                               

                      sought to adopt the child.  This is because there simply is no  

                                                                                          

                     "preference" to apply if no alternative party that is eligible to  

                                                                                            

                                                                                                   [12] 

                     be preferred under  1915(a) has come forward.  



                            

The Court noted that the father had been contesting the termination of his parental rights  



rather than seeking to adopt the child, that the paternal grandparents had not sought  



custody of the child, and that the tribe had not presented any tribal member seeking to  



                        13 

                                                                                                                

adopt the child.             Thus, no one with a  1915(a) preference had "come forward" to adopt  

the child.14  



           10        Id. (alterations, citations, and internal quotation marks omitted).  



           11        See id. at 2557 (stating  1912(f) and (d) rulings were holdings, but stating       



 1915(a) discussion was clarification to state court).  



           12        Id. at 2564 (citation omitted).  



           13        Id.  



           14        Id.  



                                                                  -32-                                                             6954
  


----------------------- Page 33-----------------------

                       From this, today the court interprets the Supreme Court as requiring that  



                                                                                                                           15  

                                                                                                                                 

"with respect to adoptive placements for an Indian child under state law,"                                                    a formal state  



court  adoption  petition,  or  a  formal  "proxy,"  must  be  filed  before  a  person  will  be  



                                                                                                                 16  

                                                                                                                        But  in  my  view:  

considered  for  adoptive  placement  preference  under    1915(a). 



                                                                                                                      

(1) the Supreme Court imposed no such requirement, which would impliedly preempt  



                                              17  

                                                                              

state adoption procedures;                        (2) as this case amply demonstrates, such a requirement  



                                                                                                   

elevates form over substance; and (3) such a requirement in the context of this case flies  



in the face of ICWA's express purpose.  



            15         Id. at 2558 (emphasis added).  



            16         It is undisputed that in this case the grandmother did not file a state court   



adoption petition.  The court notes the grandmother's testimony that she had petitioned                                

for placement and adoption, and then notes there is no such petition in the state court.   

But the grandmother was not asked whether she was referring to paperwork filed in state   

court or tribal court, or even whether it was paperwork given to the Office of Children's       

Services.  When the grandmother testified during the adoption placement hearing, the  

adoption petition question was a side-issue directed to whether she truly wanted to adopt.  

                                                                                                                                       

Because the record for this appeal was created well before a formal adoption petition  

requirement  became  an  issue,  the  record  before  us  does  not  reveal  to  what  the  

grandmother was referring in her testimony; it may be the "proxy" for a state court  

adoption petition that the court says is missing in this case.  



            17  

                                                                               

                       Cf. In  re  Brandon  M. ,  63  Cal.  Rptr.  2d  671,  677-78  (Cal.  App.  1997)  

                                                                                                                                

("Congress clearly intended that [ICWA] exist side-by-side with the child custody laws  

of the 50 states and necessarily understood that the courts of those states would and  

                                                          

should attempt to harmonize, not presume conflicts between, the two."); In re Adoption  

of A.B., 245 P.3d 711, 719 (Utah 2010) ("So long as [ICWA's] core protections are  

                

honored  and  the  intent  of  ICWA  is  preserved,  states  may  fashion  the  underlying  

procedural framework.").  



                                                                       -33-                                                                 6954
  


----------------------- Page 34-----------------------

                                                                                                        18 

                                                                   

                     The Supreme Court made no holding about  1915(a),                                    but observed that  



    

 1915(a) does not apply when no eligible person "has formally sought to adopt the  



                                                                                 

child . . . because there simply is no 'preference' to apply if no alternative party that is  



                                                                                                   19  

eligible  to  be  preferred  under    1915(a)  has  come  forward."                                     The  Court's  initial  



overview  of  its  decision  stated  it  was  clarifying  that    1915(a)  preferences  are  



inapplicable if no eligible candidates "have sought to adopt the child," without using the  



                           20  

word "formally."               The Court did not hold that whether an eligible candidate has come  



                                              

forward is a matter of federal law.  And it certainly did not hold as a matter of federal law  



                                                                                                                       

that  1915(a) can apply only when an eligible person has filed an adoption petition in  



                 21  

state court. 



