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Evans v. Native Village of Selawik IRA Council (2/28/2003) sp-5669
Evans v. Native Village of Selawik IRA Council (2/28/2003) sp-5669
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN EVANS, SR., SOPHIA )
EVANS, and JOHN EVANS, JR., ) Supreme Court No. S-10646
)
Petitioners, )
)
v. ) Trial Court No.
) 2KB-99-154 CI
NATIVE VILLAGE OF SELAWIK )
IRA COUNCIL, FRED DAVIS and )
DORIS DAVIS, and KATHLEEN ) O P I N I O N
GREIST, )
)
Respondents. ) [No. 5669 - February 28, 2003]
)
Petition for Hearing from the Superior Court
of the State of Alaska, Second Judicial
District, Kotzebue, Richard Erlich, Judge.
Appearances: Kneeland Taylor, Anchorage, for
Petitioners. Aaron M. Schutt, James E.
Torgerson, Heller, Ehrman, White & McAuliffe,
LLP, Anchorage, for Respondent Native Village
of Selawik IRA Council. Russell A. LaVigne,
Jr., Alaska Legal Services Corp., Kotzebue,
for Respondents Fred and Doris Davis. Chris
Provost, Assistant Public Advocate, Brant
McGee, Public Advocate, Anchorage, for
Respondent Kathleen Greist. Christine S.
Schleuss, Suddock & Schleuss, Anchorage, for
K.D. Ethan G. Schutt, Julie L. Webb, Tanana
Chiefs Conference, Inc., Fairbanks, for
Amicus Curiae Tanana Chiefs Conference, Inc.
Donald Craig Mitchell, Anchorage, for Amicus
Curiae Legislative Council of the Alaska
State Legislature.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
PER CURIAM
K.D. was born on October 8, 1998. His parents, John
Evans, Jr., and Kathleen Greist, were not married. Greist is a
member of the Native Village of Selawik; Evans is a member of the
Native Village of Kotzebue. Greist gave K.D. to Doris and Fred
Davis immediately after he was born. The Davises are also
members of the Native Village of Selawik and Greist's intent was
to accomplish a cultural adoption.1
According to Evans, he visited K.D. a few times.2 On
other occasions Evans made efforts to contact K.D. through the
Davises; these efforts were rebuffed. From March 14, 1999, until
November 1, 1999, Evans was incarcerated.
On November 23, 1999, Evans filed the present action
seeking a determination of paternity, an order establishing his
custody rights, and an award of primary custody to his parents.
On January 15, 2000, the Davises allowed Evans and his parents to
take K.D. for the afternoon. For reasons that are contested,
they did not return him. In response, the Davises obtained a
restraining order against Evans on January 20, 2000. Four days
later, on January 24, 2000, the Native Village of Selawik passed
a resolution at the Davises' request recognizing the adoption of
K.D. by the Davises and requesting that the state issue a new
birth certificate reflecting the adoption. Evans received no
notice of the pendency of the adoption resolution.
Evans's parents, John Evans, Sr., and Sophia Evans,
intervened as plaintiffs and the Native Village of Selawik
intervened as a defendant in this action. The Evanses moved for
partial summary judgment seeking an order declaring that
Selawik's resolution of adoption would not be recognized.
Selawik cross-moved for partial summary judgment, seeking a
declaration that the adoption resolution was entitled to
recognition under comity principles. The superior court ruled
that Selawik's resolution could not be given effect if it was
issued in violation of Evans's due process rights, but that
Evans's due process rights were not violated by the January 24
resolution because he had failed to take timely action to protect
his rights.
The Evanses petitioned for review from the superior
court's order. We granted review, limited to the issue of
whether the adoption resolution was issued in violation of
Evans's constitutional right to due process. Having considered
the parties' briefs and oral argument, we conclude that Evans's
due process rights were violated and that it would therefore be
error to afford comity to the adoption resolution.
Notice to an unwed father of the proposed adoption of
his child is required by statute3 and by the adoption rules.4
This notice is required regardless of whether the father has
taken actions that assert his parental rights and
responsibilities.5 The statutory and rule requirement of notice
is constitutionally based. We have recognized that the "interest
of a parent whose parental rights may be terminated via an
adoption petition is of the highest magnitude,"6 and that notice
and an opportunity to be heard are essential elements of due
process under the Alaska Constitution.7 While it is possible
that an unwed father may by inaction with respect to his child
over a lengthy period waive his constitutionally protected right
to notice of the child's adoption, there is not in this case
either inactivity or a sufficiently long time period that could
justify a waiver. When Selawik issued its adoption resolution
Evans had already filed suit seeking an order adjudicating his
paternity and custody rights and placing K.D. with his parents.
Before he filed suit he had visited with the child on a few
occasions and unsuccessfully sought visitation on others.
In John v. Baker we held that certain tribal court
judgments would be entitled to recognition in Alaska courts under
principles of comity.8 We stated that "state courts should
afford no comity to proceedings in which any litigant is denied
due process" and we stressed that essential to due process was
"whether the parties received notice of the proceedings and
whether they were granted a full and fair opportunity to be heard
before an impartial tribunal that conducted the proceedings in a
regular fashion."9 Because Selawik did not provide Evans with
notice prior to the resolution of adoption, Evans has been denied
due process and the resolution is not entitled to comity
recognition.
We therefore remand this case to the superior court
with instructions to adjudicate the claims of the parties
relating to the custody and visitation of K.D. The court should
not afford comity to the resolution recognizing the attempted
cultural adoption, rather the adjudication must be made in light
of the facts concerning the best interests of the child as they
currently exist. The adjudication must be made under Alaska law,10
and to the extent that the parties seeking custody are not the
parents of K.D., under the Indian Child Welfare Act.11
For the reasons stated the order of the superior court
on cross-motions for summary judgment is REVERSED and this case
is REMANDED for further proceedings in accordance with this
opinion.
_______________________________
1Adoptions under tribal custom are recognized by the State Bureau
of Vital Statistics when standards defined by a departmental
regulation are met. See 7 AAC 05.700; Hernandez v. Lambert, 951
P.2d 436, 441 (Alaska 1998). A parent's assertion of custody is
a disqualifying condition under the regulation. See 7 AAC
05.700(b)(3)(B).
2The exact number of visits are contested, but the Davises
acknowledge visits on October 12, 1998, November 9, 1999, and
November 10, 1999.
3AS 25.23.100(a)(3).
4Alaska Adoption Rule 10.
5See AS 25.23.100(a)(2) and (3); AS 25.23.040(2); AS 25.23.050.
6In re K.L.J., 813 P.2d 276, 279 (Alaska 1991).
7City of North Pole v. Zabeck, 934 P.2d 1292, 1297 (Alaska 1997);
Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998).
8982 P.2d 738, 763 (Alaska 1999).
9Id.
10See, e.g., AS 25.20.060; Turner v. Pannick, 540 P.2d 1051
(Alaska 1975).
1125 U.S.C. 1901 et seq.; John v. Baker, 982 P.2d at 747 (ICWA
does not apply to custody disputes between unmarried parents).
