Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).