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Hernandez v. Lambert (1/2/98), 951 P 2d 436
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.
THE SUPREME COURT OF THE STATE OF ALASKA
LARRY HERNANDEZ, )
) Supreme Court No. S-7690
) Superior Court No.
v. ) 4FA-95-0583 CI
LOUISE LAMBERT, ) O P I N I O N
Appellee. ) [No. 4928 - January 2, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: Fleur L. Roberts, Law Offices of
Fleur L. Roberts, Fairbanks, for Appellant.
Christine A. McLeod, Andrew Harrington, and Robert K. Hickerson,
Alaska Legal Services Corporation, Fairbanks, for Appellee. Mark
Andrews and Michael Walleri, for Amicus Curiae Tanana Chiefs
Conference. Lloyd Benton Miller, Sonosky, Chambers, Sachse, Miller
& Munson, for Amicus Curiae Native Village of Tanana. Heather R.
Kendall, Native American Rights Fund, for Amicus Curiae Alaska
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
At issue here is the timeliness of a superior court
paternity action that conflicted with an adoption order issued by
an Alaska tribal court five years previously. The superior court
ruled that the tribal order was valid, that its issuance triggered
Alaska's one-year time limit on challenges to adoption decrees, and
that the paternity action was therefore time-barred. We agree that
the paternity action is time-barred but reach this conclusion
without deciding the validity of the tribal adoption order; we
conclude that, whatever its validity, when originally entered, the
order became legally cognizable upon the State's issuance of a new
certificate of birth ratifying it as an adoption by tribal custom.
I. FACTS AND PROCEEDINGS
On February 26, 1990, Sandra Joseph gave birth to a baby
boy, C.L., in Fairbanks. Joseph, who resided in Tanana, was
unmarried at the time and declined to name C.L.'s father on the
birth certificate. It is undisputed that Joseph was acquainted
with Larry Hernandez before she gave birth to C.L. and that she and
Hernandez had sexual relations at some time prior to the birth.
[Fn. 1] Joseph's relationship with Hernandez ended some time in
1989; Hernandez evidently left Tanana without learning of Joseph's
Several weeks after C.L.'s birth, Joseph gave custody of
her son to Louise and Russell Lambert, her sister and brother-in-
law. With Joseph's consent, the Lamberts petitioned for adoption
of C.L.; since Joseph, C.L., and Louise Lambert are all enrolled
members of the Native Village of Tanana, the Lamberts pursued the
adoption through the Tanana Tribal Court, which held a hearing on
their petition. The court sent Joseph notice of the hearing, but
she did not appear. Because Joseph declined to name her child's
father, the court listed the father's identity as unknown and made
no attempt at service.
On September 4, 1990, the tribal court issued an order
finding the proposed adoption to be in C.L.'s best interest. The
order terminated Joseph's parental rights, declared Russell and
Louise Lambert to be C.L.'s parents for all legal purposes, and
directed a new birth certificate to be issued reflecting the
adoption. That same day, the court forwarded notice of the
adoption to the Secretary of Interior's Office and dispatched to
the Alaska Department of Health and Social Services, Bureau of
Vital Statistics, a form entitled, "Report of Adoption Occurring
Under Tribal Custom." Upon receipt of the report, the Bureau of
Vital Statistics issued a new birth certificate, naming Russell and
Louise Lambert as C.L.'s parents.
Some two or three years later, in 1992 or 1993, while at
a party in Fairbanks, Hernandez encountered Joseph for the first
time since the end of their relationship. Joseph told Hernandez
that she had given birth to a child, and Hernandez surmised that
the child might be his. [Fn. 2]
More than a year later, on March 8, 1995, Hernandez
petitioned the superior court to determine if he was C.L.'s
biological father and, if in fact he was, to establish support,
custody, and visitation.
