E.A., an Inupiat Eskimo, is the mother of C.A., age 6, and V.A., age 1. Since 1970, E.A. had frequent contact with the Department of Health and Social Services [DHSS] regarding the care and custody of her children. Beginning in 1978, E.A. had increasing problems with alcohol and her contacts with the DHSS became more frequent. On September 19, 1978, the DHSS took emergency custody of her children and placed them in the Barrow Receiving Home.
On November 22, 1978, the State filed the first of two petitions for termination of parental rights to C.A. and V.A. On December 28, 1978, prior to the commencement of any proceedings, E.A., the State, and the guardian ad litem entered into a stipulation whereby it was agreed that C.A. and V.A. should be adjudicated children in need of aid and committed to the custody of the DHSS for not longer than two years. The stipulation provided for the return of the children to E.A. after six months if she had fulfilled certain specified conditions, such as obtain a job, seek counseling and quit drinking.
The State filed its second petition for termination of parental rights on February 11, 1979. The superior court terminated E.A.'s parental rights to C.A. and V.A. on April 11, 1979 and ordered "that both of the children be placed in the custody of the [DHSS] for the purposes of adoption into a stable, loving family environment ... with adoptive parents of substantially the same or similar [ethnic] background." E.A. appeals from this decision.
The children were removed from the Barrow Receiving Home and placed with their prospective adoptive parents on May 17, 1979. Shortly thereafter, R.A. and A.A., the grandparents of C.A. and V.A., were informed by the DHSS that their grandchildren had been placed in an undisclosed location with undisclosed persons for the purpose of adoption. On June 8, 1979, the grandparents appealed to the superior court from the DHSS's adoptive placement of C.A. and V.A. and requested a hearing de novo pursuant to the Indian Child Welfare Act
E.A. and the grandparents have consolidated their appeals. The issues presented by each will be discussed separately.
I. Termination of E.A.'s Parental Rights
E.A. challenges the superior court's decision to terminate her parental rights to C.A. and V.A. In reviewing that decision we must apply the clearly erroneous standard. We will not disturb the court's findings regarding the termination of parental rights unless we are left with the definite and firm conviction that a mistake has been made. In re S.D., Jr., 549 P.2d 1190, 1195 (Alaska 1976).
In order to terminate parental rights under AS 47.10.080(c)(3),
In its decision, the court discussed parental conduct at length and expressly found that E.A.'s conduct was such as to constitute abandonment of C.A. and V.A. It is not clear from the decision, however, whether the court made the additional requisite finding, based on clear and convincing evidence, that the parental conduct is likely to continue. In order to assure that the important right to the care, custody, and control of one's children is not permanently terminated absent strict compliance with the statutory requirements, we hold that this finding must be made expressly on the record prior to ordering the termination of parental rights. Thus, we remand to the superior court for determination on the record of whether there is clear and convincing evidence that the conduct of E.A. which led to this action is likely to continue if there is no termination of parental rights.
E.A. objects to the termination of her parental rights in three other respects. We will address these contentions briefly since they are likely to arise again on remand. First E.A. argues on the basis of AS 47.17.030(d) that the state had a mandatory duty to provide counseling and other support services to the family prior to seeking termination of parental rights. AS 47.17.030(d) reads:
E.A.'s reliance upon this statute is misplaced. The section is found in Chapter 17 which applies to cases of physical abuse and neglect of children, and is clearly intended to prevent further abuse by providing protective services to the child.
Before resorting to termination of parental rights, the state must still make reasonable attempts, whenever possible, to preserve and strengthen the family ties.
E.A.'s second contention is that the court erred in rejecting her recommended disposition. She proposed, as an alternative to termination of parental rights, that the state retain legal custody of the children for two years and that the children be placed with their grandparents in the meantime. Assuming that the court, on remand, makes a determination that there is clear and convincing evidence that the parental conduct is likely to continue, it is within the court's discretion to reject this proposal and terminate parental rights.
Finally, E.A. urges that she is entitled to a new adjudicatory hearing under the provisions of the new Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (Supp. 1978) [the Act]. This Act provides a higher standard of protection to the rights of parents in termination proceedings involving Indians and Native Alaskans
II. The Grandparents Right to Appeal the Adoptive Placement of Their Grandchildren
The grandparents contend that the superior court erred in dismissing their appeal from the DHSS's decision to place their grandchildren for adoption with persons unknown to them. The superior court dismissed the appeal for lack of jurisdiction, finding that "[a]ppeal is taken and jurisdiction exists, if at all, under AS 47.10.230(e),"
The grandparents appear to concede at this point that the placement of their grandchildren was for adoptive purposes, and, as such, AS 47.10.230(e) does not directly grant them a right to appeal the DHSS's determination to the superior court. They contend, however, that they have a right to an appeal of the DHSS's determination pursuant to the Indian Child Welfare Act, the Due Process Clause of the Fourteenth Amendment, and Appellate Rule 45.
Section 105 of the Indian Child Welfare Act grants the extended family, including grandparents, a right to preference in the adoptive placement of Indian and Native Alaskan Children.
Although jurisdiction exists in the superior court to adjudicate rights under the Act,
The legislative history of the Act indicates that the applicability provision was intended to provide for an orderly phasing in of the effect of the Act by making its provisions inapplicable to proceedings already initiated as of the effective date, but that Congress "intended that the provisions would apply to any subsequent discrete phase of the same matter or with respect to the same child initiated after enactment."
The Act will be applicable, however, to any future adoptive proceedings in this case. Under Alaska statutory law a hearing must be held in the superior court prior to entering a final decree of adoption.
Thus, we affirm the superior court's dismissal of the grandparents' appeal for lack of jurisdiction. In the case of E.A., however, we remand to the superior court for a redetermination in accordance with section I of this opinion of whether her parental rights should be terminated.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
BOOCHEVER, J., not participating.
RABINOWITZ, Chief Justice, concurring in part, dissenting in part.
In order to assure that E.A's important rights to the care, custody, and control of her children are not permanently terminated absent strict compliance with applicable statutory requirements, the majority remands the matter to the superior court for the purpose of making a finding, based on clear and convincing evidence, that E.A.'s abandonment of her children is likely to continue. Although I agree that a remand is indicated, I disagree with the court's rejection of E.A.'s contention that she is entitled to a new adjudicatory hearing under the provisions of the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901-63 (Supp. 1980).
I concur in all other aspects of the court's decision.