           18        The court today asserts that I am mistaken on this point, concluding that the       



Supreme Court's decision about  1915(a) constitutes a "holding."  I prefer to rely on the   

Supreme Court's own statements about its decision:  



                     [W]e hold that 25 U.S.C.  1912(f) . . . does not apply when,           

                     as here, the relevant parent never had custody of the child.  

                     We further hold that  1912(d) . . . is inapplicable when, as  

                     here, the parent abandoned the Indian child before birth and  

                     never  had  custody  of  the  child.    Finally,  we  clarify  that  

                      1915(a) . . . does not bar a  non-Indian family . . . from  

                     adopting an Indian child when no other eligible candidates  

                     have sought to adopt the child.  



Baby  Girl ,  133  S.  Ct.  at  2557  (emphasis  added).    I  might  agree  with  the  court's  

conclusion had Baby Girl actually involved the application  of  1915(a)'s adoption  

                                                                                                 

placement preferences, even in part.  But it did not - the questions actually presented  

                                                                     

and decided were whether  1915(d) and (f) applied to the statutory parental rights  

termination in the state court.  I do not reject the notion that clarification of a holding can  

                                                                                                               

itself be a holding; that is not the case here.  



           19        Id. at 2564.  



          20         Id. at 2557.  



          21         Cf. id.  



                                                                -34-                                                          6954
  


----------------------- Page 35-----------------------

                                                                                         

                    Yet today the court asserts that state courts are constrained by the Supreme  



Court's decision and now can apply  1915(a) preferences only when competing state  



                                                           

court adoption petitions exist.  It is not at all self-evident that this is what the Supreme  



                   22 

                                                                           

Court meant,          and it is even less self-evident that the Supreme Court impliedly created  



                                                                                                              

a  monolithic  federal  rule  trumping  state  court  adoption  procedures.                                  The  Court's  



                    

clarification  certainly  leaves  room  for  states  to  determine  under  their  own  adoption  



procedures when an eligible candidate has come forward such that the preferences should  



                23  

                                                                                                           

be applied.          Baby Girl does not compel today's result; today's result comes directly  



          22        At   least   one   state   practice   guide   does  not  read  Baby  Girl  to  mean  an  



adoption petition must be filed.  In Nebraska, the Juvenile Court Law and Practice guide  

cautions practitioners that Baby Girl "eliminates the need for a party to demonstrate good  

cause to depart from the ICWA adoptive-placement preferences, where no one described  

                        

in those statutorily-designated preferences has stepped forward to formally assert an  

                                                                                                 

intent  to  acquire  custody  of,  or  to  adopt  the  child."    C 

                                                                                      HRISTINE  P.   COSTANTAKOS,  

J                                     

 UVENILE COURT LAW & PRACTICE  13:12 (2013) (emphasis added).  The practice guide  

merely directs that, "[f]or practitioners representing a parent of an Indian child who  

                               

wants assurance that his or her child will be placed with another family or tribal member  

                                

if  adoption  is  needed,  the  lesson  is  clear:    identify  early  on  any  family  members,  

                                                                                          

relatives, or tribal members who are willing and desirous of custody and take proper  

steps to formally convey their intentions to the court in this regard."   Id. (emphasis  

added).  This approach makes abundant sense to me.  



          23        Cf. Baby Girl, 133 S. Ct. at 2558 (noting that the  1915(a) preferences  



apply  "with  respect  to  adoptive  placements  for  an  Indian  child  under  state  law"  

(emphasis added)); In re Adoption of A.B. , 245 P.3d 711, 719 (Utah 2010) (noting "states  

may fashion the underlying procedural framework" for applying ICWA's substantive  

                                                                                    

standards); State ex rel. C.D., 200 P.3d 194, 209 (Utah App. 2008) (noting "there are no  

                                                                  

express statutory provisions declaring [the procedure for] compl[ying] with the ICWA's  

placement preferences").  



                    In fact, on remand of Baby Girl , the state court applied its own adoption law  

                                    

in  determining  whether  newly  filed  competing  adoption  petitions  in  the  case  were  

eligible for  1915(a) preferences; the court held the petitions were ineligible because the  

                                                                 

"litigation must have finality, and it is the role of this court to ensure 'the sanctity of the  

adoption process' under state law is 'jealously guarded.' " Adoptive Couple v. Baby Girl  

                                                                                       

                                                                                                            (continued...)  



