July 01, 2012

Alaska High Court Upholds Deviation from ICWA’s Placement

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The Alaska Supreme Court found good cause to deviate from Indian Child Welfare Act’s placement preference where child had been with an unrelated foster family for two years at time of trial, the parents had failed to object over the course of three review hearings, and an expert witness testified that the proposed placement out-of-state was not in the child’s best interests.

Roy S. v. Dep’t of Health & Social Servs., 2012 WL 2203036 (Alaska).

A child welfare agency took custody of the child and her siblings when their mother was arrested and the father’s whereabouts were unknown. The children were found to be Indian children for the purposes of the Indian Child Welfare Act (ICWA) at the outset of the case.

The agency investigated several possible relative placements while the children were in temporary foster placements. A number of uncles were unable to take the child or her siblings.

The child was briefly placed with a great-aunt, but she was removed after the agency received an unfavorable reference from a mental health clinician. The agency also submitted a request for an Illinois home study on the paternal grandmother through the Interstate Compact on the Placement of Children.

For six months, the children lived with their maternal grandmother. The agency provided her with various assistance, including housing, heat, transportation, and day care. The grandmother also received services for alcohol dependence. A family team decided to move the child to an unrelated foster family after the grandmother reported she was struggling to maintain the children.

The trial court reviewed the placement with the unrelated foster parents at least five times over the year and a half before the termination of parental rights. At the first permanency hearing, a tribal representative attended and expressed concern over separating the siblings, but did not object or offer an alternative placement that could accommodate all the siblings.

At the next two hearings, the court considered the possible placement with the paternal grandmother in Illinois. It noted the continued plan for reunification, the child’s need to be near family, and the child’s stronger bond with her foster family in Anchorage. It therefore found good cause to deviate from the ICWA’s relative preferences. None of the parties objected to these orders.

The parents only made clear objections to the foster home placement at the third hearing during the year-and-a-half period, contending the court should have placed the child in Illinois or with a cousin in Alakanuk in far western Alaska. Again, the court found the continued placement was appropriate in order to retain ties to family in Anchorage.

The trial court ultimately found grounds for termination and that termination was in the child’s best interests based on her bond to her foster family. Finding good cause to deviate from the ICWA placement preferences under the circumstances, the trial court terminated the parents’ rights. The father appealed.

The Alaska Supreme Court affirmed the trial court order terminating father’s parental rights. The court first reviewed whether the agency made active efforts to assist the father with his case plan as required by the ICWA. The Court noted that active efforts differ from reasonable efforts in that they require the state to take “the client through the steps of the plan rather than requiring that the plan be performed on its own.”

The supreme court found the trial court properly found the agency made active efforts. The Court noted the agency repeatedly attempted to contact the father despite his failing to keep the agency updated about the changes in his contact information. In fact, the father’s whereabouts where unknown for several periods for months at a time. The court also found the father had failed to address his substance abuse issues despite services including an unsuccessful residential program.

The Supreme Court held the court did not err in finding that the termination was appropriate considering the ICWA placement preferences. The court noted the ICWA does not “require consideration of placement options in determining whether to terminate parental rights.” The exception is where a placement decision adversely impacts the parents’ ability to complete the case plan. Here, the trial court kept the child in a placement in Anchorage to enable visitation with her parents. This was consistent with the Act.