ANCHORAGE — In a split decision, the Alaska Supreme Court has ruled against the village of Tununak, which was appealing a lower court’s decision that allowed an Alaska Native infant to be adopted by non-Native parents rather than giving custody to her extended biological family in the tiny Western Alaska community. The Supreme Court’s ruling this month upholds an earlier Superior Court ruling that concerns about the baby girl’s well-being trumped legal preferences built into a federal law designed to keep children from being adopted away from their Native American communities when possible.
According to the state Supreme Court opinion released Sept. 12, this is what happened: The Office of Children’s Services took custody of the girl — called by the pseudonym “Dawn” to protect her true identity — in July of 2008, when she was 4 months old. There is little mention of the reason for that action in the Supreme Court opinion, but Dawn’s mother apparently suffered from mental health issues and drug addiction. There is no mention of her father in the 41-page opinion.
Because Dawn’s biological parents were Alaska Native, a provision of the federal Indian Child Welfare Act said that state officials had to consider putting her in the custody of a member of her extended family, with other members of her tribe, or with another Native family.
One option for Dawn was her grandmother, whom Tununak tribal officials put forward as a candidate to adopt Dawn. But in meetings about putting Dawn into foster care with the grandmother, the Office of Children’s Services learned an adult son lived in the house, and his particular criminal history meant Dawn could not live there. So for foster care, Dawn was placed with a family in Anchorage, where her biological mother lived and could visit her.
In August of 2009, the grandmother told the state social workers that her son had moved out and that she was still interested in being Dawn’s foster care guardian. That December, a representative from the Association of Village Council Presidents, working on behalf of the Office of Children’s Services, visited the grandmother’s home in Tununak and noted some problems.
“These included unsecured guns, cleaning supplies, medicine, and general clutter in the area that (the grandmother) planned to use as Dawn’s bedroom,” the Supreme Court opinion says.
In February 2010, the grandmother said she would take care of the problems in her house, but she had still not done so by that May, and she inquired about the possibility of Dawn being returned to her mother.
A Superior Court judge disagreed, saying that would not happen because of the mother’s mental health and substance abuse issues, and ultimately terminated the mother’s parental rights in September 2011.
With a decision pending on a new request by the tribe for preferential placement under the Indian Child Welfare Act, the foster family in Anchorage filed to adopt Dawn.
The grandmother, now with renewed interest, testified at a subsequent court hearing on the adoption that it was her right to adopt and raise the girl 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.”
But the Superior Court judge said the grandmother’s testimony had been “less than convincing” and that she only wanted to adopt Dawn because it was what the tribe wanted. In March of 2012, the judge gave custody of Dawn to the Anchorage family. She was nearly 4 years old at that point.
The tribe appealed the decision, and, in the meantime, a similar case ended up before the U.S. Supreme Court. That custody case resulted in the justices finding that the Native-placement preference did not apply.
The U.S. Supreme Court wrote “this is because there simply is no ‘preference’ to apply if no alternative party that is eligible to be preferred … has come forward.”
In the Alaska case, Dawn’s grandmother had stopped pursuing custody, and nobody else from her family or tribe had filed an adoption petition, the majority of Alaska Supreme Court justices wrote in their opinion. Therefore, giving custody to the Anchorage family was the right thing to have done, wrote justices Dana Fabe, Peter Maassen and Joel Bolger.
Two justices, Daniel Winfree and Craig Stowers, disagreed. In their dissenting opinion, Winfree wrote that the other justices had overstated the importance of the U.S. Supreme Court decision and understated the adoption proceedings in the case involving Dawn and Tununak. And the justices in the majority were wrong in saying Dawn’s grandmother did not make an effort to adopt the girl just because she did not file formal paperwork to do so, Winfree wrote, calling the majority’s opinion an “adherence to form over substance.”
“If Dawn’s grandmother is a suitable adoptive placement, then, in light of (the Native preference law) and absent good cause to deviate from its preferences, the current adoption should be vacated and Dawn should be placed with her grandmother for eventual tribal or state court adoption,” Winfree wrote.
Alaska Federation of Natives President Julie Kitka said Monday the federation’s members were worried about the precedent the state Supreme Court’s decision would set.
“This decision is a disservice to our children,” Kitka said in a written statement. “The formal petition for adoption is a very complicated process that requires the assistance of a lawyer that the majority of Alaska Native families cannot easily afford.”
Staff writer Casey Grove is the News-Miner’s Anchorage reporter. Contact him at 770-0722 or follow on Twitter: @kcgrove.
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