                                                             -35-                                                        6954
  


----------------------- Page 36-----------------------

                                                                                                  

from this court and imposes a new state-law barrier to  1915(a)'s adoption placement  

preferences.24  



                                                                                             

                   It is self-evident that if no one eligible and suitable for a  1915(a) adoptive  



                                                                                                   

placement preference comes forward to adopt an Indian child, there can be no preferred  



                             25 

                                 This is not a particularly novel understanding; it was precisely the  

adoptive placement. 



          23(...continued)  



(Adoptive Couple II ), 746 S.E.2d 51, 53 (S.C. 2013) (emphasis added) (quoting Gardner  

                                                      

v. Baby Edward , 342 S.E.2d 601, 603 (S.C. 1986)).  



          24        Cf. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36-37 (1989)  

                                                                                          

(stating  placement  preferences  are  "[t]he  most  important  substantive  requirement  

imposed on state courts"); Josh L. v. State, Dep't of Health & Soc. Servs., Office of  

                   

Children's Servs., 276 P.3d 457, 465 (Alaska 2012) ("We recognize that the placement  

                                                                    

preferences under section 1915 are critical to ICWA's goal of promoting the stability and  

                                                    

security of Indian tribes and families."); In re Adoption of Sara J. , 123 P.3d 1017, 1024  

(Alaska 2005) (stating  1915(a) established federal policy that " 'where possible, an  

                                                                                                             

Indian child should remain in the Indian community' " (quoting H.R. Rep. No. 95-1386,  

                                                 

at 23, reprinted in 1978 U.S.C.C.A.N. 7530, 7546)).  



          25       As we explained in In re Adoption of Sara J. :  



                                                                  

                    [A]lthough it is correct that the word "preference" generally  

                    connotes  a  choice  between  two  options,  we  read  ICWA's  

                    structure and purpose to preclude choosing between preferred  

                    and non-preferred placements if the preferred placement is  

                    "suitable," as measured by the prevailing social and cultural  

                                                                                 

                    standards  of  the  Indian  community.    The  existence  of  a  

                    suitable preferred placement precludes any consideration of  

                    a  non-preferred  placement  unless  good  cause  exists,  for  

                                                                                  

                    example, because another preference has been expressed by  

                   the  child  or  the  child's  biological  parents,  or  because  the  

                    child has special needs that cannot be met by an otherwise- 

                                   

                    suitable preferred placement.  



123 P.3d at 1028 (emphasis in original) (citation omitted); see also Guidelines for State  

                                              

Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594 (Nov. 26, 1979)  

             

(stating one good cause factor for deviation from  1915(a) is "[t]he unavailability of  

                                                                                                           (continued...)  



                                                            -36-                                                       6954
  


----------------------- Page 37-----------------------

factual situation in Baby Girl , and the Supreme Court's language should not be read to  



                           

suggest anything more.  We described the eligibility-suitability determination process in  



Tununak I:  



                                                                   

                    [B]efore determining whether good cause exists to deviate  

                                                                                

                    from the placement preferences, a court must first inquire as  

                    to whether any suitable preferred placements exist.  



                              The "preferred placement" inquiry requires a court to  

                                                                                   

                    apply the statutory framework and follow the tiered order of  

                                                                                                    

                    preference mandated by ICWA, i.e., give preference first to  

                    a  member  of  the  child's  extended  family,  then  to  other  

                    members of the Indian child's tribe, and then to other Indian  

                                                       

                    families.  This does not end the inquiry, however, as the court  

                                                                     

                    must also assess the suitability of each prospective placement  

                                              

                    if a party alleges that a preferred placement is unsuitable.  In  

                    other  words,  the  court  must  determine  not  only  that  a  

                    placement is preferred, but also that the placement would be  

                                                                                

                                                                    [26] 

                    a suitable caretaker for the child.  



                                                                                                                

                    But after today's decision, it does not appear that a trial court has to make  



                                             

any inquiry about preferential adoptive placement unless an eligible person actually files  



                               27  

                                                                                            

an adoption petition.              And now, when multiple relatives in a village might consider  



          25(...continued)  



suitable families for placement after a diligent search has been completed for families  

meeting the preference criteria").  



          26        303 P.3d 431, 450 (Alaska 2013) (citations omitted).  



          27        Cf.  CINA  Rule  10.1(b)  (requiring  continuing  court  inquiry  regarding  



compliance with  1915(b)'s placement preferences prior to  termination of parental  

                                                                                              

rights).    The  CINA  rules  do  not  explicitly  require  such  an  inquiry  for  an  adoptive  

                                                    

placement.  

