Alaska Supreme Court Reverses Trial Court Determination that ICWA Does Not Apply

Here is the opinion in Bruce L. v. W.E.

An excerpt:

A biological father appeals from the termination of his parental rights and an adoption decree, arguing it was error for the trial court to (1) fail to apply certain protections available to him under the Indian Child Welfare Act (ICWA) and (2) find his consent to the adoption unnecessary under state law. We vacate the trial court’s determination that the child is not an Indian child under ICWA because it is not explained in the court’s written decision why, after the parties to the proceeding took the position that the child is an Indian child and that this was an ICWA adoption, the trial court sua sponte found and relied on a proof deficiency without giving the father notice and opportunity to address it. We also reverse the trial court’s determinations that (1) the father’s efforts to obtain custody through the courts were not justifiable cause for his failure to meaningfully communicate with the child during the first year of the child’s life, and (2) the evidence in the record of the father’s indigence did not meet his burden of production regarding justifiable cause for his failure to support the child during that year. We therefore vacate the termination of the father’s parental rights and the adoption decree and remand for further proceedings on the child’s status as an Indian child, possible ICWA protections available to the father, and whether the father unjustifiably failed to support the child during the first year of the child’s life.

2 thoughts on “Alaska Supreme Court Reverses Trial Court Determination that ICWA Does Not Apply

  1. EML February 15, 2011 / 12:26 pm

    The birth mother said she was a tribal member and that the child was eligible for tribal membership, so the parties basically stipulated that the child was an Indian Child under ICWA and that ICWA applied to the case.

    At the finish line, the trial court found that the child was not an Indian Child because the birth mother’s say-so, without more, was insufficient. The AK Supreme Court discussed the nifty procedural issue of whether the determination of an Indian Child was a matter of law or fact, and whether it could properly be the subject of a “judicial admission.”

    The solution was to criticize the trial court for springing this on the parties without notifying them that the issue was even in play, and reversed and remanded.

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