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Adoption of N.P.S. (2/18/94), 868 P 2d 934
NOTICE: This opinion is subject to formal 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,
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-5481
Adoption of N.P.S., )
A Minor. ) Superior Court No. 4BE-92-28
O P I N I O N
[No. 4057 - February 18, 1994]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Dale O. Curda, Judge.
Appearances: Eric Smith, Anchorage, for
Appellant Jenny Paul Sims. Mary Ellen
Ashton, Anchorage, for Appellee Xavier T.
Medley. No appearance by Toksook Bay
Traditional Council, pro se, Toksook Bay, or
J.P. Tangen, U.S. Department of the Interior,
Anchorage, for Guardian Ad Litem Jennifer
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice pro tem.*
N.P.S. was born to A.S. on March 9, 1981. The natural
father of N.P.S. is unknown. A.S. died on December 2, 1990.
Jenny Sims and Xavier Medley both sought to adopt N.P.S. We
affirm the superior court's decision to grant the adoption
petition of Xavier Medley.
Jenny Sims, the mother of A.S., is a 63-year-old Yup'ik
widow who has lived in Toksook Bay all her life. Xavier Medley
is a 39-year-old caucasian who resides in Wasilla. He met A.S.
and N.P.S. in 1983, and first resided with them in Anchorage. In
1983, A.S. gave birth to a second son, Simon George Sims, whom
Jenny culturally adopted as an infant. In 1989 A.S. bought the
property in Wasilla where Xavier still resides.
After A.S.'s death in 1990, N.P.S. continued to live in
A.S.'s house with Xavier. A.S.'s sister Martina lived in another
house on the same property, and Xavier and Martina shared
N.P.S.'s care. N.P.S. visited Toksook Bay several times in 1991.
On January 17, 1992, Martina took N.P.S. to visit Toksook Bay but
never brought him back to Wasilla. While residing in Toksook
Bay, N.P.S. shared a room in Jenny's house with his brother
On June 15, 1992, A.S.'s holographic will dated October
11, 1990 was admitted to probate in the superior court at Palmer.
In re [A.S.], 3PA-91-55 P/A, (Alaska Super. Ct., June 15, 1992).
The will expresses A.S.'s desire for N.P.S. to have his own home,
and for Xavier Medley to care for him if something should happen
to her. It also says she did not want the rest of her family to
Jenny Sims and Xavier Medley separately filed petitions
in the Bethel Superior Court to adopt N.P.S. Superior Court
Judge Curda held an evidentiary hearing on August 21, 1992 on the
consolidated petitions. Several witnesses testified, and Judge
Curda interviewed N.P.S. on the record alone in chambers.
Although some of his responses were transcribed as "inaudible,"
N.P.S. indicated that he would prefer to live with Xavier,
despite a desire to be with his brother.
Thereafter, the superior court appointed a guardian ad
litem (GAL) to investigate the facts further. Her report found
that both Jenny and Xavier "sincerely desire to meet [N.P.S.]'s
needs, and are capable of doing so." The GAL also noted that
N.P.S. had been classified as learning disabled, and stated her
belief that he should be tested for attention deficit disorder.
According to the GAL, "his cultural needs could best be
met in the village . . . [but] his emotional needs may not be
able to be met there." In light of that, and the evidence "to
suggest that [N.P.S.]'s mother had a preference as to who, other
than herself, should raise him,"the GAL recommended that (1)
Xavier's petition for adoption of N.P.S. be granted, (2) regular
contact between N.P.S. and his family in Toksook Bay be
maintained, and (3) N.P.S. be assessed for attention deficit
After conducting another hearing, the superior court
issued an order adopting the recommendations of the GAL. The
court ordered that N.P.S. be returned to Xavier Medley by
December 28, 1992. The next day, the Toksook Bay Traditional
Council (the Council) filed a letter, signed by N.P.S., in which
he stated that he wanted to remain in Toksook. He wrote a second
letter, however, in which he stated that he wanted to live with
both Jenny Sims and Xavier Medley. On December 17, the superior
court received letters from the Council and the Toksook Bay
Family Service Specialist that stated that N.P.S. did not wish to
leave, and that the Council would not force him to leave.
The superior court then asked the GAL to meet with
N.P.S. again, to "determine what his placement preference was,
and to help facilitate [N.P.S]'s transition." Although the GAL
spoke with a number of people involved in the dispute, and with
N.P.S. on the telephone once, the GAL was otherwise not allowed
to contact N.P.S. The Council informed the GAL that it would not
allow N.P.S. to leave Toksook Bay. After the GAL filed a report
containing this information, the superior court issued a writ of
assistance ordering the return of N.P.S. to Xavier. A state
trooper attempted to carry out the order on December 31, 1992,
but he encountered some difficulty, and was subsequently
authorized by the superior court not to enforce the order.
