D.J. v. P.C.

36 P.3d 663

• Court: Alaska Supreme Court
• Decided: December 5, 2001
• Docket: No. S-9470
• Status: Published

Opinions

OPINION

MATTHEWS, Justice.

I. INTRODUCTION

D.J., currently serving a twenty-year sentence, appeals from a superior court order terminating his parental rights to his son J. D.J. argues that the superior court erred in granting summary judgment to J.'s grandmother, P.C., who petitioned to adopt J. D.J. alleges three errors by the superior court: first, that the court erred by granting summary judgment on the question of whether he was unreasonably withholding his consent to J.'s adoption; second, that the court erred in determining that the Indian Child Welfare Act¹ (ICWA) did not apply to the termination of his parental rights; and third, that the court erred by finding that the termination requirements of ICWA were satisfied. Because the superior court failed to apply ICWA correctly in terminating D.J.'s parental rights, we vacate the termination and remand for proceedings consistent with ICWA.

II. FACTS AND PROCEEDINGS

J. was born May 16, 1992, to F.C. and D.J. J. is an Indian child as defined by the Indian Child Welfare Act of 1978.² His mother is a member of the Devil's Lake or Spirit Lake Sioux Tribe in North Dakota. His father is a member of the Native Village of Barrow. In 1995 J.'s mother placed him with her mother, P.C., who had been helping to care for J. since his birth. Since that time, J. has been in the exclusive care of P.C. P.C. is also a member of the Devil's Lake or Spirit Lake Sioux Tribe.

J.'s father, D.J., is currently incarcerated at the Spring Creek Correctional Facility, where he is serving a twenty-year sentence for attempted murder. He was sentenced on December 5, 1997. D.J. has never resided with his son, nor has he ever had unsupervised custody of J. D.J. has a long history of criminal activity, convictions, and incarceration.

In March 1996 P.C. petitioned the superior court to approve her adoption of J.J.'s mother consented to the adoption in early April 1996. The court issued a notice of dismissal of the adoption petition for lack of prosecution on January 8, 1999. P.C. objected to dismissal, claiming that she had sought but was unable to obtain D.J.'s consent to her adoption of J.

In May 1999 an adoption hearing was held. D.J. participated via telephone from Spring Creek Correctional Facility. He objected to P.C.'s adoption of J. and requested the appointment of counsel. Counsel was appointed to represent him on June 10, 1999, and trial was scheduled for October 7-8, 1999.

On June 28, 1999, P.C. filed an amended petition for adoption indicating that she was married to Mr. S. and that in May 1999 J.'s mother had again consented to the adoption. On August 19, 1999, P.C. filed a motion for summary judgment, arguing that D.J.'s consent to her adoption of J. was not necessary and that his parental rights could be terminated under AS 25.23.180(c)(2)³ and 25 U.S.C. §§ 1901-1968.⁴ In her memorandum in support of summary judgment, P.C. claimed that she had cared for and supported J. for his entire life and had done so exclusively since December 1995. She also asserted that J.'s mother and father had never married and "there was never a custody or visitation order entered between them related to the child." She alleged that D.J. had never enjoyed a meaningful relationship with his son, never bad custody of him, had only visited with J. a few times during the child's life, and had never cared for the child overnight or even had exclusive care of the child for a short visit. She asserted that "[the child has no meaningful relation to [D.J.] except to know [D.J.] is his father."

P.C. argued that D.J.'s withholding consent to her adoption of J. was unreasonable in light of the fact that he never had any parental involvement with J. and will spend J.'s childhood incarcerated. She argued that his continued incarceration and unavailability ever to parent J. during his childhood render D.J.'s refusal to consent to her adoption of J. unreasonable. P.C. supported her motion with her own affidavit and D.J.'s criminal record.