By then, the Lamberts had divorced, and Louise Lambert
had been awarded sole physical custody of C.L. Lambert moved to
dismiss Hernandez's petition, arguing that the case belonged in the
Tanana Tribal Court and that the superior court lacked subject
matter jurisdiction. Alternatively, Lambert moved for summary
judgment, arguing that the superior court was required to give full
faith and credit to the tribal adoption order. Lambert maintained
that Hernandez had no right to displace C.L.'s adoptive father and
that Hernandez's paternity action was in any event time-barred,
since it was filed more than one year after the tribal adoption
order was issued.
In opposition to Lambert's motion, Hernandez argued that
the superior court had exclusive jurisdiction over the issue of
C.L.'s paternity because tribal courts within Alaska are not
empowered to exercise jurisdiction in child custody cases.
Hernandez also asserted that the tribal adoption order was not
entitled to full faith and credit because it was issued without
notice to him, thereby violating his rights to equal protection and
due process. [Fn. 3]
Superior Court Judge Niesje J. Steinkruger granted
Lambert's motion for summary judgment. Finding that the tribal
order was a valid decree of adoption and was entitled to full faith
and credit, [Fn. 4] Judge Steinkruger concluded that Hernandez's
paternity action was foreclosed because Hernandez had "presented no
genuine issues of material fact regarding the validity of the
[tribal] adoption." Alternatively, Judge Steinkruger found that
Hernandez's petition was barred by AS 25.23.140(b), Alaska's one-
year statute of limitations governing challenges to adoption
decrees. Hernandez appealed.
On appeal, [Fn. 5] Hernandez argues that the 1990 tribal
adoption order violated his constitutional right to due process
[Fn. 6] because he was given no notice of the adoption proceeding.
Hernandez insists that the constitutionally flawed decree does not
deserve full faith and credit and does not preclude the superior
court from adjudicating the merits of his paternity action.
This argument, however, presents a threshold question of
timeliness. Since Hernandez's paternity action relies on his
assertion that the tribal adoption order is invalid for lack of
notice, and since the action was filed almost five years after the
adoption order was issued, we must inquire whether the paternity
action is barred by the time limit set out in AS 25.23.140(b).
This statute provides, in relevant part, that "upon the expiration
of one year after an adoption decree is issued, the decree may not
be questioned . . . in any manner upon any ground, including . . .
failure to give any required notice, or lack of jurisdiction of the
parties or of the subject matter[.]"[Fn. 7]
Hernandez asserts the tribal decree's invalidity based on
lack of notice; he further suggests that Joseph's failure to
disclose to the Tanana Tribal Court his identity as C.L.'s father
might have constituted a fraud. But lack of notice and fraud are
both specifically included in the statutory list of grounds that
become time-barred "upon the expiration of one year after an
adoption decree is issued[.]"[Fn. 8] Id. Hence, these grounds
provide no basis for relaxation of the statute. [Fn. 9]
Hernandez seeks to escape the clear language of the
statutory time bar by asserting that his paternity action is an
independent proceeding rather than a challenge to the tribal
adoption order. This assertion, however, is at odds with
Hernandez's primary argument that the tribal order is not entitled
to full faith and credit because it is constitutionally flawed.
Hernandez also observes that the Lamberts are now
divorced and that Louise Lambert has been awarded sole physical
custody of C.L. Given Russell Lambert's departure from the
adoptive household, Hernandez suggests that the paternity action is
not inconsistent with the tribal adoption order -- that there is
now room for a new father in C.L.'s life. However, the Lamberts'
divorce and the consequent award of physical custody to Louise
neither terminated Russell's parental rights and obligations nor
displaced him as C.L.'s adoptive father.
Hernandez lastly notes that the tribal adoption order did
not expressly terminate the parental rights of C.L.'s biological
father; Hernandez argues that, for this reason, his claim of
parental rights in the paternity action does not conflict with the
adoption order. Yet the adoption order's omission of specific
language terminating the parental rights of C.L.'s biological
father is of no particular consequence, since, even without express
termination language, the legal effect of the order was to "relieve
the natural parents of the adopted person of all parental rights
and responsibilities, and, . . . terminate all legal relationships
between the adopted person and the natural parents[.]" AS
25.23.130(a). In naming Louise and Russell Lambert as C.L.'s
parents, the adoption decree necessarily terminated any putative
biological father's rights. See Delgado v. Fawcett, 515 P.2d 710
This being the case, Hernandez's filing of a paternity
action that claimed parental rights as to C.L. unmistakably had the
effect of questioning the tribal adoption order; the paternity
action thus ran afoul of the statutory injunction that an adoption
decree "may not be questioned . . . in any manner upon any ground."
