J.P. and S.P. (Foster Parents) v. State of Alaska, DHSS, OCS, G.C. (Mother), W.F. (Father), J.F. (Child), and Sun'aq Tribe of Kodiak

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 [email protected].

In the Supreme Court of the State of Alaska J.P. and S.P. (Foster Parents),

)

) Supreme Court No. S-18107

Appellants )

) Superior Court No. 3AN-17-00032 CN

v. )

) Order

)

STATE OF ALASKA, ) Order No. 116 – March 18, 2022 DEPARTMENT OF HEALTH & ) SOCIAL SERVICES, DIVISION OF ) CHILDREN’S SERVICES, J.F. ) (Child), and SUN’AQ TRIBE OF ) KODIAK, )

) Appellees. )

) Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and

Henderson, Justices.

Winfree, Chief Justice, with whom Carney, Justice, joins, concurring.

This appellate proceeding arises out of a child in need of aid (CINA) case governed by the Indian Child Welfare Act1 (ICWA) and involving minor J.F. J.F. is an Indian child under ICWA.2 The Sun’aq Tribe of Kodiak petitioned for a transfer of jurisdiction to its tribal court pursuant to 25 U.S.C. § 1911(b).3 The superior court transferred jurisdiction to the Sun’aq Tribe in an order dated May 26, 2021. The Sun’aq Tribe accepted jurisdiction on June 3, 2021. The next day J.F.’s foster parents, J.P. and S.P., moved to stay the superior court’s transfer order. J.P. and S.P. later moved for reconsideration of the transfer order. The superior court denied both motions in orders dated June 11, 2021. Meanwhile the tribal court entered an order dated June 9, 2021 that placed J.F. with paternal relatives in New Mexico. On June 11 J.P. and S.P. moved for a stay pending appeal from this court; we summarily denied the stay. J.P. and S.P. moved for a second stay on June 16, after a tribal court order issued that same day affirmed J.F.’s change in placement. We again denied the motion for stay.

We explained our reasons for denying the motions for stay in an order dated July 9, 2021 and, in a separate order, invited briefing from the parties on two issues: (1) whether J.P. and S.P. were parties in the CINA proceedings below and may maintain an appeal; and (2) whether the public interest exception to the mootness doctrine applies. We thank the parties for their helpful briefing on these issues.

Having considered the parties’ briefing — and assuming without deciding both that J.P. and S.P. were granted intervenor-party status in the superior court and that such a grant of intervenor-party status would have been appropriate4 — we dismiss this appeal as moot. “If the party bringing the action would not be entitled to any relief even if it prevails, there is no ‘case or controversy’ for us to decide,” and the action is therefore moot.5 As explained in our order of July 9, 2021, even if we were to rule that the superior court erred in transferring jurisdiction, we lack the authority to order the court of the Sun’aq Tribe, a separate sovereign, to transfer jurisdiction of the child’s proceeding back to state court.6 And we lack authority to directly review the tribal court’s placement order.7

J.P. and S.P. argue this case is not moot, citing Starr v. George.8 That case did not involve transfer of jurisdiction to a tribal court. Instead it involved an appeal from a superior court custody award that was issued after, and notwithstanding, a prior tribal court adoption order.9 After the children’s mother fatally stabbed their father and was sent to prison, the Starrs (maternal grandparents) were initially appointed guardians, and the Georges (paternal grandparents) received visitation rights.10 The arrangement led to conflict, and the Georges filed a superior court action seeking custody.11 Unbeknownst to them, the Starrs had previously obtained a cultural adoption order from the children’s tribe.12 The Starrs moved to dismiss the superior court case, arguing that the tribal court adoption order terminated the Georges’ relationship with the children so that they lacked standing to assert custody.13 The superior court denied the motion to dismiss, ruling that the tribal court order was not entitled to comity because the Georges had not received notice of the tribal court proceeding and therefore were denied due process.14 We affirmed. Applying a full faith and credit analysis rather than comity, we concluded that the tribal court adoption order was not enforceable because the Georges’ due process rights had been violated.15

A key distinction between Starr v. George and this case is the procedural posture. In Starr we were reviewing the superior court’s decision to continue exercising jurisdiction over the child custody matter after deciding that the tribal court order was not enforceable.16 If we had reversed that decision on appeal, the Starrs would have obtained tangible relief because the superior court’s subsequent custody order in the Georges’ favor would have been vacated. By contrast, a ruling in this case that the superior court erred in transferring jurisdiction to the Sun’aq Tribe could not afford J.P. and S.P. any relief because we have no power to force the tribal court to vacate its placement order and return jurisdiction to the superior court.17

Another key distinction is that in Starr v. George the issue of whether the tribal court order should be given effect was actually litigated in superior court. The superior court ruled that the tribal court order was not entitled to comity because the tribal court proceedings did not afford due process, and we affirmed, reasoning that the lack of due process in tribal court proceedings meant the tribal court decision was not entitled to full faith and credit.18 In this matter the parties did not litigate whether the Sun’aq Tribe’s order is entitled to full faith and credit19 in superior court.