D.J. filed a letter with the court on August 28, 1999, alleging that his attorney failed to answer his calls, hung up on him, and did not perform any work on his case.⁵ On September 16, 1999, J.'s guardian ad litem filed his report with the court, stating that the adoption was in the child's best interest and that D.J.'s refusal to give consent was not in the child's best interests. The guardian ad litem noted that D.J. had told him that he did not object to J. living with P.C., but that he did not want her to adopt J. The guardian ad litem suggested that leaving J. in legal "limbo" was contrary to the child's best interests.

D.J. was appointed a new attorney on October 8, 1999. His new attorney encountered difficulty obtaining permission from the prison to speak with D.J., but was able to file a response to P.C.'s motion for summary judgment on October 21, 1999. That response indicated D.J.'s opposition to summary judgment on the grounds that he believed P.C.'s husband was an alcoholic and a sexual predator and that therefore his refusal to consent to P.C.'s adoption of J. was reasonable. He asserted that his allegations raised questions of material fact regarding both the reasonableness of his refusal to consent to adoption and J.'s best interests, which precluded summary judgment. D.J. did not file any affidavits or other admissible evidence in support of his opposition to summary judgment.

On November 5, 1999, the standing master filed her report, recommending that the superior court determine whether the issue of a parent unreasonably withholding consent to adoption was susceptible to summary judgment, and if so, to find in favor of P.C. The master recommended, in the alternative, that the superior court permit D.J. sufficient time to file affidavits or other admissible evidence in support of his opposition to summary judgment.

On November 29, 1999, the superior court granted summary judgment to P.C. The court found that there was no genuine issue of material fact as to whether D.J.'s parental rights could be terminated under AS 25.23.180(c)(2). The court found that D.J. does not have custody of J. and that D.J. was unreasonably withholding his consent to P.C.'s adoption of J. and concluded that D.J.'s parental rights could be terminated. The court also found that there was no issue of material fact concerning whether D.J.'s parental rights could be terminated under ICWA. The court found that P.C. was J.'s Indian custodian for purposes of ICWA⁶ and that, therefore, § 1912 of ICWA did not apply to the termination of D.J.'s parental rights. The court found, in the alternative, that if § 1912 did apply, the evidence showed beyond a reasonable doubt that J. would suffer serious emotional or physical harm if D.J. continued to have custody of him, and that § 1912(d)⁷ had been complied with "to the extent necessary, under the cireum-stances of this case." The summary judgment order terminated D.J.'s parental rights to J. On December 17, 1999, the standing master heard P.C.'s adoption petition. D.J. was precluded from participating because his parental rights had been terminated. The superior court left it to the guardian ad litem to investigate the suitability of P.C.'s home in light of D.J.'s assertions that P.C.'s husband posed a threat to J.

D.J. now appeals.

III. STANDARD OF REVIEW

Issues not raised in the trial court shall not be considered on appeal, exeept for

plain error.⁸ Plain error exists "where an obvious mistake has been made which cere-ates a high likelihood that injustice has resulted."⁹

This court reviews a trial court's grant of summary judgment de novo.¹⁰ Summary judgment is appropriate "only if the record presents no genuine issues of material fact and the moving party was entitled to judgment on the law applicable to the established facts.¹¹ 4 Where the parties dispute the facts, the non-movant's version is presumed correct.¹² All reasonable factual inferences must be drawn in favor of the non-movant.¹³

Whether ICWA applies to a proceeding is a question of law to which this court applies its independent judgment.¹⁴ This court will "adopt the rule of law that is most persuasive in light of precedent, reason and policy."¹⁵

IV. DISCUSSION

A. The Superior Court Did Not Err in Granting Summary Judgment on Whether D.J. Unreasonably Withheld His Consent to J.'s Adoption.

1. It was not plain error for the court to fail to extend the deadline for D.J. to respond to the summary judgment motion.

