DJ v. PC, S-9470.

• Decision Date: 05 December 2001
• Docket Number: No. S-9470.,S-9470.
• Citation: 36 P.3d 663
• Parties: D.J., Appellant, v. P.C., Appellee.
• Court: Alaska Supreme Court

36 P.3d 663

D.J., Appellant, v. P.C., Appellee.

No. S-9470.

Supreme Court of Alaska.

December 5, 2001.

Alex Koponen, Fairbanks, for Appellant.

Daniel L. Callahan, Schendel & Callahan, Fairbanks, for Appellee.

Before: FABE, Chief Justice, and MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

OPINION

MATTHEWS, Justice.

I. INTRODUCTION

D.J., currently serving a twenty-year sentence, appeals from a superior court order terminating his parental rights to his son J. D.J. argues that the superior court erred in granting summary judgment to J.'s grandmother, P.C., who petitioned to adopt J. D.J. alleges three errors by the superior court: first, that the court erred by granting summary judgment on the question of whether he was unreasonably withholding his consent to J.'s adoption; second, that the court erred in determining that the Indian Child Welfare Act¹ (ICWA) did not apply to the termination of his parental rights; and third, that the court erred by finding that the termination requirements of ICWA were satisfied. Because the superior court failed to apply ICWA correctly in terminating D.J.'s parental rights, we vacate the termination and remand for proceedings consistent with ICWA.

II. FACTS AND PROCEEDINGS

J. was born May 16, 1992, to F.C. and D.J. J. is an Indian child as defined by the Indian Child Welfare Act of 1978.² His mother is a member of the Devil's Lake or Spirit Lake Sioux Tribe in North Dakota. His father is a member of the Native Village of Barrow. In 1995 J.'s mother placed him with her mother, P.C., who had been helping to care for J. since his birth. Since that time, J. has been in the exclusive care of P.C. P.C. is also a member of the Devil's Lake or Spirit Lake Sioux Tribe.

J.'s father, D.J., is currently incarcerated at the Spring Creek Correctional Facility, where he is serving a twenty-year sentence for attempted murder. He was sentenced on December 5, 1997. D.J. has never resided with his son, nor has he ever had unsupervised custody of J. D.J. has a long history of criminal activity, convictions, and incarceration.

In March 1996 P.C. petitioned the superior court to approve her adoption of J.J.'s mother consented to the adoption in early April 1996. The court issued a notice of dismissal of the adoption petition for lack of prosecution on January 8, 1999. P.C. objected to dismissal, claiming that she had sought but was unable to obtain D.J.'s consent to her adoption of J.

In May 1999 an adoption hearing was held. D.J. participated via telephone from Spring Creek Correctional Facility. He objected to P.C.'s adoption of J. and requested the appointment of counsel. Counsel was appointed to represent him on June 10, 1999, and trial was scheduled for October 7-8, 1999.

On June 28, 1999, P.C. filed an amended petition for adoption indicating that she was married to Mr. S. and that in May 1999 J.'s mother had again consented to the adoption. On August 19, 1999, P.C. filed a motion for summary judgment, arguing that D.J.'s consent to her adoption of J. was not necessary and that his parental rights could be terminated under AS 25.23.180(c)(2)³ and 25 U.S.C. §§ 1901-1963.⁴ In her memorandum in support of summary judgment, P.C. claimed that she had cared for and supported J. for his entire life and had done so exclusively since December 1995. She also asserted that J.'s mother and father had never married and "there was never a custody or visitation order entered between them related to the child." She alleged that D.J. had never enjoyed a meaningful relationship with his son, never had custody of him, had only visited with J. a few times during the child's life, and had never cared for the child overnight or even had exclusive care of the child for a short visit. She asserted that "[t]he child has no meaningful relation to [D.J.] except to know [D.J.] is his father."

P.C. argued that D.J.'s withholding consent to her adoption of J. was unreasonable in light of the fact that he never had any parental involvement with J. and will spend J.'s childhood incarcerated. She argued that his continued incarceration and unavailability ever to parent J. during his childhood render D.J.'s refusal to consent to her adoption of J. unreasonable. P.C. supported her motion with her own affidavit and D.J.'s criminal record.

D.J. filed a letter with the court on August 23, 1999, alleging that his attorney failed to answer his calls, hung up on him, and did not perform any work on his case.⁵ On September 16, 1999, J.'s guardian ad litem filed his report with the court, stating that the adoption was in the child's best interest and that D.J.'s refusal to give consent was not in the child's best interests. The guardian ad litem noted that D.J. had told him that he did not object to J. living with P.C., but that he did not want her to adopt J. The guardian ad litem suggested that leaving J. in legal "limbo" was contrary to the child's best interests.

