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(Cite
as: 727 P.2d 1057)
Supreme
Court of Alaska.
In
the Matter of L.A.M., A Minor Under the Age of
Eighteen (18) Years.
No.
S-1205.
Nov.
14, 1986.
Claim
of error is not considered on appeal if it was
not both argued in trial court and properly raised on
appeal unless it constitutes plain error, which affects substantive rights
and is obviously prejudicial.
Indian
mother was entitled to raise issue during appeal which was
not raised at trial or in statement of points on
appeal, in termination of parental rights case, as parental rights
termination proceeding is so fundamental that justice requires consideration of
claim of defective notice and the Indian Child Welfare Act
specifically authorizes parent to petition for invalidation of termination of
parental rights upon showing that action violated Act's provisions, including
notice requirements. Indian Child Welfare Act of 1978, § 104,
25 U.S.C.A. § 1914.
Statutes
enacted for benefit of Indians must be liberally construed with
all doubts resolved in favor of Indians.
Under
Indian Child Welfare Act, notice of any termination of parental
rights proceeding must be provided to parents by registered mail
with return receipt requested unless identity or location of parent
and Indian child's tribe cannot be determined, in which case
notice must be provided to Secretary of Interior in same
manner; notice requirements are mandatory and proceedings may not be
held until at least ten days after parent or Secretary
of Interior has been notified. Indian Child Welfare Act of
1978, § 102,
25 U.S.C.A. § 1912.
State
violated notice requirement of Indian Child Welfare Act by making
no attempt to send notice of parental rights termination hearing
to mother by registered mail, despite knowledge that mother was
in contact with tribal caseworker in different state, nor did
State attempt to send registered notice to parents in care
of tribal office. Indian Child Welfare Act of 1978, § 102,
25 U.S.C.A. § 1912.
Record
did not permit conclusion that Indian mother had actual notice
of termination of parental rights hearing so as to render
harmless State's violation of Indian Child Welfare Act notice requirements
as there was no evidence that caseworker told mother of
termination hearing and maternal grandfather, who spoke with father regarding
court did not provide specific information about termination hearing as
it had not yet been scheduled. Indian Child Welfare Act
of 1978, § 102,
25 U.S.C.A. § 1912.
State
failed to satisfy state law notice requirement regarding provision of
actual notice to parent of termination of parental rights proceedings
where, though state knew parents had been living out of
state, it did not send notification there, and only provided
notice of publication which was not adequate to give actual
notice as required. AS 47.10.030(b); Children's Procedure Rule 10(g).
*1058
Philip J. McCarthy, Jr., Asst. Public Advocate, and Brant McGee,
Public Advocate, Anchorage, for appellant.
Sidney D. Watson, Alaska Legal Services, Dillingham, Guardian Ad Litem.
Elizabeth Page Kennedy, Asst. Atty. Gen., Anchorage, and Harold M.
Brown, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
MOORE, Justice.
S.M. appeals from a superior court order terminating her parental
rights to her
daughter, L.A.M. Because we conclude that S.M. did not receive
proper notice of the termination proceeding, as required by the
Indian Child Welfare Act, we reverse the termination order.
I. FACTS AND PROCEDURAL BACKGROUND
L.A.M., who is an Indian child within the meaning of
the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963
(1982),
[FN1] was born in February 1984 to S.M. and T.M.
In April the Department of Health and Social Services (DHSS)
received reports of possible child abuse by the infant's father
and filed a Petition for Adjudication of a Child in
Need of Aid, pursuant to AS 47.10.010(a)(2).
FN1.
See
specifically
25 U.S.C. § 1903(4).
The trial court appointed Alaska Legal Services as guardian ad
litem
for L.A.M. and the Public Defender Agency to represent the
parents. During a probable cause hearing, medical testimony established that
L.A.M. had been hospitalized for undernourishment and had a fracture
of the right arm which appeared to have been caused
by a twisting motion. The court ordered L.A.M. committed to
DHSS custody for temporary placement. The child was placed with
her maternal grandparents and has lived with them in Aleknagik
since her release from the hospital.
While L.A.M. was hospitalized, her parents moved to Anchorage and
subsequently moved outside the state. In December 1984 the State
filed an amended Petition for Adjudication of a Child in
Need of Aid and for Termination of Parental Rights. The
petition alleged physical abuse of L.A.M. by the father, inadequate
nourishment and abandonment by both parents. After the Attorney General's
office filed an *1059
affidavit of diligent inquiry stating that efforts to locate the
parents had failed, the trial court granted the State's motion
to serve the parents with the amended petition by publication.
The parents were believed to be living in Daytona Beach,
Florida, so the State published notice in a Daytona Beach
newspaper.
[FN2]
FN2.