D.J. contends that he was not granted sufficient time to respond to P.C.'s motion for summary judgment. This issue was not raised in the trial court. As such, we review D.J.'s argument only for plain error.¹⁶

D.J. points out that his second attorney was appointed just prior to the trial setting conference held on October 20, 1999, and shortly before his response to P.C.'s motion for summary judgment was due. He suggests that he did not have time to oppose summary judgment effectively and that the court erred in failing to grant him more time.

In view of the circumstances, however, it was not plain error for the court to fail to extend, sua sponte, the deadline for D.J. to respond to the motion for summary judgment. Although it appears that D.J. did not receive adequate representation from his first court-appointed attorney, he was appointed substitute counsel, who represented to the court that he would timely file a response to the motion for summary judgment, and in fact did so one day before the response was due. D.J. did not include any affidavits or other evidence in his response to summary judgment, nor did he request an extension. He does not argue that there were issues he would have addressed more thoroughly or for which he would have provided evidence had he been given more time. It was not plain error for the trial court not to extend the deadline for summary judgment.

2. The trial court did not err in finding that there were no material disputes of fact regarding whether D.J. unreasonably withheld his consent to J.'s adoption.

D.J. argues that the court erred in granting summary judgment on the question of the reasonableness of his refusal to consent to J.'s adoption and on the issue of J.'s best interests. D.J.'s arguments regarding both the reasonableness of his withholding consent and J.'s best interest rely on D.J.'s allegation that Mr. S., P.C.'s husband, is an alcoholic sexual predator. D.J. does not dispute any of P.C.'s assertions: that he has never had meaningful involvement in J.'s life, does not object to J. living with her, and will not be available to parent J. during any part of J.'s minority.¹⁷

D.J. has not produced, or even suggested the existence of, admissible evidence that would support his argument that Mr. S. is an alcoholic sexual predator. Instead, he merely describes Mr. S. in his brief as someone "who is thought to be an alcoholic sexual predator."

In summary judgment cases, if the movant shows that she is entitled to judgment as a matter of law on the established facts, the non-moving party must demonstrate that a genuine issue of fact exists.¹⁸ The non-movant must present admissible evidence to the court to meet his burden of raising a material issue of fact.¹⁹ The non-movant is "required, in order to prevent entry of summary judgment, to set forth specific facts showing that he could produce admissible evidence reasonably tending to dispute or contradict the movant's evidence, and thus demonstrate that a material issue of fact exists."²⁰ "Assertions of fact in unverified pleadings and memoranda are insufficient to defeat a motion for summary judgment."²¹

Although whether P.C.'s husband is an alcoholic sexual predator is clearly relevant to determining J.'s best interests and whether D.J. is reasonably withholding consent to J.'s adoption, D.J. has failed to do more than make "[alssertions of fact in unverified pleadings and memoranda."²² He has thus failed to raise a genuine issue of material fact regarding either the unreasonableness of his withholding consent to J.'s adoption by P.C. or J.'s best interests."²³ We therefore affirm the court's grant of summary judgment on state law grounds.

B. The Superior Court Did Not Comply with ICWA.

J. is an Indian child as defined by ICWA. The superior court found that because P.C. was J.'s Indian custodian,²⁴ the provisions of § 1912 of ICWA regarding the termination of parental rights did not apply to the termi-pation of D.J.'s parental rights to J. The trial court found, in the alternative, that if § 1912 did apply, its termination provisions were satisfied. D.J. challenges both findings, arguing that $ 1912 did apply to the termination of his parental rights, and that its provisions were not satisfied.

As an initial matter, we note that the termination of parental rights subject to § 1912 of ICWA involves higher evidentiary standards and different protections of the rights of the parent subject to termination than do termination proceedings strictly under state law. Subsection 1912(d) of ICWA demands:

Any party seeking to effect a ... termination of 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 proved unsuccessful.

Subsection 1912(f) requires a determination, "supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."