To be sure, this court's prior holdings indicate that the
Tanana Tribal Court lacked authority to issue a decree of adoption.
See In re F.P., 843 P.2d 1214 (Alaska 1992), cert. denied sub nom.
Circle Native Community v. Alaska Dep't of Health and Social Serv.,
508 U.S. 950 (1993); In re K.E., 744 P.2d 1173 (Alaska 1987);
Native Village of Nenana v. State, Dep't of Health and Human Serv.,
722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008 (1986).
These decisions raise the question of whether the Tanana Tribal
Court's adoption order should be deemed to be an "adoption decree"
within the meaning of AS 25.23.140(b), so as to trigger the one-
year period of limitation. Lambert nevertheless argues that even
if the Tanana Tribal Court lacked jurisdiction to issue an adoption
decree, the State of Alaska had authority to recognize the tribal
court's adoption order as a customary adoption of an Indian child.
Lambert contends that the State did just that by issuing a new
Alaska certificate of birth.
We find this argument persuasive. [Fn. 10] Under 7
Alaska Administrative Code (AAC) 05.700(a), the Bureau of Vital
Statistics is charged with authority to issue new certificates of
birth "for persons born in Alaska, upon adoption."[Fn. 11] Under
7 AAC 05.700(b) (1996), the Bureau's authority extends to Indian
adoptions that have "occurred under tribal custom." In the present
case, the Tanana Tribal Court sent the Bureau of Vital Statistics
a "Report of Adoption Occurring Under Tribal Custom"; the Bureau,
in accordance with 7 AAC 05.700(b), issued a new birth certificate
naming the Lamberts as C.L.'s parents. The effect of the Bureau's
action was to ratify the tribal adoption proceeding and imbue the
tribal court's order with sufficient legal color to warrant its
treatment as "an adoption decree"within the meaning of AS
Hernandez's case thus falls squarely within the letter
and spirit of the statutory time bar. Adoptive custody results in
the rapid development of lasting and powerful psychological ties
between adoptive parents and children, especially young children.
Once formed, these bonds can seldom be severed without irreparable
damage to the child's well-being. In terms of this potential harm,
it matters little whether the adoptive relationship arises by
formal decree or through tribal custom. Alaska's stringent one-
year limit on challenges to adoption decrees stands as testament to
this practical reality. As we said in In re T.N.F., 781 P.2d 973,
980 (1989), cert. denied sub nom. Jasso v. Finney, 494 U.S. 1030
To allow collateral attacks on final adoption
decrees at any time threatens to unreasonably disrupt the
upbringing of the adopted child. AS 25.23.140 is a strong policy
statement by the Alaska Legislature that an adoption decree should
not be challenged on any ground after one year.
Hernandez's case poses precisely this kind of threat.
Hernandez made no effort to claim paternity or have contact with
C.L. until almost five years after the Lamberts became C.L.'s
adoptive parents; by the time Hernandez's paternity action was
filed, well over a year had passed since he was told of C.L.'s
birth and actually realized that C.L. might be his son. Even if we
assume that AS 25.23.140(b)'s one-year limit did not begin to run
until Hernandez actually became aware of his potential claim to
parental rights, his paternity action would be well beyond the
allowable time for filing. [Fn. 12]
Alaska's one-year filing limit embodies a careful balance
between competing interests: on one hand, the interest of
preserving "stability in a family relationship, particularly when
a young minor is involved"; on the other hand, the interest of
avoiding "the possible loss to a person whose rights are cut off
through fraud or ignorance." Unif. Adoption Act 15, 9 U.L.A.
