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Back to the Indian Law Bulletins (Cite as: 2004 WL 2260291 (Alaska))
Only the Westlaw citation is currently available.
Supreme Court of Alaska.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Reese, Judge.
FN* Entered pursuant to Appellate Rule 214.
1. [R.D.V.], d.o.b. 2/20/90, is the child of Dawn Cotter and Harold Richard Viol, a/k/a Harold Richard Vowell. Mr. Vowell died on March 13, 1994 in Anchorage, Alaska.... [I]t is not very clear in whose physical custody the child was in at that time. As it was, Mr. Viol left a Last Will and Testament appointing his sister Ruth Hansen as the guardian of the child. Her testimony indicates that she took physical custody of the child about a month after Mr. Viol's death. 2. There is no evidence of any court order terminating Ms. Cotter's parental rights. The evidence in this proceeding is unclear as to how much knowledge she had and/or what approval she gave as to Ms. Hansen taking physical custody of the child.[ [FN1]]
4. There is no evidence of [any type of legal proceeding or case] granting Ms. Hansen custody of the child at any time. 5. Ms. Hansen had physical custody of the child in ... Cordova, Alaska from 1995 until January or April 1997 ... when [Henry] Van Horn [ [FN2]] began his physical custody of the child.
7. Ms. Hansen never set up a custodial account in the child's name for those monies. She deposited them in her own account and expended all of the $23,552.30. She testified that it was used on behalf of the child for plane tickets, family vacations, a bed, clothes, and other things. However, $8,733.08 of that money was paid out to her after Mr. Van Horn took physical custody of the child in April 1997. There is insufficient evidence as to her actually having that much in expenses for the child during her post-April 1997 non-custody period. *2 8. The actual circumstances as to why and how Mr. Van Horn took physical custody of the child in California in April 1997 are still murky.... [According to Ms. Hansen, she believed the child should temporarily be placed in the custody of Mr. Van Horn when Ms. Hansen was scheduled to undergo a surgical procedure. According to Mr. Van Horn, California Child Protective Services placed the child with him as a foster parent.] 9. Regardless of whose version is correct as to how Mr. Van Horn took physical custody of the child, he was appointed as the child's guardian on or about August 31, 1998 by the Superior Court of California, County of Butte in Oroville.... That appointment of Mr. Van Horn has not been vacated by any court order. 10. On October 19, 1999 the California court approved a Custody Order ... [granting Ms. Hansen visitation rights on] alternating Christmases beginning in 1999, alternating Easter school vacation periods beginning in 2000, and every month of July beginning in 2000. Mr. Van Horn's guardianship rights were not affected by this visitation order. This visitation order did not say anything as to Mr. Van Horn being required to have any particular type of communication with Ms. Hansen in order to facilitate her visitation. 11. Since 1999 Ms. Hansen has seen the child twice. Once, during the Easter 1999 vacation period for an unspecified amount of time, and once for a brief amount of time on March 8, 2001 in Anchorage, when she happened to be walking by an Anchorage homeless shelter and she spotted the child there. 12. Mr. Van Horn moved with the child from California to Alaska in September 1999. It appears that he first went to Hydaberg to teach school. He and the child were there an unspecified period of time, and then they moved to Togiak until their move to Anchorage in early 2001. Mr. Van Horn suffered rotator cuff injuries, which [have] resulted in his being regarded as disabled from work. The move to Anchorage was in part so he could receive medical treatment here. 13. Ms. Hansen moved to California in October 1999 to be nearer to the child, but was unaware that Mr. Van Horn and the child had already moved to Alaska. In December 2000 she moved to Anchorage to be closer to the child; although at that time the child and Mr. Van Horn were in Togiak. 14. Initially, upon their move to Anchorage Mr. Van Horn and the child lived in a Salvation Army homeless facility for up to 30 days, and then they moved into Mr. Van Horn's present apartment. 