329 P.3d 995 (Alaska 2014), S-14103, Simmonds v. Parks

Docket Nº:S-14103, 6926
Citation:329 P.3d 995
Opinion Judge:FABE, Chief Justice.
Party Name:ROZELLA SIMMONDS and JEFF SIMMONDS, Petitioners, v. EDWARD PARKS and BESSIE STEARMAN, Respondents, and STATE OF ALASKA, Intervenor-Respondent
Attorney:Erin C. Dougherty, Natalie A. Landreth, Heather Kendall-Miller, and Matthew N. Newman, Native American Rights Fund, Anchorage, for Petitioners. Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, for Respondent Parks. Michael J. Wenstrup, Fairbanks, for Respondent Stearman. Mary Ann Lundquist, S...
Judge Panel:Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
Case Date:July 18, 2014
Court:Supreme Court of Alaska
 
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Page 995

329 P.3d 995 (Alaska 2014)

ROZELLA SIMMONDS and JEFF SIMMONDS, Petitioners,

v.

EDWARD PARKS and BESSIE STEARMAN, Respondents,

and

STATE OF ALASKA, Intervenor-Respondent

Nos. S-14103, 6926

Supreme Court of Alaska

July 18, 2014

Page 996

[Copyrighted Material Omitted]

Page 997

Petition for Review from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. Superior Court No. 4FA-09-02508 CI.

Erin C. Dougherty, Natalie A. Landreth, Heather Kendall-Miller, and Matthew N. Newman, Native American Rights Fund, Anchorage, for Petitioners.

Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, for Respondent Parks.

Michael J. Wenstrup, Fairbanks, for Respondent Stearman.

Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, Julie Fields and Jacqueline Schafer, Assistant Attorneys General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Intervenor-Respondent.

Marguerite Humm, Holly Handler, and Sydney Tarzwell, Alaska Legal Services Corporation, Anchorage, for Amici Curiae Kenaitze Indian Tribe, Native Village of Eek, Stony River Traditional Council, Native Village of Mekoryuk, Umkumiut Tribal Council, and Tuntutuliak Traditional Council.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

FABE, Chief Justice.

Page 998

I. INTRODUCTION

The Minto Tribal Court terminated the parental rights of Edward Parks and Bessie Stearman to their daughter S.P. At the termination hearing, the attorney for Parks and Stearman was not permitted to present oral argument to the tribal court. Parks failed to file an appeal with the Minto Court of Appeals and instead brought suit against S.P.'s foster parents, the Simmondses, in the state superior court in an attempt to regain custody of S.P. The Simmondses moved to dismiss Parks's state lawsuit on the basis that the tribal court judgment terminating parental rights was entitled to full faith and credit under the Indian Child Welfare Act. The superior court denied the motion to dismiss, concluding that full faith and credit should not be afforded because the tribal court had denied Parks minimum due process by prohibiting his attorney from presenting oral argument on his objections to tribal court jurisdiction based on his status as a non-tribal member. Although the superior court recognized that oral argument is not a per se requirement of minimum due process, the superior court concluded that the denial of oral argument in this case deprived Parks of a meaningful opportunity to be heard because Parks did not receive sufficient notice that his attorney would not be allowed to present oral argument to the tribal court.

The Simmondses petitioned this court for review. We remanded to the superior court for further findings. On remand, the superior court reiterated its prior conclusion of a violation of minimum due process and further

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concluded that the due process error was not harmless because Parks's objections to the Minto Tribal Court's jurisdiction might have had merit. The Simmondses brought a second petition for review, and we again granted review. Because Parks failed to exhaust his remedies in the Minto Court of Appeals, we conclude that his state court suit should have been dismissed. We thus reverse the superior court's decision and remand for dismissal of Parks's suit.

II. FACTS AND PROCEEDINGS

A. Tribal Affiliations Of S.P. And Her Parents

This petition is the culmination of almost six years of litigation involving custody of S.P., the parental rights of her parents, Edward Parks and Bessie Stearman, and the jurisdiction of the Minto Tribal Court. Stearman is a member of the Native Village of Minto, a federally recognized tribe in Minto, Alaska.1 She was raised and resided in Minto until 2001. Parks is an enrolled member of the Native Village of Stevens, a federally recognized tribe in Stevens Village, Alaska.2 Parks is not a member of the Native Village of Minto and has never lived in or been a resident of Minto.

The Minto Tribal Constitution provides that lineal descendants of tribal members are " automatically eligible to be members of the Minto Tribe," and the Minto Tribal Court concluded on a number of occasions that " [u]nder the tribal constitution of Minto [S.P.] is a Minto tribal member under the jurisdiction of the Tribal Court and eligible to apply for enrollment." In November 2008, during the course of the Minto Tribal Court's custody proceedings, S.P. was formally enrolled in the Native Village of Minto after Stearman submitted a tribal enrollment application on her behalf.