After several motions by Jenny Sims and the Council
urging the superior court to modify its adoption decision, and
discussion of the possibility of conducting another hearing in
Bethel, the superior court ordered state troopers to transfer
N.P.S. to Xavier Medley's custody immediately, and the troopers
carried out the order.
Jenny Sims and the Council now bring this appeal. They
challenge the superior court's determination that allowing Xavier
Medley to adopt N.P.S. is consistent with the federal Indian
Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901-1963 (1988),
and the superior court's conclusions "that the child consented to
live with [Xavier], and that placement of the child with [Xavier]
was otherwise consistent with Adoption Rule 9 and AS 25.23.040."
I. STANDARD OF REVIEW
ICWA governs custody proceedings involving Indian
children.1 A party asking a court to deviate from ICWA's
preferences for placement bears the burden of proving, by a
preponderance of the evidence, good cause. In re Adoption
of F.H., 851 P.2d 1361, 1363 (Alaska 1993). We will
overturn the superior court's determination regarding
adoption placement preference only if the record as a whole
shows an abuse of discretion or if the lower court's
controlling factual findings are clearly erroneous. Id. An
abuse of discretion occurs when the superior court gives
improper weight to a factor or considers an improper factor.
Id. II. DISPUTED FACTS
[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.
25 U.S.C. 1915(a) (1988). ICWA does not define "good cause."
F.H., 851 P.2d at 1364. It does, however, state that "[w]here
appropriate, the preference of the Indian child or parent should
be considered." 25 U.S.C. 1915(c). The Bureau of Indian
Affairs has issued guidelines that offer examples of the kinds of
factors that can provide good cause to deviate:
(i) The request of the biological parents or
the child when the child is of sufficient
(ii) The extraordinary physical or emotional
needs of the child as established by
testimony of a qualified expert witness.
(iii) The unavailability of suitable families
for placement after a diligent search has
been completed for families meeting the
Guidelines for State Courts; Indian Child Custody Proceedings, 44
Fed. Reg. 67,594 F.3 (1979). The guidelines assist but do not
bind this court. F.H., 851 P.2d at 1364.
And the list is not exhaustive. Although ICWA and the
guidelines draw attention to important considerations, the best
interests of the child remain paramount. See F.H., 851 P.2d at
1363-64; In re Interest of Bird Head, 331 N.W.2d 785, 791 (Neb.
1983); cf. AS 25.23.005 (state adoption statutes must be
liberally construed to promote the best interests of the child).
The superior court found good cause based on a number of factors,
including N.P.S.'s preference, A.S.'s preference, and N.P.S.'s
A. The Preference of N.P.S.
The superior court found that "[N.P.S.]'s preference is
to live with Xavier." N.P.S. indicated such a preference in his
meeting alone with the superior court judge in chambers, although
he also expressed a wish to stay with his brother, who lived with
Jenny. The GAL also reported that N.P.S. would like to live with
Xavier, because he is "'the only father I ever knew.'"2
Jenny makes several arguments that question the
significance of the statements. First, she maintains that N.P.S.
expressed a preference for Xavier to the superior court judge in
chambers only because the judge's questions were leading. The
record does not bear this characterization out. The question the
judge asked was "if you could have the choice of where you wanted
to be, to live, where would you live?"
Jenny suggests that "N.P.S. apparently feels compelled
to give people the answer he believes they want to hear." This
theory is plausible, but equally plausible is the possibility
that N.P.S. is afraid to tell his grandmother Jenny Sims that he
would rather live with Xavier Medley, and Jenny points to no
evidence that makes her theory more persuasive than others. The
GAL reported that N.P.S. is afraid of his grandmother, but did
not indicate that N.P.S. fears Xavier. The superior court was in
the best position to evaluate this issue.
Finally, Jenny contends that even if the superior
court's determination was reasonable at the time it was made,
subsequent events cast doubt on its correctness. N.P.S. wrote
two letters: one stated a desire to stay in Toksook, and one
stated, "I can only live with one and I wont [sic] to live with
both ove [sic] them."These conflicting letters do not render the
superior court's determination as to N.P.S.'s preference clearly
B. Maternal Preference
Jenny disputes the superior court's finding that A.S.
wanted Xavier to raise N.P.S. The only evidence in support of
her contention is the affidavit of Pauline Asuluk, the Family
Services Specialist for Toksook Bay, which contains the statement
that Jenny Sims told the specialist that Jenny and A.S. had made
an agreement that if anything happened to either of them, the
other would take care of A.S.'s two boys. There is no other
record evidence of this agreement.
