Attorney: Erin Dougherty Lynch
The Indian Child Welfare Act establishes adoptive placement preferences for placing an Indian child with a member of the child’s extended family, other members of the child’s tribe, or with other Indian families. A court may deviate from these preferences only upon a showing of good cause. NARF has worked with tribes on the issue of ensuring that state courts abide by a tribe’s adoptive placement preference. In Alaska, courts had been applying the incorrect standard – the preponderance of the evidence standard – instead of the clear and convincing standard of proof. At issue in Native Village of Tununak v. State of Alaska was this proper burden of proof that the Alaska Office of Children’s Services must meet in order to move a child from one placement to another. NARF authored an amicus brief in the case on behalf of the Native Village of Kotzebue.
In June 2013 the Alaska Supreme Court issued an important ruling in the case which held that ICWA implicitly mandates that good cause to deviate from ICWA’s adoptive placement preferences be proved by clear and convincing evidence, not the weaker preponderance of the evidence standard. This is an important decision because Alaska had been the only state where courts applied the preponderance of the evidence burden of proof to findings of good cause to deviate from ICWA’s adoption preferences. In addition, the court’s opinion also includes important language on the need for trial courts to evaluate the suitability of placements not under “white, middle class standards” but under “the prevailing social and cultural standards of the Indian community.” A copy of the Alaska Supreme Court’s opinion is available from the National Indian Law Library website.
Unfortunately, the ruling did not end the status of the appeal as the adoptive parents have now asked the Court to revise its ruling in light of Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013). The Alaska Court has asked the parties to brief the effect, if any of Baby Veronica on the pending adoption case. NARF has been asked to once again submit an amicus brief.