Ebert v. Bruce L.

340 P.3d 1048 (Alaska 2014) · Supreme Court of Alaska · December 26, 2014 · No. Supreme Court Nos. S-15130/15219 (Consolidated)

Summary

The Alaska Supreme Court affirmed the denial of an adoption petition filed by William and Holly Ebert and biological mother Connie J. The court held that the Indian Child Welfare Act did not preempt Alaska’s adoption-consent statute and that Bruce L.’s consent was required because the petitioners failed to prove by clear and convincing evidence that his failure to support the child lacked justifiable cause. The court also dismissed the appeal of an interim custody and visitation order as nonfinal.

Holdings

  1. ICWA does not preempt AS 25.23.050(a)(2)(B). The state statute merely creates an exception to the parental-consent requirement and does not automatically authorize adoption of an Indian child; other state adoption requirements and ICWA protections remain applicable.
  2. Bruce was a parent for purposes of AS 25.23.040 and .050 because he established paternity before entry of the adoption decree. His consent was therefore required unless excused under the adoption statute.
  3. The superior court did not clearly err in finding that Bruce's failure to provide child support was justified. The Eberts and Connie therefore failed to establish by clear and convincing evidence that Bruce's consent was excused under AS 25.23.050(a)(2)(B), and his consent was required before the adoption could proceed.
  4. The appeal from the superior court's interim custody and visitation order was dismissed because the order was not final and no special circumstances justified interlocutory review.

Questions Presented

  1. Whether the Indian Child Welfare Act preempted Alaska Statute 25.23.050(a)(2)(B), which excuses the consent requirement for adoption when a noncustodial parent unjustifiably fails to provide support.
  2. Whether Bruce was a parent whose consent was required under Alaska Statutes 25.23.040 and 25.23.050.
  3. Whether the superior court clearly erred in finding that Bruce's failure to support Timothy was justifiable.
  4. Whether the Supreme Court had appellate jurisdiction to review the superior court's interim custody and visitation order.

Disposition

affirmed

Cases Cited (15)

  • Jones v. Bowie Indus., Inc., 282 P.3d 316, 325 (Alaska 2012)(followed)
  • Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 502 (Alaska 2009)(followed)
  • Allen v. State, Dep't of Health & Soc. Servs., Div. of Pub. Assistance, 203 P.3d 1155, 1162 (Alaska 2009)(followed)
  • Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 334 P.3d 165, 180 n.17 (Alaska 2014)(quoted)
  • In re Adoption of L.A.H., 597 P.2d 513, 517 (Alaska 1979)(followed)
  • Beal v. Beal, 209 P.3d 1012, 1016-17 (Alaska 2009)(followed)
  • In re Adoption of J.M.F., 881 P.2d 1116, 1118 (Alaska 1994)(followed)
  • In re J.J.J., 718 P.2d 948, 953 (Alaska 1986)(applied)
  • David S. v. Jared H., 308 P.3d 862, 869-70 (Alaska 2013)(distinguished)
  • Bruce L. v. W.E., 247 P.3d 966 (Alaska 2011)(followed)

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