In Native Village of Tununak v. State, Dep’t of Health & Social Services,[1] the supreme court held that clear and convincing evidence is necessary before departing from the Indian Child Welfare Act’s (“ICWA”) adoptive preferences.[2] The Office of Children’s Services (“OCS”) assumed custody of Dawn when she was four months old and placed her in a non-Native foster home.[3] The Native Village of Tununak (the “Tribe”) intervened in Dawn’s case, arguing for placement with Dawn’s grandmother since adoptive preference must be given to the child’s extended family unless there is “good cause” for deviation.[4] The lower court held that a preponderance of the evidence supported its conclusion that there was good cause to deviate from the ICWA adoptive preferences, however.[5] On appeal, the Tribe argued that the good cause showing under the ICWA required clear and convincing evidence before departing from the Act’s adoptive preferences.[6] The supreme court reversed the lower court’s decision, reasoning that Congress’ intent and the U.S. Supreme Court’s interpretation of the ICWA favored overturning precedential use of the preponderance of the evidence standard in these circumstances.[7] Reversing the lower court’s decision, the supreme court held that clear and convincing evidence is necessary before departing from the ICWA’s adoptive preferences.[8]
[1] 303 P.3d 431 (Alaska 2013).
[2] Id. at 446.
[3] Id. at 433–34.
[4] Id. at 433.
[5] Id. at 439.
[6] Id. at 446.
[7] Id. at 449.
[8] Id. at 446.