J.P. and S.P. also argue that hearing this appeal would not require us to order the Sun’aq Tribe to return jurisdiction because the Tribe never validly obtained jurisdiction. This argument is based on the notion that it was improper to grant jurisdiction to the Sun’aq Tribe, which has no relationship with the child or family but was acting at the behest of the tribe in which the child is eligible for membership — the Tangirnaq Native Village. Amicus curiae Goldwater Institute makes a similar argument. Goldwater argues that ICWA § 1911(b) cannot be interpreted to allow transfer of jurisdiction to the Sun’aq Tribe because its court would not have the minimum contacts necessary to exercise jurisdiction over the child, who is not eligible for membership in that Tribe. In other words, Congress could not have intended § 1911(b)’s transfer provision to be interpreted so broadly as to allow transfer to a tribal court that lacks personal jurisdiction.

These arguments tend to elide the existence of two distinct questions. The first question is whether the superior court erred in transferring jurisdiction to the Sun’aq Tribe because it is not “the Indian child’s tribe” for purposes of ICWA’s transfer provision.20 This question is, at least at the outset, one of statutory interpretation. The second question is whether the Sun’aq Tribe’s placement order is invalid and should be denied full faith and credit21 because the tribal court lacked personal or subject matter jurisdiction to enter a child custody ruling involving J.F.22

That second question is not properly before us. J.P. and S.P. did not argue that the superior court should deny enforcement of the Sun’aq Tribe’s placement order because it is not entitled to full faith and credit. Nor did J.P. and S.P. show that they had exhausted their remedies in tribal court — a required showing before making a full faith and credit argument in state court.23 The only issue before us on appeal is whether the transfer was correct. And as explained above, that issue is moot.

Because the issue is moot, we must determine whether the public interest exception to the mootness doctrine warrants review of the transfer order. To decide whether to hear a moot appeal, we consider three factors:

(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine.[24]

WINFREE, Chief Justice, with whom CARNEY, Justice, joins, concurring.

I agree that this appeal should be dismissed as moot. I write separately to express my continuing concern with the impact of State, Department of Health & Social Services, Office of Children’s Services v. Zander B.,1 as reflected by the facts of this case.

In Zander B. the court held that, although a foster parent intervening as a party in a child in need of aid proceeding should “be the rare exception rather than the rule,” intervention is not precluded as a matter of law.2 And the court concluded that the superior court’s grant of permissive intervention for a foster parent should be reviewed for abuse of discretion.3 In Zander B. the foster parents had contested attempts by Office of Children’s Services (OCS) to remove their foster child for placement with a family member, claiming the child had bonded with them.4 The foster parents sought and were granted intervenor status for any placement hearing during the child in need of aid proceedings.5 Despite recognizing that foster parent intervention in a child in need of aid case risks delays and complications distracting OCS from its mandated family reunification efforts,6 the court concluded that specific evidence the foster parents possessed about the proposed placement would not be heard absent the foster parents’ participation and warranted their intervention.7 The court thus concluded that it was the “rare [child in need of aid] case” when foster parent intervention was not an abuse of discretion.8

The Zander B. dissent found the decision “untenable” because foster parents have a statutory right to notice and an opportunity to be heard at any placement review hearing without needing to intervene as a party9 and because foster parent intervention is contrary to the entire state-mandated family reunification framework.10 It was clear from the foster parents’ filings and related adoption petition that they were attempting to override OCS’s reunification efforts and have the biological parents’ parental rights terminated, clearing the path for the foster parents to adopt the child.11 The dissent expressly noted the problematic juxtaposition of foster parents prosecuting parental rights termination for adoption purposes and OCS pursuing family reunification as required by law.12

The foster parent intervention issue litigated in Zander B. arose in this child in need of aid case, which is governed by the Indian Child Welfare Act (ICWA).13 In this case the foster parents — who were not a preferred placement under ICWA14 — went even further than the Zander B. foster parents, asserting they were the child’s psychological parents15 and seeking to intervene as parties in the child in need of aid case to seek custody and contest transfer of jurisdiction from state court to tribal court. Although the superior court did not rule expressly, the court implicitly granted intervention by allowing the foster parents to participate as parties in the proceedings. The foster parents thus inserted themselves not only in ICWA-related placement considerations but also in state-tribal jurisdictional issues, attempting to thwart federal and state statutes governing protection for Indian children in child in need of aid proceedings. In my view this goes beyond the “untenable” result in Zander B. I urge superior courts to closely scrutinize foster parent intervention efforts in all child in need of aid cases, and particularly in those governed by ICWA.