102-03 cmt. (1988). Here, the balance tips decidedly against
Hernandez. Any interest Hernandez might once have had in claiming
parental rights to C.L. has clearly not been cut off through fraud
or ignorance, but rather through neglect and delay. [Fn. 13]
The Superior Court's order granting summary judgment is
The parties agree that Joseph and Hernandez had sexual
relations. Although Hernandez claims that he and Joseph "lived
together for several years,"we find nothing in the record to
support the claim. Joseph has expressly denied having sexual
relations with Hernandez during the period of time when C.L. was
According to Hernandez, Joseph showed him a picture of C.L.;
after both agreed that C.L. "might look like"Hernandez, Joseph
told Hernandez that he was C.L.'s father. Joseph's account of the
conversation differs: she denies informing Hernandez that C.L. was
his child. Joseph claims that she in fact knows C.L.'s father to
be another man.
Hernandez initially asked the court to order DNA testing to
establish his paternity and to delay consideration of the dismissal
and summary motions pending completion of the tests. The superior
court denied this request, explaining that "[t]he jurisdictional
issue and legal issue of whether this action can proceed or the
tribal adoption has finality is not dependent on DNA testing."
Judge Steinkruger acknowledged this court's decisions holding
that Alaska's tribal courts lack jurisdiction in child custody
cases. See In re F.P., 843 P.2d 1214 (Alaska 1992), cert. denied
sub nom. Circle Native Community v. Alaska Dep't of Health and
Social Services, 508 U.S. 950 (1993); In re K.E., 744 P.2d 1173
(Alaska 1987); Native Village of Nenana v. State, Dep't of Health
and Human Serv., 722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S.
1008 (1986). The judge nevertheless found these cases superseded
by recent developments in the federal arena, particularly the
Department of Interior's publication in 1995 of a notice listing
various Alaska Native villages, including the Native Village of
Tanana, as Indian tribes, see Indian Entities Recognized and
Eligible to Receive Services From the United States Bureau of
Indian Affairs, 60 Fed. Reg. 9250 (1995). Concluding that the
Tanana Tribal Court was now empowered to assert jurisdiction over
adoptions, the judge found that the 1990 tribal adoption order was
entitled to full faith and credit under 25 U.S.C. 1911(d). The
judge alternatively concluded that, even if the tribal court lacked
formal jurisdiction, its order would be entitled to full faith and
credit under AS 25.23.160, which requires that "[a] decree of court
. . . establishing the relationship by adoption issued under due
process of law by a court of any other jurisdiction within or
outside of the United States shall be recognized in this state."
Rulings on summary judgment are subject to de novo review and
may be affirmed on grounds different than those advanced by the
trial court. James v. McCombs, 936 P.2d 520, 523 n.2 (Alaska
See U.S. Const. amend. XIV; Alaska Const. art. 1, 7.
The full text of AS 25.23.140(b) is as follows:
Subject to the disposition of an
appeal, upon the expiration of one year after an adoption decree is
issued, the decree may not be questioned by any person including
the petitioner, in any manner upon any ground, including fraud,
misrepresentation, failure to give any required notice, or lack of
jurisdiction of the parties or of the subject matter, unless, in
case of the adoption of a minor the petitioner has not taken
custody of the minor, or, in the case of the adoption of an adult,
the adult had no knowledge of the decree within the one-year
Hernandez does not argue, as he did below, that the Tanana
Tribal Court lacked jurisdiction over C.L.'s adoption. Even if he
did make this argument, it would have no bearing on the
applicability of AS 25.23.140(b), since jurisdictional questions
are also listed in the statute as being covered by the time limit.
Hernandez does not challenge the validity of the time bar
itself. We note that AS 25.23.140(b) is virtually identical to
Uniform Adoption Act 15 and that similar statutes have
consistently withstood constitutional challenges in other juris-
dictions. See, e.g., Syrovatka v. Erlich, 608 F.2d 307, 310-11
(8th Cir. 1979), cert. denied, 446 U.S. 935 (1980) (finding statute
of limitations barred natural parents from contesting an adoption
where original notice to adoption proceeding failed due process
standards); Hogue v. Olympic Bank, 708 P.2d 605, 611 (Or. App.
