Adoption of N.P.S.

868 P.2d 934, 1994 Alas. LEXIS 15, 1994 WL 47147
CourtAlaska Supreme Court
DecidedFebruary 18, 1994
DocketS-5481
StatusPublished
Cited by17 cases

This text of 868 P.2d 934 (Adoption of N.P.S.) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of N.P.S., 868 P.2d 934, 1994 Alas. LEXIS 15, 1994 WL 47147 (Ala. 1994).

Opinion

OPINION

RABINOWITZ, Justice.

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 Tok-sook 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 Tok-sook Bay several times in 1991. On January 17, 1992, Martina took N.P.S. to visit Tok-sook 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 Simon.

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 [AS.], 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 “take over.”

Jenny Sims and Xavier Medley separately filed petitions in the Bethel Superior Court to adopt N.P.S. Superior Court Judge Cur-da 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.] 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.SJs 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 disorder.

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 *936 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

Under ICWA,

[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 age.
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.

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Bluebook (online)
868 P.2d 934, 1994 Alas. LEXIS 15, 1994 WL 47147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-nps-alaska-1994.