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In the Matter of the Adoption of F.H. (5/14/93), 851 P 2d 1361
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
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THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Adoption of ) Supreme Court File
F.H., a minor child. ) No. S-5044
) Superior Court File No.
O P I N I O N
[No. 3956 - May 14, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Elaine M. Andrews, Judge.
Brian C. Shortell, Judge.
Appearances: Don Clocksin, Wagstaff,
Pope & Clocksin, Anchorage, for Appellant
Native Village of Noatak. Richard P.
Sullivan, Jr., Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for State of Alaska,
Division of Family and Youth Services. Mary
Ellen Ashton, Ashton & Dewey, Anchorage, for
Appellees Nancy Hartley and Carol Hartley.
R. Scott Taylor, Rice, Volland and Gleason,
P.C., Anchorage, for Appellee E.P.D.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
The Native Village of Noatak (Noatak) and the State of
Alaska, Division of Family and Youth Services (DFYS),
opposed the adoption of F.H., an Indian child, by the
Hartleys, a non-Indian couple. Superior Court Judge
Elaine M. Andrews determined that F.H.'s case presented
good cause to deviate from the Indian Child Welfare Act
(ICWA) adoptive placement preferences. Noatak and DFYS
appeal this determination.
I. FACTUAL AND PROCEDURAL BACKGROUND
F.H. was born on February 24, 1990. Her mother,
E.P.D., had a blood alcohol level of about .275 at the
time of birth. F.H.'s biological father is unknown.
F.H. is an Indian child as defined by ICWA. 25 U.S.C.
1903. She and her mother are members of the Native
Village of Noatak.
DFYS took custody of F.H. shortly after her birth,
based on her mother's homelessness and high blood
alcohol level at the time of birth. DFYS filed a Child
in Need of Aid (CINA) petition (3AN-90-159) and
notified Noatak. DFYS filed a petition to terminate
parental rights in August 1990.1
F.H. has experienced a number of medical problems,
symptomatic of Fetal Alcohol Syndrome (FAS) or Fetal
Alcohol Effects (FAE). The Alaska Area Native Health
Service has determined that F.H. does not have FAS, but
is at high risk for FAE, which is not as severe. Her
prenatal exposure to alcohol has placed her at risk for
developmental delay and learning and behavioral
F.H. lived in four different foster homes before she
was adopted by the Hartleys in March 1992. The
Hartleys were her third foster placement. F.H. lived
with them from June 1990 until June 1991, when Carol
Hartley was transferred to Washington State. F.H. now
lives with the Hartleys in Kennewick, Washington.
While F.H. was in foster homes, E.P.D. expressed an
interest in relinquishing her custody to at least five
different people, including her cousin, Mary Penn, and
the Hartleys. As E.P.D.'s cousin, Mary Penn is a first
place adoptive placement preference under ICWA. 25
U.S.C. 1915(a). Based upon a favorable home study,
DFYS concluded that F.H. should be placed with Mary
Penn, though F.H. never lived with her. Trial on the
petition to terminate parental rights was set for
September 18, 1991.
On September 16, E.P.D. executed three documents before
Probate Master Lucinda McBurney relinquishing her
parental rights to the Hartleys. Her relinquishment
was conditioned upon the Hartleys' adoption of F.H.,
F.H.'s retention of inheritance rights from E.P.D., and
E.P.D.'s and her family's retention of contact and
visitation rights with F.H. The next day, the Hartleys
filed a Petition for Adoption. Since signing the
papers, E.P.D. has consistently supported an adoption
by the Hartleys.
E.P.D. has not been to Noatak for several years and
plans never to return. She abuses alcohol. Her father
died of alcoholism. Her mother was murdered by her
brother. None of her siblings were raised in Noatak.
F.H. has never been to Noatak. E.P.D. believes she
could visit F.H. more easily in Kennewick, Washington,
than in Noatak.
An early interventionist, who worked with F.H. in the
Hartleys' home twice a month for almost one year,
believes F.H. made a lot of progress during that period
and that F.H.'s bond with Nancy Hartley is the best
F.H. will ever have. Both guardians ad litem assigned
to F.H. testified that they believe F.H.'s best
interest is to be placed with the Hartleys. The DFYS
social worker assigned to F.H.'s case until June 1991
believed that F.H. should have stayed with the
After several hearings at which Noatak,2 E.P.D., the
Hartleys, DFYS, and F.H. were represented, Probate
Master John E. Duggan recommended that the superior
court find good cause to deviate from ICWA preferences.