Assuming this agreement between Jenny Sims and A.S.
existed, a conclusion that A.S. subsequently changed her mind
would not be clearly erroneous in light of A.S.'s holographic
will. In her will, the most recent evidence of her preference,
she stated in no uncertain terms that she wanted Xavier Medley to
have N.P.S. Twice in her holographic will, A.S. stated that she
did not want her family to get close to N.P.S., and warned "if
they try [to] take Over--Don't Let Them." Moreover, friends of
A.S. informed the GAL that A.S. had told them she wanted Xavier
to have custody of N.P.S.3
C. Cultural Needs
The superior court found that N.P.S.'s cultural needs
would be better served by being with Jenny Sims in Toksook Bay,
but that they would be met adequately by a one-month trip every
year to Toksook Bay, and visits to an uncle who is currently
imprisoned in Palmer. The GAL wrote that exposure to N.P.S.'s
cultural heritage "can be accomplished minimally in the Wasilla
area. Regular contact with [N.P.S.'s] extended family and time
spent in the village would give [N.P.S.] an understanding of the
lifestyle of the Yup'ik culture as well as promoting a positive
image of himself as an Alaskan Native."
Jenny Sims offers no facts that contradict the court's
conclusion regarding Xavier's ability to meet N.P.S.'s cultural
needs. Instead, Jenny relies on the court's statement that
"[p]lacement with Jenny is more likely to foster cultural values
and a positive self image in [N.P.S.] as an Eskimo." Jenny
asserts a contradiction between the court's finding that she
would be better able than Xavier to meet N.P.S.'s cultural needs
and its decision that Xavier's petition for adoption should be
granted over her own.
What is called into question by this argument is not so
much whether the court erred in finding Xavier to be at least
minimally capable of providing for N.P.S.'s cultural needs, but
rather whether the court gave sufficient weight in its overall
decision to Jenny's concededly superior ability to provide for
N.P.S.'s cultural needs. We address this issue below, in the
section of our opinion discussing the weight attached by the
trial court to various factors affecting N.P.S.'s best interests.
To the extent Jenny challenges the trial court's decision that
Xavier is minimally capable of proving for N.P.S.'s cultural
needs, we find no clear error.
D. Emotional Needs
The superior court found that adoption by Xavier Medley
would better meet N.P.S.'s emotional needs, noting that N.P.S.
had lived with Xavier for most of his life. Although the GAL
found that both Xavier and Jenny "could appropriately care for
[N.P.S.],"she expressed concerns about the effect on N.P.S. of
being moved so abruptly from Wasilla to Toksook.
Jenny responds that "an equally strong bond developed
between N.P.S. and Jenny and between N.P.S. and his brother
during the time that N.P.S. lived in Toksook Bay." Although the
record contains considerable evidence that N.P.S. cared for his
grandmother and brother, the superior court's finding that
adoption by Xavier would better meet N.P.S.'s emotional needs is
not clearly erroneous.
E. Educational Needs
The superior court noted that N.P.S. appears to have
some sort of learning disability, possibly attention deficit
disorder. The superior court's only finding on this issue is
that "[the GAL's recommendation] was that any treatment would be
easier in Wasilla; this court agrees." Jenny does not directly
contest this finding. Even if treatment would be available in
Toksook Bay, there is no evidence that it would be as easily
available as in the Wasilla area.
III. THE WEIGHT ATTACHED TO THE VARIOUS FACTORS
In determining which adoption would serve the best
interests of N.P.S., the superior court considered a number of
A. Maternal Preference
Even assuming that A.S. wanted Xavier to have custody
of N.P.S., Jenny argues, the superior court did not weigh that
fact appropriately: "Mr. Medley is required to prove, by a
preponderance of the evidence, that the preference of A.S. is
sufficient to override the statutory preference for placement in
a Native home." The superior court judge, according to Jenny,
"did not apply this standard--he merely held that it was in fact
appropriate to consider A.S.'s desires."
Review of the record persuades us that the superior
court gave appropriate weight to A.S.'s preference. Whether one
factor outweighs another is committed to the sound discretion of
the trial court. Although the superior court apparently gave
A.S.'s preference substantial weight, it did not abuse its
discretion in doing so.
B. Cultural Needs
Jenny's arguments concerning the weight attached to
cultural needs are unpersuasive. She argues that "to find good
cause [to deviate from the preferences mandated by ICWA] in
visitation by Native relatives and a one-month trip to the
village would make a mockery of the preference, for such terms
could be used at any time to deny a Native relative his or her
preferential right to adopt a Native child." The superior court
found that N.P.S. could maintain contact with his culture even if
he lived with Xavier, not that this fact constituted good cause
to deviate from the adoptive preferences provided for in ICWA.
