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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.
FABE, Chief Justice.
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
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. 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. 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, 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
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 that he " told the members of the Minto Tribal Court that the Minto Tribal Court had no legal authority to involve itself in matters relating to the custody of S.P." There is no mention of this objection to the tribal court's authority in the court's hearing notes.
After the August hearing, Parks maintained contact with Gaede, who offered to help him write letters to Stevens Village and to the Minto Tribal Court requesting help in paying for an anger management assessment. Gaede also gave Parks a petition to ask the tribal court to modify its requirements. Later, Parks's regular visitation with S.P. was suspended by a temporary protective order issued by the tribal court after Parks exhibited angry and aggressive behavior with Gaede.
E. Parks Filed A Petition With The Minto Tribal Court To Expedite The Custody Case. The Court Held Its Fourth And Fifth Hearings. Parks Attended, Participated, And Clearly Objected To The Court's Jurisdiction.
On November 4, 2008, Parks filed a petition with the Minto Tribal Court to resume regular visitation with S.P. and to expedite the custody case " as soon as reasonably possible." On December 8, 2008, the tribal court held another temporary custody hearing. Parks was given written notice of the hearing and participated telephonically. Stearman was provided with notice of the hearing but did not participate due to her incarceration. Parks's mother, Evelyn, and a Stevens Village social worker also participated. Parks asked that S.P. be returned to his custody; he testified about his work and living situation, his relationship with S.P., the possibility of living with S.P. in his sister's home in Anchorage, and anger management classes. The Stevens Village social worker reported that she had done a home visit at Parks's sister's house and found it acceptable; she also asked about the barriers to returning S.P. to Parks's custody. The tribal court concluded that the temporary custody arrangement should continue; the order provided for parental visitation and reiterated the court's reunification requirements, including the requirement that Parks complete an anger management program.
At the hearing, Parks objected to the Minto Tribal Court's jurisdiction, stating, " I don't agree w[ith] your jurisdiction over me." It appears that the tribal court responded by advising Parks to hire a lawyer to apply for an order to show cause.
The tribal court held another hearing on March 25, 2009, in which Parks participated. Parks again testified and indicated that he could no longer afford the anger management program he had begun. The tribal court continued the temporary custody arrangement and reminded Parks that the tribal court required him to attend and complete an anger management program and parenting classes in order to be reunified with S.P. When Parks called the next day, Gaede instructed him to write to the tribal court to request help in paying for the program; Parks did not request help from the court.
F. Parks Retained An Attorney, Who Sent A Letter To The Minto Tribal Court Clerk In Which He Objected To The Minto Tribal Court's Jurisdiction.
Parks retained attorney Donald Mitchell to represent him in his attempts to regain custody of S.P. On April 16, 2009, Mitchell faxed a letter on Parks's behalf to Michael Walleri, the general counsel of the Tanana Chiefs Conference, in which Mitchell objected to the Minto Tribal Court's jurisdiction:
[I]t is my long-held view that neither the Athabascan residents of the Native Village of Minto nor the Alaska Native residents of any other community that Congress designated as a " Native village" for the purposes of the Alaska Native Claims Settlement Act are members of a " federally recognized tribe" that possesses governmental authority of any kind, including jurisdiction to involve itself in child custody matters.
. . . .
[P]lease be advised that if [the Tanana Chiefs Conference] does not arrange for Mr. Parks to be reunited with his daughter I will file a civil action in the U.S. District Court against the Native Village of Minto, [the Tanana Chiefs Conference], Jeffrey and Rozella Simmonds, and -- if it turns out that it participated with [the Tanana Chiefs Conference] in placing [S.P.] in the clutches of the Tribal Court for the Native Village of Minto -- the Office of Children's Services. That action will seek declaratory and injunctive relief and money damages and it will decide once and for all whether, in Alaska, Tribal Courts are the ersatz institutions that I and many others believe them to be.
Mitchell also sent this letter to Lori Baker, who serves as the Chief of the Native Village of Minto and the Clerk of the Minto Tribal Court.
G. Parks And Stearman Removed S.P. From Her Foster
Home On The Advice Of Mitchell. S.P. Was Returned Under Police Escort.
On May 5, 2009, Parks and Stearman went to the Simmondses home while Jeff and Rozella were out and removed S.P., leaving another letter written by Mitchell. Rozella Simmonds informed Gaede, who contacted the Fairbanks police and reported that a foster child in Minto Tribal Court custody had been abducted. A police officer stopped the car in which Parks and Stearman were transporting S.P. Parks returned to the Fairbanks police station with a police escort, and S.P. was returned to the Simmondses.
Parks and Stearman took S.P. from the Simmondses' home on the advice of Mitchell. Mitchell's second letter, which was left at the Simmondses' home, was dated May 4, 2009, and copied to Walleri, Gaede, OCS, and the Fairbanks Police Department. In the letter, Mitchell wrote:
[T]he Minto Tribal Court has no legal jurisdiction of any kind to invent its own child custody proceedings. And it particularly has no jurisdiction of any kind to involve itself in matters relating to the custody of [S.P.].
. . . .
For that reason, please be further advised that I have advised Mr. Parks and Ms. Stearman that they have the parental rights that the Alaska statutes grant to them to have physical custody of their daughter . . . . Acting on that advice, they have taken physical custody of [S.P.] . . . .
H. The Minto Tribal Court Held A Parental Rights Termination Hearing. Parks Was Represented By Mitchell At The Hearing, But Mitchell Was Not Permitted To Directly Address The Court. The Court Terminated The Parental Rights Of Parks And Stearman.
On May 7, 2009, the Minto Tribal Court held a hearing on termination of the parental rights of Parks and Stearman. Both Parks and Stearman received notice of the hearing and attended via teleconference from Fairbanks. Parks's attorney, Mitchell, also attended.
Before the hearing, a Tanana Chiefs Conference staff member informed Parks that the tribal court would not permit his attorney to directly address the tribal court; only the parties, their witnesses, or lay advocates were permitted to address the tribal court.
Parks acknowledges receiving this information, and he did not object to this restriction on his attorney's participation during the May 7 hearing. He also did not object to the tribal court's jurisdiction at this hearing.
At the May 7 hearing, Parks and Stearman testified on their own behalf, and Evelyn Parks and the Stevens Village social worker also testified on behalf of Parks. Mitchell was present at the hearing and permitted to speak with Parks and Stearman, but he was not permitted to speak directly to the tribal court.
The tribal court's May 7 order noted that Parks had failed to complete an anger management program, which was a requirement for reunification, and that Parks continued to be a threat to tribal staff and to the Simmondses, which had resulted in multiple tribal court protective orders against him. The tribal court concluded that " [b]y clear and convincing evidence, it is in the best interest of [S.P.] to terminate the parental rights of [Stearman and Parks] due to failure to provide a suitable home and support for [S.P.] and the volatile nature of [Parks]." A subsequent tribal court order granted permanent custody of S.P. to the Simmondses.
I. The Notice Given To Parks Prior To The May 7 Hearing Is Disputed.
The parties dispute whether Parks and Stearman were notified of the Minto Tribal Court's limitation on attorney participation prior to the May 7 hearing. It is undisputed that by the time of that hearing, Parks had been given written notice of four previous hearings conducted by the tribal court and personally participated in three of them. He had also presented at least one oral objection to the tribal court's jurisdiction over him, and his attorney had submitted a letter which
detailed his jurisdictional objections to the Minto ...