The primary basis for his recommendation was the
"strong and consistent preference of the biological
mother for this open adoption by the petitioners and
against placement of her daughter in the village of
Noatak." Secondary considerations included 1) the bond
between Nancy Hartley and F.H., 2) the uncertainty of
F.H.'s future if the adoption were not allowed, and 3)
the "open adoption"petition allowing E.P.D. access to
F.H. and possibly giving F.H. exposure to her Native
Judge Andrews accepted Master Duggan's recommendation.
Judge Andrews stressed the importance of the mother's
preference, which was based in part on the adoption of
F.H. being "open." E.P.D. retained contact and
visitation rights, while F.H. retained her inheritance
rights from E.P.D. In contrast, "[t]here is no written
evidence suggesting that the proposed Penn adoption
would be `open.'"
In support of its Motion for Reconsideration, Noatak
submitted the affidavit of Mary Penn and an excerpt
from a study of Northwest Alaskan Family traditions to
show that E.P.D. and others in F.H.'s blood family
would have access to F.H. if she lived with Mary Penn.
Judge Andrews denied the motion.
Superior Court Judge Brian C. Shortell conducted a
hearing on the remaining issues. He granted the Decree
of Adoption on March 5, 1992. This appeal followed.
A. STANDARD OF REVIEW
The question on appeal is whether the superior court
erred in concluding that good cause existed to deviate
from the adoptive placement preferences mandated under
ICWA (25 U.S.C. 1901-1963). Under state law, the
Hartleys have the burden of proof by a preponderance of
the evidence that there is good cause for allowing a
non-preferred placement. Alaska Adoption Rule 11(f).
A good cause determination is within the superior
court's discretion. See In re Adoption of M., 832 P.2d
518, 522-23 (Wash. App. 1992); In re Appeal in Coconino
County Juvenile Action No. J-10175, 736 P.2d 829, 832-
33 (Ariz. App. 1987). We will reverse an adoptive
placement preference determination only if convinced
that the record as a whole reveals an abuse of
discretion or if controlling factual findings are
clearly erroneous. Farrell v. Farrell, 819 P.2d 896,
898 (Alaska 1991). Abuse of discretion is established
if the superior court considered improper factors or
improperly weighted certain factors in making its
determination. See id. Whether there is good cause to
deviate in a particular case depends on many factors
including, but not necessarily limited to, the best
interests of the child, the wishes of the biological
parents, the suitability of persons preferred for
placement and the child's ties to the tribe. In re
Adoption of M., 832 P.2d at 522.
B. GOOD CAUSE DETERMINATION
ICWA was enacted to discourage the separation of Indian
children from their families and tribes through
adoption or foster care placement to non-Indian homes.
25 U.S.C. 1901; Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 36 (1989). Congress found
that no resource "is more vital to the continued
existence and integrity of Indian tribes than their
children." 25 U.S.C. 1901(3); Holyfield, 490 U.S. at
38. In order "to protect the best interests of Indian
children and to promote the stability and security of
Indian tribes and families," Congress established
minimum federal standards for the placement of Indian
children in foster or adoptive homes. 25 U.S.C.
ICWA provides preferences in placing Indian children
In any adoptive placement of an Indian
child under State law, a preference shall be
given, in the absence of good cause to the
contrary, to a placement with (1) a member of
the child's extended family; (2) other
members of the Indian child's tribe; or (3)
other Indian families.
25 U.S.C. 1915(a). ICWA does not define "good cause."3
Master Duggan found good cause to deviate from ICWA's
preferences. The factual bases upon which Master
Duggan made his determination were E.P.D.'s preference
for the Hartleys, the bond between Nancy Hartley and
F.H., the uncertainty of F.H.'s future if the adoption
were not allowed, and the "openness"of the Hartleys'
1. Maternal Preference.
At a hearing in which the terms and consequences were
fully explained to her, E.P.D. signed three documents
relinquishing her parental rights on condition that the
Hartleys adopt F.H. Four months later, at a hearing in
front of Master Duggan, E.P.D. testified that she
wanted F.H. to be adopted by the Hartleys.
Noatak argues that under Holyfield, parental preference
cannot defeat the interests of the tribe. In
Holyfield, the United States Supreme Court held that
parents can not defeat tribal jurisdiction by giving
birth off a reservation. Id. at 53. Since
jurisdiction is not an issue in this case, Holyfield is
ICWA states, with regard to the order of the
preferences, "[w]here appropriate, the preference of
the Indian child or parent shall be considered." 25
U.S.C. 1915(c). The Bureau of Indian Affairs
publication "Guidelines for State Courts; Indian Child
Custody Proceedings"(Guidelines) provides that good
cause not to follow the order of preference may be
based on parental preference. 44 Fed. Reg. 67584,
F.3 (1979). Although the Guidelines do not have
binding effect, this court has looked to them for
guidance. In re L.A.M., 727 P.2d 1057, 1060 n.6
(Alaska 1986). ICWA and the Guidelines indicate that
courts may consider parental preference when
determining whether there is good cause to deviate from
ICWA preferences. E.P.D.'s preference for the Hartleys
was an appropriate factor for the superior court to
consider in its finding of good cause.
