J.W. v. R.J.

• Decision Date: 16 January 1998
• Docket Number: No. S-7827,S-7827
• Citation: 951 P.2d 1206
• Parties: J.W., Appellant, v. R.J., Appellee.
• Court: Alaska Supreme Court

Page 1206

951 P.2d 1206

J.W., Appellant, v.R.J., Appellee.

No. S-7827.

Supreme Court of Alaska.

Jan. 16, 1998.

Bonnie J. Coghlan, Fairbanks, for Appellant.

Daniel L. Callahan, Schendel & Callahan, Fairbanks, for Appellee.

Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

OPINION

EASTAUGH, Justice.

I.INTRODUCTION

The father and stepfather of a minor child are Alaska Natives who each seek custody of the child following her mother's death.The superior court awarded joint legal custody to the contestants, primary physical custody to the stepfather, and visitation to the father.While the father's appeal from that judgment was pending, the superior court modified the judgment and awarded physical and legal custody to the father.Because the child's tribe was not given an opportunity to intervene and the initial judgment was not supported by fact findings satisfying the test that controls a custody dispute between a parent and non-parent, we remand for further findings and for proceedings consistent with the Indian Child Welfare Act.

II.FACTS AND PROCEEDINGS

S.R. was born in 1988.E.J. was her mother and J.W. was her father.S.R. had lived since infancy with her mother and her stepfather, R.J. E.J. and R.J. married in 1989. J.W. saw S.R. on her first birthday and did not see her again until August 1995.In 1995 R.J., the stepfather, filed for divorce from E.J., ¹ and sought legal and primary physical custody of S.R. J.W. contested custody.E.J., S.R.'s mother, had custody of S.R. until E.J. died in March 1996.The custody contest between the father, J.W., and the stepfather, R.J., then became the only remaining dispute.

Following E.J.'s death, the superior court gave the stepfather temporary custody, with visitation to the father.The superior court conducted a custody trial and in August 1996 entered judgment awarding shared legal custody to the father and stepfather, primary physical custody to the stepfather, and visitation to the father.The father appealed from that judgment, arguing that the court erred in failing to apply the Indian Child Welfare Act and that there was insufficient evidence under the state law standard to award custody to a non-parent.The father did not seek a stay when he filed his appeal.

Relevant events occurred after entry of the 1996 judgment.The state took custody of S.R. from September 4, 1996, to December 4, 1996, following a report that the stepfather had previously abused S.R. sexually.The state placed S.R. with her aunt in Fairbanks during this three-month period.S.R. was returned to her stepfather in Birch Creek on December 4, and remained there until December 18, when she traveled to Fairbanks for Christmas visitation with her father.

On January 9, 1997, the father, J.W., moved in the superior court for a stay pending appeal, alleging that the stepfather had sexually abused the child, and that she was at risk if she returned to his custody.J.W. also moved for expedited consideration.

The court granted expedited consideration the next day, without giving the stepfather an opportunity to file an opposition.The superior court gave the stepfather until January 15 to respond to the underlying motion, but did not specify the child's custody in the meantime.When the father's lawyer called the judge's secretary and inquired whether S.R. was required to return to the stepfather's custody pending resolution of the motion, the court ordered that the child remain in Fairbanks while the matter was pending.

At a January 13, 1997, status hearing, the superior court orally denied the father's stay motion, but set a hearing for January 16 to determine "whether or not there are circumstances that now exist that place [S.R.] at risk in going back to Birch Creek."

On January 16the father moved to modify custody.The superior court heard testimony on January 16 and 17 from the doctor who had examined S.R. in August 1996, the Alaska State Trooper who had interviewed her, and the two contestants.The superior court also accepted the report of the guardian ad litem (GAL).On January 17the superior court issued an order modifying the August 1996 judgment.The order found that "[c]onsiderable confusion exists as to whether [S.R.] was ever sexually molested and, if so, when and by whom."The order also stated that "[t]he evidence before this court at this time does not suggest that [S.R.] is currently at risk in the [stepfather's] household."Nonetheless, the order found that a change of circumstances had occurred since the 1996 trial, and permanently modified the judgment by giving primary physical custody to S.R.'s father, with visitation to S.R.'s stepfather.

Several months later, over the stepfather's objection, the court ordered an in camera interview with S.R.The superior court sua sponte again permanently modified the custody order on May 15, 1997, giving sole legal custody to the father and decreasing the stepfather's visitation.The stepfather, R.J., appeals both 1997 modification orders on the theory that procedural errors denied him due process of law.