"Continued custody" under § 1912(f) refers to legal custody as well as physical custody.²⁵ J. is an Indian child and D.J. is his father. Prior to the termination of his parental rights D.J. had not been divested of his legal custody of J.²⁶ Section 1912's termination provisions therefore appear to apply to the termination of D.J.'s parental rights to J., and P.C. bears a heavy burden to show that they should not be literally followed.²⁷

1. ICWA applies to the termination of D.J.'s parental rights.

The court based its finding that § 1912 of ICWA did not apply to the termination of D.J.'s parental rights on its identification of P.C. as J.'s "Indian custodian." P.C. argues that D.J. waived the right to challenge this finding because he did not raise any issues under ICWA below. We reject this argument.

The trial court was apprized of the child's status as an Indian child under ICWA,²⁸ and was thus aware that the termination of D.J.'s parental rights was a child custody proceeding within the meaning of ICWA.²⁹ Moreover, ICWA had been raised throughout the proceedings, including in the petition for adoption, which alleged that "grounds exist under ... §$ 1901, et seq. to dispense with [D.J.'s] consent." Although P.C. argued in her motion for summary judgment that because she was J.'s Indian custodian, D.J. was not entitled to ICWA's heightened protections, she argued in her response to D.J.'s opposition to summary judgment that the "uncontested facts permit entry of judgment of termination of [D.J.'s] parental rights under ... 25 U.S.C. § 1912(f)."³⁰ The question of whether ICWA's termination provisions applied in this case was therefore squarely before the court, and D.J.'s failure explicitly to raise it will not bar his appeal.³¹

P.C. contends that our opinion in J.W. a. R.J.³² controls the application of ICWA to this case and demonstrates that § 1912(F) of ICWA did not apply to the termination of D.J.'s parental rights. In J.W., a child's father and stepfather, both Alaska Natives, each sought custody of the child following her mother's death.³³ The father argued that, before placing the child with her stepfather, the court had to comply with § 1912(e) of ICWA, and find that there was clear and convincing evidence, including expert testimony, to show that serious emotional or physical damage would likely result to the child if she were placed with her father.³⁴ The stepfather argued that, if ICWA did apply, it provided him equal protection as the child's Indian custodian.³⁵

In remanding for a finding as to whether the stepfather was the child's Indian custodian, we stated that such a finding would "squarely raise the legal question whether § 1912(e) applies reciprocally in a dispute between a parent and Indian custodian."³⁶ We opined that ICWA treats parents and Indian custodians as coequals, and that "[the purposes behind ICWA are consistent with restricting § 1912(e) to disputes between persons having favored status-parents and Indian custodians-and others who are neither parents nor Indian custodians." Applying that reasoning, we held that if the stepfather proved he was the child's Indian custodian, § 1912(e) would not apply and instead only state law regarding custody disputes would apply.³⁷

P.C. urges us to find that the reasoning and policy behind J.W. regarding § 1912(e) control the question whether § 1912(F) applies reciprocally in a dispute between a parent and an Indian custodian. As P.C. points out, the language of § 1912(e) and (F) is identical except that subsection (e) concerns foster placement and requires only clear and convincing evidence, whereas subsection (f) concerns termination of parental rights and requires proof beyond a reasonable doubt.³⁸

We stated in J.W. that "Inlo section of ICWA indicates that Congress preferred a parent to an Indian custodian if the parent did not previously have physical custody."³⁹ Rather, Congress's purpose in passing the Act was to protect the best interests of Indian children and to promote the stability, security, and integrity of Indian tribes and families.⁴⁰ It is therefore arguable that when Congress wrote § 1912(f), it was concerned not with disputes between Indian custodians and non-custodial biological parents, but rather with disputes between Indian custodians or biological parents and non-Indians. For this reason, it might be consistent with Congress's intent to hold that § 1912(f) does not apply to circumstances involving a noncustodial Indian parent and an Indian custodian.

