Supreme Court No. S-13580 Superior Court Nos. 3PA-08-00145 PR 3PA-07-02189 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge.
The opinion of the court was delivered by: Winfree, Justice.
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, email firstname.lastname@example.org.
Before: Fabe, Winfree, Christen, and Stowers, Justices. [Carpeneti, Chief Justice, not participating.]
A biological father appeals from the termination of his parental rights and an adoption decree, arguing it was error for the trial court to (1) fail to apply certain protections available to him under the Indian Child Welfare Act (ICWA) and (2) find his consent to the adoption unnecessary under state law. We vacate the trial court's determination that the child is not an Indian child under ICWA because it is not explained in the court's written decision why, after the parties to the proceeding took the position that the child is an Indian child and that this was an ICWA adoption, the trial court sua sponte found and relied on a proof deficiency without giving the father notice and opportunity to address it. We also reverse the trial court's determinations that (1) the father's efforts to obtain custody through the courts were not justifiable cause for his failure to meaningfully communicate with the child during the first year of the child's life, and (2) the evidence in the record of the father's indigence did not meet his burden of production regarding justifiable cause for his failure to support the child during that year. We therefore vacate the termination of the father's parental rights and the adoption decree and remand for further proceedings on the child's status as an Indian child, possible ICWA protections available to the father, and whether the father unjustifiably failed to support the child during the first year of the child's life.
II. FACTS AND PROCEEDINGS
A. Timothy's First Year of Life*fn1
Roughly one month before his son Timothy's birth, Bruce L. met with a married couple (the Eberts) interested in adopting Timothy. Bruce informed the Eberts he would not consent to the adoption. Bruce anticipated being away on a commercial fishing job on Timothy's expected birth date and gave the Eberts temporary permission to take care of Timothy.
When Connie J. gave birth to Timothy on July 19, 2007, the Eberts were present. Connie did not include the father's information on the birth certificate. Connie signed a document prepared by the Eberts' attorney that gave the Eberts permission to take care of Timothy in contemplation of adoption. Connie's signature attested:
I am an Alaska Native, having come from the Alaska Native Village of Unalakleet. As a result of my Unalakleet lineage I believe that my child is an Indian Child under federal law because I believe that my child would be entitled to membership within the Alaska Native Village of Unalakleet.
The document also stated Connie understood she had to appear in court to have her rights explained to her before she could consent to an adoption or permit termination of her parental rights "[b]ecause [her] child is an Indian Child." The Eberts took Timothy home from the hospital.
Bruce returned from his fishing job in July and called Connie at work early in August, leaving a message. Bruce testified that when Connie returned his call on August 9 he asked for visitation with Timothy and offered to pay support, but she told him to contact the Eberts or their attorney. Bruce also testified that he telephoned the Eberts' attorney three or four times in August to request visitation with Timothy, but although the attorney said he would confer with the Eberts, Bruce never heard back from anyone about the possibility of visitation. Mr. Ebert testified he recalled his attorney receiving one phone call from Bruce, when the attorney gave Bruce the case number for the adoption proceeding filed in August. Bruce also testified that he called the Eberts at their home in late August or September 2007, a female voice answered and put him on hold when he asked to speak with Mr. Ebert, and the call was disconnected without anyone speaking to him. Mr. Ebert disputed that anyone in his household received this call from Bruce.
2. Initial adoption petition at one month
The Eberts filed a verified petition to adopt Timothy on August 21, 2007. In this petition they stated, under oath:
[Timothy] is an "Indian Child" as that term is defined by 25 USC § 1901 et seq. based [on] [Timothy] being eligible for membership in an Alaska Native Village as defined in 43 USC § 1610(b)(1). Pursuant to 25 USC § 1903(5) it appears that [Timothy]'s Indian Tribe is Native Village of Unalakleet.
The Eberts also stated they and Connie would observe ICWA's requirements for Connie's consent to adoption and voluntary relinquishment of parental rights "[b]ecause [Timothy] is an Indian Child."*fn2 The Eberts asserted Bruce's consent to the adoption was unnecessary because Bruce had not legitimated Timothy under Alaska law.*fn3
Bruce filed an acknowledgment of paternity and affidavit of paternity in the adoption case on September 25, 2007, but those documents failed to legitimate Timothy under state law because Connie did not sign them.*fn4 On the same day, Bruce moved for custody and asked to be a party to the case. In October the Eberts served notice on Bruce and the Native Village of Unalakleet (Tribe) that there would be a November 14 hearing on the adoption petition.
Bruce appeared at the November 14 hearing. The Eberts' attorney acknowledged on the record that Bruce was contesting the adoption and that Timothy is an Indian child under ICWA. The master questioned Bruce about his income and child support obligations for his other children.*fn5 The master appointed an attorney for Bruce based on the ICWA provision providing that an indigent parent of an Indian child has a right to court-appointed counsel in termination proceedings.*fn6 The superior court denied Bruce's motion for custody without prejudice on November 19 but allowed Bruce to be a party to the case.
On December 6 Bruce moved for an order to compel the Eberts to make Timothy available for paternity testing. Eight days later the Eberts requested dismissal of the adoption petition and termination of court-appointed counsel for Bruce. Bruce filed a conditional non-opposition, asking that the Eberts give him physical custody of Timothy and reiterating his request that the court order paternity testing. In their reply the Eberts argued the court could not grant Bruce custody because it lacked personal jurisdiction over Connie, and again referred to the adoption as an "ICWA adoption." Bruce left a voice message with the Eberts in December asking them to bring Timothy to a December 28 status hearing so Bruce could take custody of him.
At the hearing the master recommended granting the Eberts' request to withdraw their adoption petition. Bruce's appointed counsel asked that Bruce's requested paternity test go forward, but the master concluded Bruce's motion for paternity testing was moot. The master mentioned that Bruce could "followup" on his parental rights by filing a custody case. Ultimately adopting the master's recommendation months later, on June 4, 2008, the superior court dismissed the adoption petition, vacated all orders, and terminated the appointment of counsel for Bruce.
3. Bruce's custody action at five months
Three days after the December 2007 status hearing Bruce, acting pro se, filed the custody portion of this consolidated case. In his child support guidelines affidavit Bruce reported $11,750 in gross annual income, $9,000 in wages, $1,100 in unemployment compensation, and $1,650 for his Alaska Permanent Fund Dividend.
Bruce requested an exemption from payment of court fees on the basis of indigence, asserting he was unemployed and had only $10,750 in income for the prior 12 months. He calculated $2,100 in monthly expenses for food, rent, utilities, and other child support obligations, and noted he was behind in his support payments. He also reported he had no assets and debts of ...