Noatak argues that even if a mother's preference
constitutes good cause to deviate from ICWA placement
preferences, E.P.D.'s relinquishment should be given
little weight since it was neither reasonable nor
knowledgeable.4 E.P.D. had offered to relinquish F.H.
to several different people, including Mary Penn. At
least once she adamantly opposed placement with the
Hartleys. She admitted that when she signed the
relinquishment to the Hartleys she was so mixed up she
would have signed anything. Noatak argues that
E.P.D.'s decision was based in part on her belief that
F.H. had serious health problems.
However, Master McBurney certified that E.P.D.
understood and voluntarily signed the documents. Since
signing them, E.P.D. has consistently supported an
adoption by the Hartleys. E.P.D. gave several reasons
she would not want to return to Noatak or have her
daughter raised there. The finding that E.P.D.
preferred that the Hartleys adopt F.H. was not clearly
2. Bond between Nancy Hartley and F.H.
Both guardians ad litem testified to a strong bond
between Nancy Hartley and F.H. An early
interventionist stated that F.H.'s bond with Nancy
Hartley is the best she will ever have. Bonding
between Nancy Hartley and F.H. was a proper factor for
the superior court to consider. The finding of bonding
was not clearly erroneous.
3. F.H.'s Need for Permanent Placement.
Master Duggan recognized that F.H.'s situation would be
uncertain if the Hartleys' adoption petition were
dismissed and E.P.D. withdrew her conditional
relinquishment. E.P.D.'s relinquishment was
conditional on the Hartleys' adoption of F.H. If the
Hartleys' adoption petition were dismissed, F.H. would
have continued to be in DFYS' temporary custody. DFYS'
petition to terminate permanently E.P.D.'s parental
rights had not been granted. No other petition to
adopt F.H. had been filed. Although DFYS expressed an
intent to place F.H. with Mary Penn immediately,
further legal proceedings would have been necessary for
a permanent adoption by Mary Penn. The superior court
properly considered F.H.'s situation if the adoption
petition were dismissed. It was not clearly erroneous
for the superior court to find that F.H.'s uncertain
situation would have continued if the Hartleys were not
allowed to adopt F.H.
4. Openness of Hartley Adoption.
Master Duggan and Judge Andrews found that an adoption
by the Hartleys would be open, since E.P.D. and her
family would have access to F.H. Noatak argues that an
adoption by Mary Penn would ensure access to F.H. by
E.P.D. and other relatives. E.P.D. testified that she
could visit F.H. more easily in Kennewick, Washington
than in Noatak. The finding that an adoption by the
Hartleys would be open was not clearly erroneous and
was a proper factor for the superior court to consider.
Given the possibility of a placement with a relative in
Noatak, this case presented a close question to the
superior court. However, the factual findings which
supported deviation from ICWA preferences are not
clearly erroneous. Further, they address factors which
are proper to consider in determining whether good
cause exists to deviate from the preferences. The
record as a whole reveals no abuse of discretion.
Therefore, the order approving Master Duggan's finding
of good cause is AFFIRMED and the decision to grant the
Hartleys' Petition for Adoption is AFFIRMED.
1. The CINA proceeding was briefly consolidated with the
adoption proceeding. That consolidation was vacated
and the adoption trial was held first. The CINA
petition was dismissed when the Hartleys' petition for
adoption was granted.
2. The Hartleys assert that Noatak's opposition to their
adoption is barred by the doctrine of laches. Noatak
was sent notices of F.H.'s CINA case in March and
August 1990. In October 1991 Noatak received notice of
the Hartleys' adoption petition and only then moved to
intervene in both the adoption and the CINA cases.
Alaska Adoption Rule 12(a) states that "[i]n any
adoption or relinquishment proceeding involving an
Indian child, the Indian child's tribe and an Indian
custodian, if any, may intervene as a matter of right
at any stage in the proceeding." (Emphasis added). In
light of this rule, it is doubtful laches may be raised
as a defense to intervention "at any stage in the
proceeding." In view of our decision on the merits, we
need not address laches.
3. Noatak's argument that the three ICWA preferential
placements must be rejected before consideration of an
alternative ignores the "good cause"exception.
4. DFYS argues that E.P.D.'s decision to relinquish to the
Hartleys should be set aside. A party generally "may
not present new issues or advance new theories to
secure a reversal of a lower court decision." Zeman v.
Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska
1985). Since this issue was first raised on appeal, we
will not reach it.