We here consider the father's appeal from the 1996 judgment and the stepfather's appeal from the 1997 modifications.

III.DISCUSSION

A.Standard of Review

We will disturb the trial court's resolution of child custody issues only "if the record shows an abuse of discretion or if controlling findings of fact are clearly erroneous."House v. House, 779 P.2d 1204, 1207(Alaska1989)(citingFaro v. Faro, 579 P.2d 1377, 1379(Alaska1978)).Whether factual findings are sufficient to support an award of custody to a non-parent is a legal issue to which we apply our independent judgment.R.R. v. State, 919 P.2d 754, 755 n. 1(Alaska1996).

The applicability of the Indian Child Welfare Act of 1978 to this proceeding is a question of law subject to our independent judgment.In re T.N.F., 781 P.2d 973, 975(Alaska1989).We will "adopt the rule of law that is most persuasive in light of precedent, reason and policy."Guin v. Ha, 591 P.2d 1281, 1284 n. 6(Alaska1979).

B.The Post-Judgment Modification Orders

The stepfather, R.J., argues that the superior court erred in 1997 by: (1) entering the order for expedited consideration without allowing him a reasonable time to oppose the motion; (2) amending the order for expedited consideration based on an ex parte contact with J.W.'s counsel; (3) modifying the judgment pending the outcome of a motion for a stay; (4) treating the motion for stay on appeal as a motion for modification; (5) admitting into evidence Dr. Marvin Bergeson's testimony about the child's identification of the perpetrator, Dr. Bergeson's report, and the GAL's testimony about the child's statements; (6) basing the January 1997 modification on issues not identified by the superior court before the hearing; and (7) permanently modifying the 1996 judgment without proper notice and hearing.

The father, J.W., argues not that the orders were entered without procedural error, but that any errors are mooted by correcting the error of awarding custody to the stepfather in August 1996.

Our resolution of issues concerning the August 1996 judgment moots any need to consider questions about the procedural adequacy of the 1997 orders.²

C.The August 1996 Judgment

1.Was it an abuse of discretion to award custody of S.R. to her stepfather, R.J.?

The father, J.W., argues that the superior court improperly applied the Alaska standard for resolving a custody dispute between a parent and non-parent.He reasons that under Turner v. Pannick, 540 P.2d 1051(Alaska1975), andCarter v. Novotny, 779 P.2d 1195(Alaska1989), the superior court must find that the parent is unfit or that it would be harmful to the child's welfare to be placed with the parent before the non-parent is awarded custody.He claims that there is insufficient evidence to make this finding.The stepfather, R.J., argues that the superior court correctly applied the Turner standard and "clearly" found that "placement outside [R.J.]'s home would be detrimental to the child...."

Turner v. Pannick stands for the proposition that parental custody is preferable and only to be refused where it is clearly detrimental to the child.540 P.2d at 1055."Unless the superior court determines that the parent is unfit or has abandoned the child, or that the welfare of the child requires that the non-parent receive custody, the parent must be awarded custody."³Id.We reaffirmed these principles in B.J. v. J.D., 950 P.2d 113(Alaska1997);Rooney v. Rooney, 914 P.2d 212, 216 n. 8(Alaska1996);Buness v. Gillen, 781 P.2d 985, 988-89(Alaska1989);Carter, 779 P.2d at 1197;andBritt v. Britt, 567 P.2d 308, 310(Alaska1977).

We agree with the father that the 1996 judgment is not supported by the fact findings necessary for an award of custody to a non-parent.The superior court recited the Turner standard, as set out in Carter, and also cited to Buness, but found that S.R.'s "psychological and emotional development, as well as her overall welfare, requires that this relationship [with her stepfather] not be traumatically interrupted."The superior court based this finding on the fact that S.R. had lived most of her life with her stepfather, that he had become her psychological father in many ways, and that he could provide her a stable home.The superior court found that S.R.'s father had not known her for most of her life and that they had just recently become reacquainted.Yet the superior court also found that both men are "fit parents who desire the best for [S.R.]."After determining that S.R.'s welfare required a parental role for the stepfather, the superior court then seemingly applied the statutory factors under AS 25.24.150 to determine that it was in S.R.'s best interest that the stepfather have custody during the school year and that the father have custody during the school vacations.

There was no express finding that it would...