Alaska Supreme Court rules early ICWA errors don't undo a later termination that followed the law

The Alaska Supreme Court ruled Friday that violations of the Indian Child Welfare Act early in a child welfare case are not grounds to undo a later order ending a parent's rights, as long as that later case followed the law and didn't rely on the earlier one.

The decision spells out how the law's invalidation provision works. A parent can ask a court to undo the specific action that broke the law, the court said, but not a separate, later case in which no violations occurred.

Congress passed the Indian Child Welfare Act in 1978 after finding that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children." The law covers children who are members of a tribe, or eligible for membership and the child of a member. Before a court can order such a child into foster care, it requires clear and convincing evidence, including testimony from expert witnesses, that the parent's continued custody would likely cause the child serious harm. To end a parent's rights permanently, that harm must be proven beyond a reasonable doubt.

The case involves a Palmer father, identified in court records by the pseudonym Dash D., and his six children, all enrolled members of a tribe. One turned 19 before trial and was not covered by the termination order.

The Office of Children's Services took emergency custody of the children in December 2020. Caseworkers found a broken septic system and a backed-up toilet, and the children said they went to bed without food. The father tested positive for THC, methamphetamine and opioids, though he denied using drugs. OCS first tried a safety plan with the children's paternal grandmother, but it did not work, and the children were later placed with their aunt.

The father refused to take part in the activities in his case plan and made no progress on it, according to the opinion. After a nine-day trial that ended in May 2025, a Palmer judge ended his parental rights to five of the children. A cultural expert testified at trial that, given the tribe's values and child-rearing practices, his continued custody would likely cause the children serious harm.

On appeal, the father, who represented himself, did not challenge any of the judge's findings, including that he abandoned the children. Instead, he argued that OCS and the court broke ICWA in the case's early stages. He said he didn't get a lawyer until after the first custody rulings, and that the court ordered the children's removal based on their mothers' agreement, not his, without the expert testimony the law requires.

The Supreme Court found that OCS followed the law when it first removed the children in an emergency. It did not decide whether the custody rulings that followed broke ICWA. It said the trial court "perhaps" should have required the state to lay out its evidence before issuing an August 2021 removal order, when the father was absent and his lawyer couldn't take a position. But even if there were errors, Justice Dario Borghesan wrote, the law does not reach "a later separate action in which no violations of ICWA occurred," and the father had not shown the termination relied on the earlier rulings.

The court also rejected his claim that he was denied the state's case records, noting the trial court had ordered OCS to resend them several times. It rejected his argument that the children should have gone to their grandmother instead of their aunt, a top-preference placement, saying the invalidation provision does not cover placement decisions.

The ruling follows a 1985 Alaska Supreme Court decision, which relied on a 1984 Montana Supreme Court ruling. Both held that problems in temporary custody proceedings did not invalidate a later termination.

In July, the court reversed a Native mother's termination because the state's cultural testimony at her trial was too general.