B. The Minto Tribal Court Took Emergency Custody Of S.P.

S.P. was born in December 2007 in Fairbanks. S.P.'s mother, Bessie Stearman, has a history of substance abuse and arrests, and her three older children, S.P.'s half-siblings, were in Minto Tribal Court custody prior to S.P.'s birth. On December 7, 2007, Mishal Gaede, a tribal social worker in the Child Protection Services Department of the Tanana Chiefs Conference,3 received a phone call from a screener from the Office of Children's Services (OCS) asking her if she would be willing to meet an OCS staff member and Stearman at Fairbanks Memorial Hospital to develop a safety plan for S.P. Gaede, who had previously contacted the Minto Tribal Court regarding Stearman's pregnancy, agreed to meet with the OCS staff member and Stearman. During the meeting, Gaede informed Stearman of the Minto Tribal Court's concern about S.P.'s safety given Stearman's history and the domestic violence history of Edward Parks, S.P.'s presumed father.

On May 30, 2008, Stearman contacted Rozella Simmonds and asked if she and her husband, Jeff Simmonds, would care for S.P., then six months old, while Stearman was incarcerated for violating probation. Jeff Simmonds is Stearman's first cousin and is eligible for enrollment in the Native Village of Minto. The Simmondses agreed, and Rozella informed Gaede of the arrangement.

On June 2, 2008, Gaede informed the Minto Tribal Court of the situation via teleconference, and the tribal court took emergency temporary legal custody of S.P., made her a ward of the court, and temporarily granted physical custody to the Simmondses. Parks and Stearman were granted supervised visits with S.P. at the Tanana Chiefs Conference office in Fairbanks.

Parks was working on the North Slope and was not contacted prior to the June 2, 2008

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emergency hearing. The day after the hearing, Gaede spoke with Parks and mailed the emergency custody order to Parks's employer in Prudhoe Bay. On June 6 Parks called Gaede to ask for his daughter back; Gaede informed him that she was in the Simmondses' custody and that he could petition the tribal court for an earlier hearing or to arrange visitation with S.P. Parks called back later that day and indicated that he and Stearman were " okay" with S.P. being with the Simmondses for the time being.

C. Parks Was Notified Of The Minto Tribal Court's Second Hearing On Custody Of S.P., But He Did Not Attend.

The Minto Tribal Court held another hearing regarding temporary custody of S.P. on July 9, 2008. Stearman, Rozella Simmonds, Gaede, and Evelyn Parks, Edward Parks's mother, were present via teleconference. The tribal court records from this hearing indicate that Stearman was given written notice of the hearing, was present at the hearing, and testified about her incarceration and rehabilitation efforts. Edward Parks was also given written notice of the hearing, but he was not present. The tribal court's contemporaneous notes indicate that Parks was sick and " home in bed." His mother, Evelyn, did address the tribal court, asking that S.P. be placed in her custody while Stearman was incarcerated; she also stated that Edward Parks had supported S.P. and questioned why she had not been contacted to take S.P. The tribal court informed her that she needed to complete a foster care application and a home safety check prior to placement, per tribal foster care policy and federal regulations; she was given an application. The notes also indicated that the tribal court would notify Stevens Village as a courtesy.

The Minto Tribal Court's order reiterated the court's jurisdiction over S.P. The tribal court found that Parks's residence in Fairbanks was unsuitable for an infant; that it was in S.P.'s best interests for the tribal court to continue temporary legal custody; and that it was in her best interests for the Simmondses to continue temporary physical custody. The tribal court required that Stearman continue with her rehabilitation efforts and that Parks obtain an anger management assessment, follow its recommendations, and prepare safe, suitable housing for an infant.

D. The Minto Tribal Court Held Its Third Hearing. Parks Attended, Participated, And May Have Objected To The Court's Jurisdiction.

The Minto Tribal Court held a hearing on temporary custody of S.P. on August 28, 2008, in which Parks participated telephonically after receiving written notice. Parks stated that he wanted his daughter back; the tribal court's order stated that while Parks agreed with the current foster placement, he thought S.P. could be cared for just as properly by his relatives in Anchorage. He also testified about a recent incident with the Fairbanks police and about an arrest warrant for a January 2008 domestic violence incident with Stearman. The tribal court issued an order continuing the temporary custody arrangements and repeating its requirement that Parks obtain and follow the recommendations of an anger management assessment, prepare a suitable home, and complete parenting classes.

Parks claims...

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