                    One can only wonder about the impact of today's decision on the State's  

duties  regarding    1915(a)'s  placement  preferences.    We  have  not  had  occasion  to  

           

consider the exact contours of the State's duty to search for eligible preferred adoptive  

                                                    

placements and assist such parties in coming forward.  The Bureau of Indian Affairs  

Guidelines  assume  that  a  "diligent  search"  will  be  made  for  a  preferred  adoptive  

                                                                                                            (continued...)  



                                                             -37-                                                        6954
  


----------------------- Page 38-----------------------

                                                                                        

adopting a child after a termination of parental rights, they cannot simply participate in  



                                                                                                       

adoptive placement proceedings in the child in need of aid case to determine who is  



                                                            

eligible  and  suitable,  but  rather  must  file  separate  and  competing  formal  adoption  



petitions.  



                                                                              

                    The tribe makes a persuasive argument that requiring a state court adoption  



petition to trigger  1915(a)'s adoptive placement preferences will have disastrous results  



for Alaska's rural Natives.  In many villages the court system has no presence and legal  



representation is nonexistent.  Village relatives who might seek to adopt have little way  



                               

of knowing when a child has been freed for adoption in an urban child in need of aid  



                                                                          

court proceeding, or whether a non-Indian foster family has filed an adoption petition.  



In my view  1915(a) placement preferences should, at the very least, apply when a  



person seeks adoptive placement in a child in need of aid proceeding.  I see no good  



                                                                                                         

reason for requiring a state court adoption petition to trigger ICWA's preferences, and  



                 

if seeking adoptive placement in a child in need of aid proceeding is not a "proxy" to  



such a petition, what is?  



          27(...continued)  



placement and that an unsuccessful search will be good cause to deviate from  1915(a)'s  

                                                                                 

mandated   preference   list.      Guidelines   for   State   Courts,   Indian   Child   Custody  

Proceedings, 44 Fed. Reg. at 67,594.  And  1915(e) requires the State to document its  

                                                                   

"efforts to comply with the order of preference specified in [ 1915]."  I have previously  

expressed  the  view  that  the  State  has  an  affirmative  duty  to  effectuate  placement  

                                       

preferences when possible.  Josh L. , 276 P.3d at 472 (Winfree, J., dissenting).  Today's  

                                                       

decision presents interesting questions about the State's duties.  Does the State have a  

duty to seek out and advise those eligible for a  1915(a) preference that a state court  

                                                                                                        

adoption petition must be filed before they will be considered?  And what if, as is the  

case here, the State simply does not want an eligible person under  1915(a) to have an  

                                                                                          

adoptive placement preference? Can the State stand behind its view that the grandmother  

                                                                                                   

was not "suitable" and it therefore had no duty to assist her with an adoption petition?  

Or did the State breach its duty to the grandmother and the Tribe?  The Tribe's concern  

that requiring an adoption petition for consideration under  1915(a) will lead to a lesser  

                      

effort by the State to effectuate  1915(a) is not unfounded.  



                                                             -38-                                                        6954
  


----------------------- Page 39-----------------------

                                               

                    In Tununak I we expressly stated that the adoptive placement proceeding  



                                                                                                       

in this case was to determine whether Dawn would be adopted by her grandmother in the  



                                                                     

village or by her foster parents in Anchorage: "even though the placement determination  



                       

took  place  in  the  context  of  a  CINA  proceeding,  it  is  clear  that  the  parties  were  



                                       

essentially contesting - and the superior court was essentially determining - adoptive  



                                   28  

                                         Our  decision's  very  substance  was  how  to  apply  Alaska  

placement  for  Dawn." 



                                                                                         29  

Adoption Rule 11, which we said applied to the proceeding.                                   And just six months later  



we  expressed  that  "it  was  clear  in  [Tununak  I]  that  the  issue  being  contested  at  the  



                                                                                                    30  

placement review hearing was the child's placement for adoption."                                       But now the court  



                                                                               

says the grandmother's effort to obtain preferential adoptive placement - in what we  



                                                                                

said was an adoption proceeding - was not an effort to "formally" adopt Dawn because  



                                                                  31  

she did not file formal adoption paperwork.                           This adherence to form over substance,  



especially in an ICWA context, is untenable.  