1985), review denied, 715 P.2d 92 (Or. 1986) (finding that statute
finalizing adoption proceedings did not violate due process rights
even where the court issuing the adoption decree had defective
jurisdiction); see also In re Adoption of Lori Gay W., 589 P.2d
217, 220 (Okla. 1978), cert. denied, 441 U.S. 945 (1979) (citing
White v. Davis, 428 P.2d 909 (Colo. 1967)).
As we have already noted in footnote 4 above, Judge
Steinkruger undertook a reexamination of this court's decisions on
tribal jurisdiction, found them superseded, and thus concluded that
the Tanana Tribal Court's adoption order was a valid adoption
decree. Judge Steinkruger's alternative conclusion that
Hernandez's claim was time-barred likewise presumed that the tribal
order was a valid adoption decree and that its issuance thus
triggered the one-year time limit specified in AS 25.23.140(b).
Since we affirm the trial court's summary judgment order
on a legal ground different than that relied on below, we find no
occasion to reexamine our prior decisions. Cf. In re F.P., 843
P.2d 1214 (Alaska 1992), cert. denied sub nom. Circle Native
Community v. Alaska Dep't of Health and Social Serv., 508 U.S. 950
(1993). We similarly decline to consider whether the Tanana Tribal
Court's adoption order was entitled to full faith and credit under
The full text of 7 AAC 05.700 is as follows:
NEW CERTIFICATE OF BIRTH. (a) The bureau
shall establish a new certificate of birth,
upon proper request that such certificate be made, for persons born
in Alaska, upon adoption or legitimation and the submission of the
required documents and other necessary information as required by
the State Registrar; provided that such new certificate of birth
shall not be established in cases of adoption if such negative
request be received from the court decreeing the adoption, the
person himself if of legal age, or from the adoptive parents.
(b) When the adoption of an Indian child,
as defined in 25 U.S.C. 1903(4), has occurred under tribal custom
the state registrar will require the following documents and
information to issue a new certificate of birth:
(1) a statement, on a form provided by the
bureau, signed by each biological parent, unless one or both of the
parents is deceased, cannot be contacted through reasonable means,
or is an unwed father where paternity has not been acknowledged or
(A) identifying the child and the tribe of
the child, as defined in 25 U.S.C. 1903(5); and
(B) affirming that under tribal custom an
adoption has occurred;
(2) a request for a new birth certificate,
on a form provided by the bureau, signed by an adoptive parent; and
(3) a written statement, on a form provided
by the bureau, from the governing body of the child's tribe, as
defined in 25 U.S.C. 1903(5), affirming that:
(A) an Indian child has been adopted under
tribal custom; the statement must identify the child, each known
biological parent, and each adoptive parent;
(B) the tribe has not been informed of any
person or agency who is asserting a claim to custody under state or
(C) one of the adoptive parents is an
Indian, as defined in 25 U.S.C. 1903(3); and
(D) when one or both of the biological
parents cannot be located to provide the statement required by
(b)(1) of this section, the parent knew or had notice of the
adoption at the time it occurred, except in cases involving an
unwed father where paternity has not been acknowledged or
Some courts construing statutes of limitation similar to AS
25.23.140(b) have suggested that a discovery rule must be applied
to the commencement of the time limit in order to avoid potential
constitutional problems. See, e.g., In re Adoption of Lori Gay W.,
589 P.2d 217, 222 (Okla. 1978), cert. denied sub nom. Strouse v.
Winter, 441 U.S. 945 (1979); see also Sumter v. Allton, 648 S.W.2d
55 (Ark. 1983); Wade v. Geren, 743 P.2d 1070 (Okla. 1987). Since
Hernandez's action is barred under any interpretation of the Alaska
statute, we need not determine whether AS 25.23.140(b) is subject
to a discovery rule.
Our conclusion that Hernandez's paternity action was time-
barred makes it unnecessary for us to consider whether the tribal
adoption order violated Hernandez's right to due process.