6 NICS App. 72, IN RE THE MATTER OF N.C. (August 2001)
IN THE METLAKATLA TRIBAL COURT OF APPEALS
METLAKATLA INDIAN COMMUNITY
METLAKATLA, ALASKA
In re the matter of N.C., Minor member of the Metlakatla Indian Community
No. 01-002 (August 20, 2001)
SYLLABUS*
Magistrate court, which had previously granted custody of a minor child to the child’s great grandmother, denied mother’s petition for custody based on a finding that the best interest of the child would be served by retaining custody in the great grandmother. Court of Appeals holds that the mother had satisfied the conditions for a transfer of custody established in an intervening order of the Magistrate and the evidence in the record did not support a finding that retaining custody in the great grandmother was in the best interest of the child. Magistrate court order reversed and remanded for entry of an order granting custody to the mother.
Before: Lorintha Warwick, Chief Justice; Douglas W. Luna, Justice; Rose E. Purser, Justice.
OPINION
THIS MATTER came before the Metlakatla Court of Appeals pursuant to Appellant's Notice of Appeal. Appellant, Teresa (Atkinson) Boddy, appeals from the March 8, 2001 order of the Magistrate's Court denying her petition for custody.
Background
On May 24, 1991, subsequent to a petition filed by Metlakatla Social Service (MSS) and a May 23, 1991 order of the Magistrate's Court, Ms. Boddy consented to placement of her son, N.C., in the physical custody of his great grandmother, Dolores Dundas, while she received substance abuse treatment. On October 16, 1991, MSS requested that N.C. be returned to the custody of his mother, who was planning to move to from Metlakatla to Ketchikan. No hearing was ever held pursuant to this request; however, it the parties do not dispute that N.C. subsequently moved to Ketchikan with his mother, who remained his primary care provider for the next several years.
6 NICS App. 72, IN RE THE MATTER OF N.C. (August 2001) p. 73
In November of 1995, Ms. Boddy granted power of attorney over N.C. to his great‑grandparents, Dolores and Freeman Dundas, Sr. The power of attorney granted the Dundases physical custody, control and power of consent to health care services for N.C. for a period of one year. It appears that N.C. remained in primary residence with the Dundases until July 2000. In July of 2000, N.C. went to Anchorage to visit his mother and "decided... that he wanted to stay."
On September 5, 2000, the Magistrate's Court found that N.C. remained a ward of the court and ordered physical custody of N.C. returned to his great‑grandmother, Ms. Dundas, "until such a time that Teresa Atkinson [Boddy] has successfully completed treatment for her substance abuse and can produce sufficient proof thereof."
On September 14, 2000, the Magistrate's Court entered its Findings and Order, stating that the grant of custody effected by its May 23, 1991 order had never been modified and, therefore, that custody of N.C. remained with Ms. Dundas. The Court ordered that N.C. be immediately returned to Ms. Dundas and the Annette Island Reserve. The Court further ordered that Ms. [Boddy] could petition for modification of the custody order pursuant to Metlakatla law. In October of 2000, Ms. Boddy petitioned the court for custody. The Alaska Superior Court registered the custody order in November 2000.
On February 2, 2001, pursuant to a request by MSS, the Alaska Department of Health and Social Services conducted a home study on Ms. Boddy and her husband. The home study revealed that Ms. Boddy had successfully completed in-patient substance abuse treatment, evidenced by a Salvation Army Clitheroe Center Assessment and discharge. The study further indicated that Ms. Boddy continued to maintain a substance‑free lifestyle and recommended that custody of N.C. be returned to Ms. Boddy. On March 9, 2001, MSS followed suit and recommended N.C. be returned to his mother's custody.
A hearing was held on March 7, 2001, during which the presiding Magistrate spoke with N.C. in chambers. Subsequently, the Magistrate asked N.C. to state on the record what he had stated in chambers: that he preferred to remain in Metlakatla to go to school "because it's easier" than school in Anchorage.
On March 8, 2001 the Magistrate's Court denied Ms. Boddy's petition for custody on the ground that N.C.’s "best interest is served by leaving him under the custody of his maternal great grandparents." This appeal followed.
Discussion and Order
Appellant alleges that the Magistrate's Court failed to base its decision on the best interests of N.C. and rendered a decision contrary to the weight of the evidence, including the recommendations of MSS and the Alaska Department of Health and Social Services. Appellant
6 NICS App. 72, IN RE THE MATTER OF N.C. (August 2001) p. 74
also alleges it was error for the Magistrate's Court to accord significant weight to N.C.'s comments that school was easier in Metlakatla.
Respondent, on the other hand, contends that the May 1991 order granting custody to Ms. Dundas remains in effect and may be modified only by order of the Magistrate's Court. We hold that the September 5, 2000 order does, in fact, modify the May 1991 order. Pursuant to the September 5th order, Ms. Dundas retained custody of N.C. "until such a time that Teresa Atkinson [Boddy] has successfully completed treatment for her substance abuse and can produce sufficient proof thereof.” There is ample evidence in the record that Ms. Boddy met this requirement, including the home study report issued by the Alaska Department of Health and Social Service and the recommendation of MSS. Further, Respondent does not dispute that Ms. Boddy met the sole criterion for regaining custody of her son.
Under the Indian Child Welfare Act, the standard to be applied in child custody matters is the best interest of the child. The Magistrate’s Court itself states that "the law requires us to make every effort to reunite families whenever possible." Tr. at 4. Nevertheless, despite reports and recommendations from two social service agencies that N.C. should be returned to his mother's custody, and despite its own observation that "Teresa has complied, she has put herself in a position where she does qualify … to now properly be able to take care of [N.C.]”, the Magistrate's Court denied Ms. Boddy's petition.
With one exception, there is no evidence in the record to support the Magistrate's decision that remaining with Ms. Dundas is in N.C.'s best interest. That exception is N.C.'s own testimony that he prefers to remain in Metlakatla because school is "easier" there. Nevertheless, it is open to question whether this statement weighs in favor of the best interest standard.
We hold the record does not support the order of the Magistrate's Court denying Ms. Boddy' s petition for custody. Therefore, based on the foregoing, and pursuant to 2.6.14 of the Metlakatla Appellate Rules, the March 8, 2001 Magistrate's Court order is hereby reversed and remanded to the trial court to issue an order granting full physical and legal custody of N.C. to Teresa Boddy.
The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.