          28        303 P.3d at 443.  



          29        Id . at 433, 443-44.  



          30        Irma E. v. State, Dep't of Health & Soc. Servs. , 312 P.3d 850, 855 (Alaska  



2013) (citing Tununak I, 303 P.3d at 439-40) (noting that in C.L. v. P.C.S., 17 P.3d 769,  

                                                        

772  (Alaska  2001),  foster  care  placement  changed  into  adoptive  placement  when  

superior court terminated parents' parental rights and children's foster parents  filed  

                                                                                                               

petitions to adopt the children).  



          31        The  court  suggests  the  grandmother's  participation  in  the  adoptive  



placement proceeding did not rise to the level of "formally [seeking] to adopt" because,  

                                                                          

comparing her efforts to those of the biological father in Baby Girl , the father's "much  

                                                                                                       

higher  level  of  involvement"  in  the  adoption  proceedings  was  still  insufficient  to  

                          

constitute  a  formal  adoption  effort.    This  comparison  is  inapt:    the  Supreme  Court  

concluded the biological father "did not seek to adopt Baby Girl" because he instead  

sought to prevent termination of his parental rights, not because his efforts were not  

                                                                       

sufficiently formal.  Baby Girl , 133 S. Ct. 2552, 2559 (2013).  



                                                              -39-                                                         6954
  


----------------------- Page 40-----------------------

                                                     

                    Unlike in Baby Girl , where the Supreme Court took great pains showing  



otherwise  when  analyzing  the  two  ICWA  termination  provisions  at  issue,  ICWA's  



                                 

purpose  is  squarely  implicated  in  this  case.    As  the  court  notes,  Dawn's  biological  



                             

parents are Alaska Natives.  Rather than a termination of parental rights through a private  



                                                                                     

adoption arranged by a non-Indian parent after an Indian parent abandoned the child, this  



was  a  state-sponsored  parental  rights  termination  and  a  state-sponsored  adoptive  



                                                        32  

                                                            And here the tribe and maternal grandmother  

placement clearly subject to ICWA. 



                                                                                                   

actively sought adoptive placement with the grandmother so the child could live in the  



                                          33 

                                                                                

village with tribal members.                  This case compels the application of  1915(a)'s adoptive  



                                                                                                 

placement preferences, and if it does not, it is clear that ICWA is not working the way  

it should in Alaska.34  



                                                   

                    This case should be remanded to the superior court for a renewed adoption  



                                                                                   35  

placement hearing, as we contemplated in  Tununak I.                                   If Dawn's grandmother is a  



                                                         

suitable adoptive placement, then, in light of  1915(a) and absent good cause to deviate  



          32        Like Baby Girl , this case "concerns a 'child custody proceeding,' which  



ICWA defines to include proceedings that involve 'termination of parental rights' and  

                                                                                                                    

'adoptive placement.' "  Id. at 2557 n.1 (citing 25 U.S.C.  1903(1)).  

                                       



          33  

                                                            

                    Cf. id at 2565 (stating that ICWA "was enacted to help preserve the cultural  

                                                                                     

identity and heritage of Indian tribes"); see also In re Adoption of Sara J., 123 P.3d  

                                                                                                     

1017, 1024 (Alaska 2005) (stating  1915(a) established federal policy that " 'where  

possible, an Indian child should remain in the Indian community' " (quoting H.R. Rep.  

No. 95-1386, at 23, reprinted in 1978 U.S.C.C.A.N. 7530, 7546)).  



          34  

                                                                                                  

                    Time and time again we see CINA cases involving village children placed  

in urban foster homes while their parents work to meet the conditions for regaining  

custody; if the parents ultimately fail, the children rarely return to the village but rather  

                     

are adopted, often by the foster parents, and remain in urban centers.  This case is yet  

another example.  



          35        303 P.3d 431, 453 (Alaska 2013).  



                                                              -40-                                                         6954
  


----------------------- Page 41-----------------------

from  its  preferences,36  the  current  adoption  should   be  vacated  and  Dawn  should  be  



placed with her grandmother for eventual tribal or state court adoption.  



               I dissent.  



       36      Cf. id. at 451-53 (discussing factors relevant to good cause to deviate from  



 1915(a)'s placement preferences).  



                                                -41-                                          6954  

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