Matter of Petition of Phillip A.C.
| Decision Date | 28 December 2006 |
| Docket Number | No. 45119.,45119. |
| Citation | 149 P.3d 51 |
| Parties | In the Matter of the Petition of PHILLIP A.C., II, for Adoption of A Minor Child. Phillip A.C., II, Appellant, v. Central Council of the Tlingit and Haida Tribes of Alaska; and Tarah K., a/k/a Tarah L.K., Respondents. |
| Court | Nevada Supreme Court |
Brian R. Morris, Reno, for Appellant.
Nevada Legal Services and Raymond Rodriguez, Carson City, for Respondents.
Before the Court En Banc.
In this case, we consider issues involving the adoption of Native American children under the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-63. Specifically, we address the type of evidence that may be used to determine whether a child is a Native American child under the ICWA and whether a Native American tribe has independent standing under the Act to challenge the voluntary adoption of a Native American child.
We conclude that a tribal enrollment officer's affidavit may be used to establish that a child is a Native American child and subject to the ICWA and that a Native American tribe has independent standing under the ICWA to challenge the voluntary adoption of a Native American child.
However, because the adoptive parent in this case was not given an opportunity to rebut the enrollment officer's affidavit, we reverse the district court's order vacating the adoption and remand the matter to the district court to permit the adoptive parent to present evidence to rebut the enrollment officer's statements regarding the child's tribal status under the ICWA.
After holding an adoption hearing, the district court granted appellant Phillip A.C. II's petition to adopt then two-year-old Z.R.K., the child of Phillip's ex-stepdaughter, respondent Tarah K. Phillip is not related to either Z.R.K. or Tarah by blood; rather, he was formerly married to Tarah's mother.1 Two written consents to the termination of parental rights and adoption supported Phillip's petition: one signed by Tarah and another signed by Z.R.K.'s father. Tarah did not appear at the adoption hearing.
Soon after the district court granted the order of adoption, Tarah contacted the Central Council of the Tlingit & Haida Indian Tribes of Alaska (Council), seeking assistance in overturning the adoption. Tarah claimed that she had signed the adoption consent under extreme duress and that Phillip had prevented her from attending the subsequent adoption hearing through deception. The parties agree that ethnically, Tarah is 7/16ths Native American and Z.R.K. is 7/32nds Native American. They disagree, however, as to whether Z.R.K. is a Native American child under the ICWA.
Respondent Council filed a motion in the district court to intervene and invalidate Z.R.K.'s adoption, alleging violations of the ICWA. The Council also requested a hearing before the district court on the matter. Tarah attended the hearing and filed her own petition to vacate the adoption, which was assigned the same district court case number as the Council's motion. Nevada Legal Services represented both the Council and Tarah at the hearing.
Without formally ruling on the Council's motion to intervene,2 the district court concluded that the adoption proceeding had failed to comply with a provision of the ICWA, 25 U.S.C. § 1913(a), which requires that the judge certify that the parents' written consents were fully explained and understood by them. Under § 1913(a), a voluntary consent to termination of parental rights will only be valid when executed in writing and recorded before a judge of a court of competent jurisdiction, and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Native American custodian. Because the consents were not properly certified in this case, the district court conditionally vacated Z.R.K.'s adoption pending proof that Z.R.K. was a Native American child and therefore subject to the ICWA.
Subsequently, Nevada Legal Services submitted a number of documents from the Council that purported to show that Tarah was a member of a Native American tribe and that Z.R.K. was eligible for membership. Phillip objected to these documents because they allegedly did not conform to the rules of evidence.
In the interim, an unspecified single "petitioner" filed a "Notice of Judgment [of voluntary] Dismissal" under NRCP 41(a).3 Significantly, the voluntary dismissal did not specify whether Tarah or the Council had filed it. An attorney from Nevada Legal Services signed the notice. Without specifically resolving the ambiguous voluntary dismissal, the district court entered an order in which it concluded that the documents offered by the Council relating to Tarah's and Z.R.K.'s tribal memberships did not meet the affidavit requirements of NRCP 56(e).4 However, the court provided the Council with an additional thirty days to submit proper affidavits and declared that Z.R.K.'s adoption would be invalidated once they were filed.
