Alaska ICWA Case on Qualified Expert Witness and Guardianship

The Opinion case is Jude M., Appellant versus State of Alaska Department of Health & Social Services, Office of Children’s Services, Appellee by the Supreme Court of the State of Alaska.

The leading question was whether a long term Guardianship is more like a foster care placement or a termination of parental rights. It was affirmed legal Guardianship was deemed more similar to a foster care placement and therefore, required the testimony of a “qualified expert witness.” However, the reach of the court’s opinion is limited by the legal framework of ICWA.

My analysis in “An Alternative to the Indian Child Welfare Act” is still valid. First and foremost, voluntary legal Guardianship is an alternative to ICWA (when the court has not yet assumed ANY jurisdiction over the child) and ICWA is not triggered in cases “that do not operate to prohibit the child’s parent or Indian Custodian from regaining custody of the child upon demand.” For all intents and purposes, the court stepped into the father’s parental shoes, effectively super-ceding his parental rights which allowed the court to order the legal Guardianship placement.

The child was found to be an Indian child by the definition of the Indian Child Welfare Act (ICWA). “Father appealed a Superior Court order that granted long-term Guardianship of his daughter to maternal relatives in another state.” Office of Child Services (OCS) petitioned to terminate the father’s parental rights in August 2012 for essentially child abuse and by April 2014, five of the six elements required for termination had been found. While the court didn’t terminate, it was nevertheless de facto termination. The lower court had found the father’s parental rights had been effectively “suspended” because of the child’s status as needing legal intervention and the father was not allowed to have unsupervised contact under the terms of his probation. By that point, there was no negotiating or demanding that his child be returned to his custody.

What is most important to note is that there is a clear history of state intervention. The court essentially found that it had sufficient jurisdiction over the child to allow the court to act within a quasi-parental role. If a voluntary legal Guardianship had already been in effect, the state could not take legal custody.

There is an interesting, unpublished Indian Custodian case out of California deserving special attention. In Riverside County Department of Public Social Services versus J.B. the mother, a member of Citizen Potawatomi Nation claimed she had transferred custody of her minor children to the paternal Grandmother (prior to the state taking jurisdiction over the children). California State Welfare Department was seeking to terminate the mother’s parental rights.

Citizen Potawatomi Nation had created a custodial status called Indian Custodian and the procedure to establish it. As a result of the conflicting information from the Grandmother and Mother regarding which party actually had (legal) control over the minor children, DSS argued that the status of Indian Custodian had not been conferred. As a result of that uncertainty, the state’s jurisdiction was triggered and child removal from the home occurred. In fact, the only problem that the court had with the Indian Custodian status was the lack of evidence or writing to confirm its legitimacy.

I am available for consultation and would like to share more about my findings upon request. Helen Nowlin, Attorney and CEO Educational Family Estate Apps.

American Indian Probate Guide

This downloadable pdf, American Indian Probate Guide (located at http://educationalfamilyestateapps.com/american-indian-probate/) discusses what you need to know about the American Indian Probate Reform Act. The Act applies if you are a member of a federally recognized tribe with Trust or Restricted lands!

It includes: a Model Will and Testament (compliant under the Act) and immediate access to our great Guest Writer Series, too! Get it now for $69.00 (look for our Groupon deal coming soon!).

We are an affordable legal service with the information EVERYONE needs.

Helen Nowlin, Attorney and CEO picture

An Alternative to the Indian Child Welfare Act