However, the analogy is not as apt as P.C. suggests, and we are not persuaded to ignore the plain language of the statute in order to hold that § 1912(f) does not apply to the case at bar. First, the facts of J.W. and the instant case are not parallel. In J.W., § 1912(e) would not have been applicable to the custody dispute if the stepfather was the child's Indian custodian, because the statutory provision would protect both contestants equally, essentially rendering it moot.⁴¹ Whether the trial court gave custody of the child to the father or the stepfather, the court would be effecting a removal of "an Indian child from its parent or Indian custodian"⁴² and so vindication of one party's rights would directly and proportionally impair the rights of the opposing party.⁴³ Subsection 1912(e) therefore had no analytical purpose in the custody determination.

By contrast, in the case currently before us, termination does not equally affect the rights of P.C. and D.J. If D.J.'s parental rights are terminated, then P.C. is free to adopt J. However, if she is unsuccessful in her efforts, she will not be deprived of the custody of J. which she currently has. Applying § 1912(f) to the termination of D.J.'s parental rights would not be meaningless.⁴⁴ The trial court in this case will not be required to determine whether continued custody by P.C. would likely result in serious emotional or physical damage to J., whereas in J. W., the trial court would have had to ask that question about both parties. Instead, the court will simply have to determine whether continued legal custody by D.J. would likely result in serious emotional or physical damage to J.

That the adjudication of D.J.'s parental rights takes place within the larger context of a dispute between a parent and an Indian custodian does not exempt this case from the framework and application of § 1912(f). Thus, although P.C. correctly contends that she and D.J. are considered coequal in the eyes of ICWA, the inapplicability of § 1912(f) to the termination of D.J.'s parental rights to J. does not follow.

Further, our decision in J.W. rested in part on ICWA's mandate that where a state or federal law was more protective of the rights of a parent or Indian custodian than ICWA, that law should be applied.⁴⁵ Where application of § 1912(e) would not have yielded a preference as between the father and stepfather in J.W., and state law provided higher standards, state law would apply.⁴⁶ P.C. asks us to apply J.W. to diminish the rights of D.J. under ICWA. This we decline to do.

As noted, the custody referred to in ICWA encompasses legal custody.⁴⁷ It appears from the record and P.C.'s brief that she does not have legal custody of J. Assuming, then, that D.J. has not lost his legal custody of J., the "continued custody" referred to in § 1912(f) applies to D.J.'s legal custody. Applying the plain language of § 1912(f), in order to terminate D.J.'s parental rights, the court must find that continued legal custody of J. by D.J. is likely to result in serious emotional or physical damage to him. P.C. has not articulated a sound reason why she should not in fact be required to establish this as provided for in ICWA. It is highly unlikely that Congress intended "Indian custodian" as used in § 1912(f) to refer to the party petitioning for termination. Rather, a natural reading of the section suggests that the petitioner is required to show that continued custody by the party against whom termination is sought would result in serious emotional or physical harm to the child.

We have addressed in other cases the applicability of ICWA in disputes between Indian family members over custody. In 4A.B.M. v. M.H., we refused to hold that ICWA did not apply to intra-family custody disputes.⁴⁸ In so doing, we recognized that Congress had explicitly excepted specific custody proceedings (those arising from divorcee or juvenile delinquency proceedings),⁴⁹ suggesting that those not explicitly excepted were covered.⁵⁰ In A.B.M., a couple sought to adopt the wife's sister's child, and argued that ICWA did not apply when the biological mother attempted to revoke her consent.⁵¹ We rejected the argument that because the adoptive parents were Indian custodians, ICWA did not apply.

The language of § 1912(f) provides that in order to terminate a parent's rights the court must be satisfied by evidence beyond a reasonable doubt, including expert testimony, that continued custody of the child by the parent would likely result in serious emotional or physical harm to the child. Consistent with this language and with our opinion in A.B.M., we hold that ICWA applies to termination proceedings when a party other than the state seeks the termination, even when that party is an "Indian eustodi-an" under ICWA. Accordingly, the trial court's decision not to apply the heightened protections of ICWA was erroneous.