D.J. was appointed a new attorney on October 8, 1999. His new attorney encountered difficulty obtaining permission from the prison to speak with D.J., but was able to file a response to P.C.'s motion for summary judgment on October 21, 1999. That response indicated D.J.'s opposition to summary judgment on the grounds that he believed P.C.'s husband was an alcoholic and a sexual predator and that therefore his refusal to consent to P.C.'s adoption of J. was reasonable. He asserted that his allegations raised questions of material fact regarding both the reasonableness of his refusal to consent to adoption and J.'s best interests, which precluded summary judgment. D.J. did not file any affidavits or other admissible evidence in support of his opposition to summary judgment.

On November 5, 1999, the standing master filed her report, recommending that the superior court determine whether the issue of a parent unreasonably withholding consent to adoption was susceptible to summary judgment, and if so, to find in favor of P.C. The master recommended, in the alternative, that the superior court permit D.J. sufficient time to file affidavits or other admissible evidence in support of his opposition to summary judgment.

On November 29, 1999, the superior court granted summary judgment to P.C. The court found that there was no genuine issue of material fact as to whether D.J.'s parental rights could be terminated under AS 25.23.180(c)(2). The court found that D.J. does not have custody of J. and that D.J. was unreasonably withholding his consent to P.C.'s adoption of J. and concluded that D.J.'s parental rights could be terminated. The court also found that there was no issue of material fact concerning whether D.J.'s parental rights could be terminated under ICWA. The court found that P.C. was J.'s Indian custodian for purposes of ICWA⁶ and that, therefore, § 1912 of ICWA did not apply to the termination of D.J.'s parental rights. The court found, in the alternative, that if § 1912 did apply, the evidence showed beyond a reasonable doubt that J. would suffer serious emotional or physical harm if D.J. continued to have custody of him, and that § 1912(d)⁷ had been complied with "to the extent necessary, under the circumstances of this case." The summary judgment order terminated D.J.'s parental rights to J. On December 17, 1999, the standing master heard P.C.'s adoption petition. D.J. was precluded from participating because his parental rights had been terminated. The superior court left it to the guardian ad litem to investigate the suitability of P.C.'s home in light of D.J.'s assertions that P.C.'s husband posed a threat to J.

D.J. now appeals.

III. STANDARD OF REVIEW

Issues not raised in the trial court shall not be considered on appeal, except for plain error.⁸ Plain error exists "where an obvious mistake has been made which creates a high likelihood that injustice has resulted."⁹

This court reviews a trial court's grant of summary judgment de novo.¹⁰ Summary judgment is appropriate "only if the record presents no genuine issues of material fact and the moving party was entitled to judgment on the law applicable to the established facts."¹¹ Where the parties dispute the facts, the non-movant's version is presumed correct.¹² All reasonable factual inferences must be drawn in favor of the non-movant.¹³

Whether ICWA applies to a proceeding is a question of law to which this court applies its independent judgment.¹⁴ This court will "adopt the rule of law that is most persuasive in light of precedent, reason and policy."¹⁵

IV. DISCUSSION

A. The Superior Court Did Not Err in Granting Summary Judgment on Whether D.J. Unreasonably Withheld His Consent to J.'s Adoption.

1. It was not plain error for the court to fail to extend the deadline for D.J. to respond to the summary judgment motion.

D.J. contends that he was not granted sufficient time to respond to P.C.'s motion for summary judgment. This issue was not raised in the trial court. As such, we review D.J.'s argument only for plain error.¹⁶

D.J. points out that his second attorney was appointed just prior to the trial setting conference held on October 20, 1999, and shortly before his response to P.C.'s motion for summary judgment was due. He suggests that he did not have time to oppose summary judgment effectively and that the court erred in failing to grant him more time.

In view of the circumstances, however, it was not plain error for the court to fail to extend, sua sponte, the deadline for D.J. to respond to the motion for summary judgment. Although it appears that D.J. did not receive adequate representation from his first court-appointed attorney, he was appointed substitute counsel, who represented to the court that he would timely file a response to the motion for summary judgment, and in fact did so one day before the response was due. D.J. did not include any affidavits or other evidence in his response to summary judgment, nor did he request an extension. He does not argue...