On the other hand, the superior court concluded that other
factors did constitute good cause to deviate, notwithstanding the
cultural advantages of N.P.S.'s living with Jenny Sims in Toksook
What Jenny Sims is really arguing is not that any
finding regarding N.P.S.'s cultural needs was "clearly
erroneous," but that the court abused its discretion "in
determining that there was good cause notwithstanding its own
finding"that N.P.S. would learn more about his culture living in
Toksook Bay with his grandmother. Given the advantages of living
with Xavier Medley discussed above, we conclude that the superior
court did not abuse its discretion in concluding that good cause
had been shown to deviate from the ICWA preferences in adoption
C. Emotional Needs
"The real question,"according to Jenny, "is not which
[emotional] bond is more 'important,' but whether a preponderance
of the evidence demonstrates that the bond between Mr. Medley and
N.P.S. was so much more significant to N.P.S.'s emotional well-
being than that between N.P.S. and Jenny and his brother that
there is good cause to override the ICWA preference." The
"preponderance of the evidence"language is inappropriate here.
It is a distortion to treat the question of N.P.S.'s emotional
needs as if it were the only factor in Xavier's favor. In view
of the total picture, we find no abuse of discretion.
The superior court's application of ICWA to this case
was entirely proper. None of its factual determinations is
clearly erroneous, and it did not abuse its discretion when
weighing the various factors, most of which support granting
Xavier's petition. Xavier Medley has been a de facto father to
N.P.S. for almost all of N.P.S.'s life, and that weighs heavily
in favor of allowing Xavier to become N.P.S.'s de jure father.
We are satisfied that the superior court did not err when it
found that living with Xavier would be in the best interests of
Jenny's final argument is that the superior court
improperly waived the written consent of N.P.S. to his adoption
by Xavier Medley. After finding that "[N.P.S.]'s choice is
clear,"the superior court stated that in N.P.S.'s best interests
it "could dispense with his consent to be adopted." This issue
grows out of several statutory provisions and rules. Alaska
Statute 25.23.040(5) and Adoption Rule 9(c)4 both require the
written consent of a minor who is at least ten years old before
that minor may be adopted. Rule 9(c) requires that the form be
signed in the presence of the court. Both allow the court to
waive the requirement of written consent in the best interests of
Jenny contends that waiver is not allowed in the case
of Native children, citing Adoption Rule 9(b).5 The purpose of
Rule 9(b) is to insure that when written consent is required by
some statutory provision (probably AS 25.23.040), such consent
must occur in court. This is to afford the court an opportunity
to ascertain whether the parties have taken ICWA into account.
Here, the record reflects that ICWA has been accorded painstaking
consideration, and so the purpose of Rule 9(b) has been
satisfied. Because the superior court properly waived consent in
this case, the requirement that consent occur inside of court
(rather than elsewhere) is irrelevant.
The superior court considered the relevant factors in
this case thoroughly and fairly. Its factual determinations were
not clearly erroneous, and it does not appear to have attached
undue weight to any one factor. Consent was properly waived. We
therefore AFFIRM the superior court's grant of Xavier Medley's
petition to adopt N.P.S.
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 The parties do not dispute that N.P.S. is an "Indian
child"within the meaning of ICWA.
2 The evidence is not consistent, however. Jenny's brief
asserts that "N.P.S. clearly told the Council and his grandmother
that he wanted to live with Jenny in Toksook Bay." N.P.S. has
expressed conflicting preferences, but there is enough evidence
that he wanted to live with Xavier that the superior court's
ruling was not clearly erroneous.
3 Apparently conceding the strength of A.S.'s preference
expressed in her will, Jenny speculates that A.S.'s motivation
was the "difficult relationship"between mother and daughter.
Even if true, the history behind a preference is less important
under ICWA and the guidelines than the preference itself.
4 Adoption Rule 9(c) states in part:
Consent By a Minor. (1) A consent by a minor
child over the age of 10 to the child's
adoption must be signed in writing and must
be in the presence of the court unless the
court in the best interest of the minor
dispenses with the minor's consent or the
requirement that the child consent in court.
5 That rule provides in part:
Consent or Relinquishment Involving an Indian
Child. A consent or relinquishment involving
an Indian child must be signed in a hearing
in the presence of a judge unless the consent
is by an agency. In addition to the
explanations required by paragraph (d), the
court shall inquire as to what efforts have
been made to comply with the placement
preferences of 25 U.S.C. Section 1915(a).