2. -The proceedings below did not satisfy § 1912.

In terminating D.J.'s parental rights, the superior court found that § 1912 of ICWA was inapplicable because P.C. was J.'s Indian custodian. The court made an alternative finding, determining that if § 1912 did apply, its requirements were satisfied. D.J. argues that this alternative finding was incorrect because P.C. did not make a prima facie showing satisfying the "proof beyond a reasonable doubt" standard and because no expert testimony was presented.

D.J. is correct. P.C.'s motion for summary judgment addressed "continued custody" as physical custody and did not make a prima facie showing that continued legal custody of J. by D.J. would result in severe emotional or physical damage to the child. There is no indication in the court's grant of summary judgment that it considered the effect of legal custody. In addition, the expert testimony requirement in § 1912(f) is clear and unambiguous. P.C. describes the expert requirement as "needlessly redundant" in this case. But we will not presume to dispense with a provision that federal law explicitly requires.

In light of D.J.'s anticipated period of incarceration, the trial court held that § 1912(d)⁵² has been complied with "to the extent necessary, under the cireumstances of this case." We have held that a parent's incarceration can diminish the level of active efforts required under ICWA.⁵³ However, incarceration does not eliminate the active efforts requirement of ICWA.⁵⁴ While it may be true that active efforts have been made, and that they have been unsuccessful, the trial court must make findings on these points.

V. CONCLUSION

We AFFIRM the trial court's grant of summary judgment to P.C. on state law grounds. We REVERSE the termination of D.J.'s parental rights because the court failed to comply with § 1912(d) and (f) of ICWA. This case is REMANDED for further proceedings consistent with this opinion.

FABE, Chief Justice, joined by CARPENETI, Justice, dissenting.

1 . 25 U.S.C. §§ 1901-1963 (1978).

2 . See 25 U.S.C. § 1903(3), (4).

3 . AS 25.23.180(c)(2) states:

The relationship of parent and child may be terminated by a court order issued in connection with a proceeding under this chapter or a proceeding under AS 47.10 on the grounds

(2) that a parent who does not have custody is unreasonably withholding consent to adoption, contrary to the best interest of the minor child.

It is questionable whether AS 25.23.180(c)(2) applies since it appears that D.J. did not give up legal custody of J. and it was never taken from him by adjudication. If true, he is not a parent "who does not have custody" of his child.

4 . The Indian Child Welfare Act of 1978 (ICWA).

5 . D.J.'s first attorney did not file an entry of appearance nor, according to D.J., any documents on his behalf. She failed to oppose P.C.'s motion for summary judgment.

6 . See 25 U.S.C. § 1903(6) (" 'Indian custodian' means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.").

7 . Subsection 1912(d) provides:

Any party seeking to effect a foster care placement of, or termination of 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 proved unsuccessful.

8 . See Sosa v. State, 4 P.3d 951, 953 (Alaska 2000); Moreau v. State, 588 P.2d 275, 279 (Alaska 1978).

9 . Sosa, 4 P.3d at 953 (quoting Broeckel v. State, Dep't of Corrections, 941 P.2d 893, 897 (Alaska 1997)).

10 . See Lane v. City of Kotzebue, 982 P.2d 1270, 1272 (Alaska 1999).

11 . Bishop v. Municipality of Anchorage, 899 P.2d 149, 153 (Alaska 1995) (citations omitted).

12 . See Walt v. State, 751 P.2d 1345, 1355 (Alaska 1988).

13 . See Bishop, 899 P.2d at 153.

14 . See J.W. v. RJ., 951 P.2d 1206, 1209 (Alaska 1998).

15 . Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

16 . See Sosa, 4 P.3d at 953; Moreau, 588 P.2d at 279.

17 . D.J.'s March 2001 brief asserts, but does not cite any evidence in the record to support, that D.J. is "not up for parole for three years."