Consequently, the Council submitted the affidavit of its tribal enrollment officer, Valerie M. Hillman. In her affidavit, Ms. Hillman averred that (1) she had served as the tribal enrollment officer for fifteen years, (2) Tarah had been an enrolled member of the Tlingit & Haida Indian Tribes since 1989, (3) Z.R.K. was eligible for enrollment at the time of her adoption by Phillip on June 8, 2004, and (4) Z.R.K. had been an enrolled member of the tribes since February 16, 2005.
Shortly thereafter, the district court entered an order that vacated the adoption. In its order, the district court found that Z.R.K. was a Native American child to whom the ICWA applied and that the adoption proceedings had violated part of the ICWA, 25 U.S.C. § 1913(a), because no judicial certification had been entered. Phillip now appeals.
Phillip challenges three legal aspects of the proceedings below: (1) the district court's jurisdiction to consider the action after the filing of the voluntary dismissal, (2) the evidentiary foundation for Z.R.K.'s status as a Native American child, and (3) the Council's standing to intervene. We conclude that (1) the voluntary dismissal, if effective at all, only applied to Tarah's petition; (2) Ms. Hillman's affidavit was admissible to establish Z.R.K.'s status under the ICWA; and (3) the Council has standing to intervene and contest the validity of the adoption.
Phillip also contends that he was denied the opportunity to contest Ms. Hillman's authority to issue the affidavit and he should be given a chance to demonstrate that Ms. Hillman lacked authority to attest to Tarah's and Z.R.K.'s tribal status. We agree and therefore reverse the order vacating the adoption and remand this matter to the district court so that Phillip may present any evidence regarding Ms. Hillman's authority before the district court issues a final ruling on the validity of the adoption.
The district court did not lack jurisdiction to consider the Native American tribe's motion to intervene and invalidate the adoption
Phillip argues that the district court lacked jurisdiction to vacate his adoption of Z.R.K. because, purportedly, both the Council and Tarah voluntarily dismissed their actions by filing a single voluntary dismissal under NRCP 41(a).
The Council acknowledges that Tarah voluntarily dismissed her petition but insists that it never dismissed its own motion to intervene. The Council claims that Tarah chose not to proceed because her petition had not been served, no responsive pleading had been filed, and the Council's petition would achieve the same ends.
NRCP 41(a)(1)(i) states that a plaintiff may dismiss an action upon repayment of the defendant's filing fees, without an order of the court, "by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs."
We conclude that the district court had jurisdiction to consider the Council's motion and that the Council was properly allowed to intervene because substantial evidence supports the district court's inferred finding that the ambiguous voluntary dismissal only applied to Tarah and not to the Council. We base our conclusion on two reasons.
First, the voluntary dismissal refers to a single "petitioner," not multiple "petitioners." Thus, in contrast to Phillip's position, the voluntary dismissal, by its own terms, only applies to one party, not two. Because the voluntary dismissal refers to a single "petitioner" and both parties agree that it applied to Tarah, Tarah was ostensibly the one and only "petitioner." We also note that Tarah filed a "petition," whereas the Council filed a "motion," which further suggests that Tarah was the dismissing petitioner.
Second, the Council's actions, both before and after the voluntary dismissal was filed, are totally inconsistent with such a filing. Before and after the voluntary dismissal was filed, the Council vigorously pursued its motion to intervene, actions inconsistent with a decision to voluntarily dismiss the motion.
The district court's decision to vacate the adoption indicates that it did not find that the voluntary dismissal applied to both petitioners. Based upon the above reasoning, we conclude that substantial evidence supports the inference that the voluntary dismissal applied only to Tarah and the district court did not abuse its discretion to permit the Council's intervention.5
Finally, as an independent ground for our conclusion that the voluntary dismissal did not affect the district court's jurisdiction over this case, we note that the voluntary dismissal was ineffectual as to both Tarah and the Council because it was filed at an advanced stage of the proceedings. We have recognized that "federal decisions involving the Federal Rules of Civil Procedure provide persuasive authority when this court examines its...
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...was detrimental to the best interests of the Native American child that the ICWA was designed to protect." In re Petition of Phillip A.C. , 122 Nev. 1284, 149 P.3d 51, 60 n.44 (2006). Similarly, the Alaska Supreme Court held that federal law did not force the conclusion that "invalid consen......
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