The State also sent notice of the proceeding to the
Village of Aleknagik, L.A.M.'s Indian tribe, in accordance with ICWA
requirements. See
25 U.S.C. § 1912(a).
An adjudication hearing was held in February 1985, at which
time the trial court found L.A.M. to be a child
in need of aid and scheduled a parental rights termination
trial for April. Notice to the parents again was provided
by publication, but this time through a newspaper in Bellingham,
Washington, where S.M. and T.M. then were reported to be
living. The parents did not attend either the adjudication or
termination hearings. The public defender represented
them jointly at both proceedings.
[FN3]
FN3.
The trial court initially denied a motion by the public
defender for appointment of separate counsel to represent the parents
to avoid a conflict of interest. After the evidentiary portion
of the termination trial, but before closing arguments were presented,
the court appointed the Office of Public Advocacy as separate
counsel for the mother.
Following two days of testimony in April and oral arguments
in July, Superior Court Judge Hanson entered an order terminating
the parental rights of both S.M. and T.M. The mother
appeals.
II. DISCUSSION
S.M. urges reversal of the termination order, arguing that 1)
she did not receive proper notice of the termination proceeding,
2) she was denied effective assistance of counsel, and 3)
there was insufficient evidence to support the termination of her
parental rights. The guardian ad
litem
supports the mother's position. Because our holding on the notice
issue is dispositive of S.M.'s appeal, we do not address
her other claims.
S.M. asserts that the State, by merely publishing notice of
the parental rights termination proceeding, failed to comply with the
notice requirements of the ICWA, 25 U.S.C. § 1912(a),
and AS 47.10.030(a) and (b).
The
State argues that we should not consider this issue because it was not
raised at any stage of the trial court proceedings nor specified in S.M.'s
statement of points on appeal. Unless it constitutes plain
error, we ordinarily will not consider a claim of error if it was not
both argued in the trial court and properly raised on appeal. Vest
v. First National Bank of Fairbanks,
659 P.2d 1233, 1234 n. 2 (Alaska 1983), citing Burford
v. State, 515 P.2d
382, 383 (Alaska 1973). In order for this court to find plain
error, the error must affect substantive rights and be obviously prejudicial.
Burford,
515 P.2d at 383. As we stated in Miller
v. Sears, 636 P.2d
1183, 1189 (Alaska 1981), "[p]lain error exists where an obvious
mistake has been made which creates a high likelihood that injustice has
resulted."
This is such a case. The
due process right to proper notice in a parental rights termination proceeding
is so fundamental that justice requires us to consider S.M.'s claim of
defective notice. Furthermore, the ICWA specifically authorizes
a parent to "petition any court of competent jurisdiction to invalidate
[a termination of parental rights] upon a showing that such action violated"
certain ICWA provisions, including the act's notice requirements. 25
U.S.C. § 1914.
[FN4] The guardian ad
litem relies on this
provision to argue that S.M. has a right under federal law to be heard
on the defective notice issue even though it was not raised below.
FN4.
25 U.S.C. § 1914
provides:
Any
Indian child who is the subject of any action for
foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such
child was removed, and the Indian child's tribe may petition
any court of competent jurisdiction to invalidate such action upon
a showing that such action violated any provision of sections
1911, 1912, and 1913 of this title.
*1060
While there is little case
law construing § 1914, the guardian ad
litem 's interpretation
is consistent with the intent of ICWA to promote the stability of Indian
tribes and families, see
25 U.S.C. §§ 1901-02, and is supported by the legislative
history of § 1914. See
H.R.Rep. No. 1386, 95th Cong., 2d Sess. 23, reprinted
in 1978 U.S.Code Cong.
& Ad.News 7530, 7546 (§ 1914 authorizes a parent "to move
to set aside any ... termination of parental rights on the grounds that
the rights secured under sections [1911, 1912, or 1913] were violated").
This interpretation of § 1914 also follows the rule
that statutes enacted for the benefit of Indians must be liberally construed
with all doubts resolved in favor of the Indians. Preston
v. Heckler, 734 F.2d
1359, 1369 (9th Cir.1984).
We turn now to the merits of S.M.'s claim. The
record establishes that notice to S.M. regarding the April 1985
termination of parental rights hearing was
by publication, rather than by personal service or registered mail.
We conclude this was a clear violation of the ICWA
notice requirements.
The
ICWA requires that notice of any termination of parental rights proceeding
be provided to the parents by registered mail with return receipt requested.
25 U.S.C. § 1912(a).
[FN5] If the identity or location of the parent and the Indian child's
tribe cannot be determined, notice must be provided to the Secretary of
the Interior in the same manner. Id.
The notice requirements of § 1912 are mandatory and the
section further provides that no termination of parental rights proceeding
may be held until at least ten days after the parent has received notice
by registered mail, or, if the parent cannot be found, the Secretary of
the Interior has been notified. [FN6]
See D.E.D. v.
State, 704 P.2d 774,
779 (Alaska 1985).