18 . See French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996).

19 . See id.

20 . McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999) (quoting Jennings v. State, 566 P.2d 1304, 1309 (Alaska 1977)).

21 . Id.

²²

23 . See AS 25.23.180(c)(2).

24 . See 25 U.S.C. § 1903(6).

25 . See J.W. v. R.J., 951 P.2d 1206, 1213 (Alaska 1998).

26 . "Legal custody" refers to the responsibility for making "major decisions affecting the child's welfare" and is a status that may be held by a parent who does not have "physical custody," which refers to the responsibility for physical care and immediate supervision of the child. Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

27 . See Sosa, 4 P.3d at 954 ("'Where a statute's meaning appears clear and unambiguous, ... the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent.") (quoting University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska 1997).

28 . See 25 U.S.C. § 1903(4) (" 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.").

29 . See 25 U.S.C. § 1903(1)(ii) (" '[Clhild custody proceeding' shall mean and include ... 'termination of parental rights' which shall mean any action resulting in the termination of the parent-child relationship.").

30 . We also note that P.C. gave written notice to the tribes of both the mother and father of the adoption petition, informing the tribes of their right to intervene and to petition for transfer to a tribal court. Each notice cited ICWA.

31 . Moreover, we are not inclined to find waiver in circumstances such as these, where D.J.'s first attorney allegedly failed to file a single document on his behalf and did not even file an entry of appearance. D.J. attempted to file pleadings on his own behalf but they were rejected because he was technically represented by counsel. D.J. was appointed another attorney fourteen days before his response to P.C.'s summary judgment motion was due. Two days before D.J.'s response was due his second attorney had not been able to communicate with D.J. due to restrictions on telephone contact with prisoners. Waiver is "generally defined as 'the intentional relinquishment of a known right.' " Miscovich v. Tryck, 875 P.2d 1293, 1301 (Alaska 1994) (quoting Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978)). -It is difficult to discern the intentional relinquishment of a known right in the instant case.

32 . 951 P.2d 1206 (Alaska 1998).

33 . Id. at 1208.

34 . Id. at 1211; 25 U.S.C. § 1912(e) ("No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.").

35 . J.W., 951 P.2d at 1211-12.

36 . Id. at 1214.

37 . Id. at 1215.

38 . Subsection 1912(f) provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

39 . 951 P.2d at 1215.

40 . Id. at 1212; see also H.R.Rep. No. 95-1386, at 8 (1978); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37, 109 S.Ct. 1597, 104 LEd.2d 29 (1989) A.B.M. v. M.H., 651 P.2d 1170, 1172 (Alaska 1982).

⁴¹

42 . 25 U.S.C. § 1903(1)@).

⁴³

44 . Because each disputant in a given case involving § 1912(e) might enjoy one (and only one) of the custodial rights (either legal custody or physical custody), neither (or both) of the disputants would be favored by the status quo. Subsection 1912(e) deals with foster care placement; a parent with legal but no physical custody may have "continued custody," but foster care placement will not necessarily interfere with whatever legal custodial rights he or she may have. Subsection 1912(f) is fundamentally different, despite its parallel construction, because termination of parental rights necessarily cuts off whatever rights of "continuing custody" the parent has.

45 . Id; see also 25 U.S.C. § 1921.

⁴⁶

47 . See supra, note 26.

48 . 651 P.2d 1170, 1173 (Alaska 1982).

49 . See 25 U.S.C. § 1903(1).

50 . A.B.M., 651 P.2d at 1173.

51 . Id. at 1171-72.

⁵²

Any party seeking to effect a foster care placement of, or termination of 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 proved unsuccessful.

53 . See A.A. v. State, DFYS, 982 P.2d 256, 261 (Alaska 1999).

54 . See A.M. v. State, DFYS, 891 P.2d 815, 827 (Alaska 1995).