15. The evidence indicates that for a significant period of time, including before Mr. Van Horn took over physical custody, the child had had mental health problems. In March 2001 Mr. Van Horn put the child in the Northstar Residential Acute Care Center, because of the child's behavioral problems. Mr. Van Horn testified that the child was in the facility for up to two months and then he returned home. 16. That return was brief, as in July 2001 the child was readmitted to the Northstar Acute Care Treatment Center due to suicidal gestures, depression, and difficulty in following rules. He was there for about three weeks, and then he was transferred to the Northstar Residential Treatment Center for long-term mental health care. He was diagnosed as having Bi-Polar Disorder, Oppositional Defiant Disorder and Post-Traumatic Stress Disorder. He has been given various medications for his problems. *3 17. Ms. Weaver, [the program manager at Northstar, testified that] Mr. Van Horn has been consistently and appropriately involved in the child's care at Northstar. She said that Mr. Van Horn has had the child on four to twelve hour visitation passes, depending on how the child was doing at that time. 18. The child [was] scheduled for release back to Mr. Van Horn's physical care and custody [in May or June 2002], but due to the child's recent behavioral problems the Northstar staff deferred the release.... Ms. Weaver testified that upon the child's release both individual and family therapy should continue. 19. Ms. Weaver testified that the child was "very neutral" (Ms. Weaver's words) as to having contact with Ms. Hansen. Ms. Weaver indicated that such contact would depend on the family situation and that it would be up to the child's custodian to make decisions about such contact. .... 22. The Northstar bills have been paid through the Denali Kid Care program. 23. From the time that Mr. Van Horn and the child left California in September 1999 until now Mr. Van Horn and [Ms.] Hansen have had very little contact. He testified that he tried to contact her by mail prior to 2001 about the [child's] CIRI dividends, but he received no answers to his inquiries. On the other hand, she testified that she never heard from him, so that her seeing the child in Anchorage suddenly on March 8, 2001 was a surprise. The manner in which they testified shows that there is a lot of animosity between them now. 24. Mr. Van Horn's testimony indicates that he has been more willing to keep or try to keep other relatives of the child informed as to the child's whereabouts and situation.... 25. Mr. Van Horn feels that since Ms. Hansen did not ask for visitation and exercise it for a substantial amount of time, that in his eyes there was no court order as to visitation anymore.... 26. Mr. Van Horn has two bank accounts in the child's name. One is at the Wells Fargo bank and the balance as of the March 31, 2002 statement was $19,126.35. Those funds are the result of CIRI dividends or distributions sent to Mr. Van Horn as the child's guardian, although it is unclear as to the time period over which the monies were paid out. The second account is at U.S. Bank of Minnesota in which there was $35,611.08 as of the June 13, 2002 statement date. These monies are the accumulation of Social Security survivor's benefits paid out to the child due to his father's death. Mr. Van Horn testified that at an unspecified time he received about $26,000.00 as a lump sum survivor's benefit payment, which was due to that money building up over time until an application had been made on behalf of the child for the benefits to begin. 27. Mr. Van Horn receives $667.00 per month in on-going Social Security survivor's benefits for the child. He also receives $368.80 per month in workman's compensation, $478.00 per month in Social Security disability, and $362.00 per month in adult public assistance. In addition, $44.00 per month is sent to his 17-year-old son ... who lives with Mr. Van Horn, as his own share of the public assistance. Mr. Van Horn uses all these monthly payments, including the child's $667.00 per month, for his household expenses. *4 28. [Mr. Van Horn testified he has complied with the requirement that he report annually to the Social Security Administration as to how he uses the child's Social Security payments.] 29. On March 21, 2001 Mr. Van Horn filed on the child's behalf a [civil] complaint [against Ms. Hansen]. He sought Ms. Hansen's removal as "Trustee of the [R.D.V.] Trust," her accounting for all funds and reimbursing all losses, her paying attorney's fees and costs, her paying post-judgment interest, and her paying punitive damages.... 30. [That civil case is still pending, and there is reason to believe the civil court is awaiting the outcome of this guardianship case before proceeding with the civil case.] 31.... CIRI is holding [an additional] $68,646.44 on the child's behalf. That is the total that was to have been sent to Ms. Hansen as the stock custodian of the child's share of his father's share of the December 12, 2000 to September 28, 2001 distributions and dividends. CIRI has placed this money in an interest-bearing account until "... the custodianship issue is resolved." .... 33. Mr. Van Horn testified that he has spent about $7,500.00 of the child's money for his attorney's fees and costs in this case and the civil case. (Footnote omitted.)
Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.[ [FN7]]
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.
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