FN5.
25 U.S.C. § 1912(a)
provides:
In
any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement of,
or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child's
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention. If the
identity or location of the parent or Indian custodian and
the tribe cannot be determined,
such notice shall be given to the Secretary in like
manner, who shall have fifteen days after receipt to provide
the requisite notice to the parent or Indian custodian and
the tribe. No foster care placement or termination of parental
rights proceeding shall be held until at least ten days
after receipt of notice by the parent or Indian custodian
and the tribe or the Secretary: Provided,
That the parent or Indian custodian or the tribe shall,
upon request, be granted up to twenty additional days to
prepare for such proceeding.
(Emphasis
in original).
FN6.
In addition to the statutory mandate that notice be by
registered mail, the Department of the Interior's Guidelines
for State Courts; Indian Child Custody Proceedings,
44 Fed.Reg. 67584, 67588 (1979), recommend that such notice advise
the parent of certain rights protected under the ICWA, including
the right to appointed counsel, the right to a continuance
and the right to petition for transfer to tribal court.
While these recommendations are not binding, see
44 Fed.Reg. 67584, we look to them for guidance. D.E.D.
v. State,
704 P.2d 774, 779 n. 8 (Alaska 1985).
Here, the record indicates that
the State made no attempt to send notice
of the April parental rights termination hearing to S.M. by registered
mail, despite knowledge that S.M. was in contact with a tribal caseworker
in Washington. A DHSS social worker, Kathleen Stout, testified
that on February 11 she was contacted by a caseworker of the Lummi Tribal
Reservation in Bellingham, Washington. The caseworker told
Stout that S.M. and T.M. had asked her to contact DHSS to request financial
assistance so they could return to Alaska. Although Stout
asked the caseworker to tell the parents she would like to talk with them,
the record does not indicate that the State sought to obtain a mailing
address from the Lummi caseworker. Furthermore, the State
made no attempt to send registered notice to the parents in care of the
Lummi Tribal office.
Since the State failed to satisfy
ICWA's requirement of notice by registered *1061
mail, the order terminating S.M.'s parental rights must be reversed--unless
the procedural violation was harmless because the mother had actual notice
of the termination hearing. The record fails to establish
that S.M. had actual notice.
Stout testified that when she talked to the Lummi caseworker
on February 11 about the parents' request for financial assistance
she told the caseworker "that there was a court hearing
in February." Stout's testimony does not indicate whether she was
referring to the February adjudication hearing or the scheduled April
termination hearing, or whether she so specified to the Lummirepresentative.
In any event, there is no evidence that the caseworker
ever told S.M. of the termination hearing.
The record also includes testimony given during the February adjudication
hearing by S.M.'s father, stating that he had talked recently
by telephone to S.M.'s husband. When asked if he told
the husband about the adjudication
hearing, S.M.'s father replied that "I told him about court."
His testimony does not indicate whether he gave further details
to S.M.'s husband. Moreover, he could not have provided specific
information about the termination hearing because it had not been
scheduled yet.
On the basis of the record before us, we cannot
conclude that S.M. had actual notice of the termination hearing
so as to render harmless the violation of ICWA notice
requirements.
Although
the violation of ICWA requirements alone is a sufficient ground for vacating
the superior court's order terminating S.M.'s parental rights, we also
note that the State failed to satisfy state law notice requirements. Alaska
Statute 47.10.030(b) requires that a parent "shall be given notice
adequate to give actual
notice of the proceedings
and the possibility of termination of parental rights...." (Emphasis
added). The statute further provides that "[n]otice shall
be given in the manner appropriate under rules of civil procedure for
the service of process in a civil action under Alaska law or in any manner
the court by order directs." Here,
the trial court during the adjudication hearing orally directed the State
to notify the parents of the termination hearing by both publication and
mail. The court's subsequent written order adjudicating L.A.M.
a child in need of aid required only that the State serve notice by publication.
However, notice solely by publication is not "adequate to give
actual notice," as required by AS 47.10.030(b).
Children's Rule 10(g) provides that when the State files an
affidavit of due and diligent inquiry stating that personal service
cannot be made, the court may authorize notice by publication
supplemented by registered or certified mail. The notice must be
mailed to the parent's last known residence or place where
the parent receives mail "unless it shall appear by affidavit
that such residence or place is unknown and cannot
be ascertained after inquiry."
Alaska R.Children's P. 10(g) (emphasis added). Since the State knew
that S.M. was in contact with a Washington tribal caseworker,
we are not convinced that a mailing address could not
be ascertained after inquiry.
Because the notice requirements of the ICWA were not satisfied
in this case, and because the record does not establish
that S.M. had actual notice so as to render that
error harmless, S.M. is entitled to a new trial after
receipt of proper notice.
The superior court order terminating S.M.'s parental rights is VACATED
and the case REMANDED.
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