Tununak v. Alaska: State Asks Court for More Time on Adoption Case UPDATED

“The state on Monday asked the Alaska Supreme Court for more time in a case involving the adoption of a Yup’ik child, a case that tribes say will determine how the Indian Child Welfare Act, or ICWA, will be implemented in Alaska, and show whether Governor Bill Walker is serious about campaign pledges he made to work cooperatively with tribes.

Under the terms of ICWA, Alaska Native children must be placed for adoption with their relatives or tribal members unless it’s clearly in the child’s interests to do otherwise. But an Alaska Supreme Court ruling last September allowed a non-Native couple to adopt a Native child after the Governor Sean Parnell administration successfully argued the child’s Native grandmother failed to file a petition to adopt, a requirement the state contends was set by a 2013 U.S. Supreme Court ruling.

But attorneys for the grandmother and the village of Tununak maintain the grandmother’s request to the state’s Office of Children’s Services, and her court testimony stating she wanted to adopt her grand-daughter, meet the higher court’s standards. They say requiring a petition to adopt would create a costly barrier between Native children and Native families. They submitted a petition for a rehearing of the case, and the U.S. Department of Justice joined them with anadvisory, or amicus, brief.

Jacqueline Schafer is an assistant attorney general in the Alaska Department of Law. “The state has requested an additional 30-day extension because the administration needs additional time to determine its response to the issues raised in the petition and the amicus brief,” she said.

Lloyd Miller, of Sonosky, Chambers, Sachse, Miller and Munson, who is representing the grandmother, says he’s encouraged the state has asked for more time. “I think it’s to the attorney general’s credit that he is now open to the possibility of taking a different position, and sorting through whether or not to do so. I think that’s very important and it does takes time.

Miller says the Walker administration is right to take the time to look at the larger implications of Tununak v. Alaska.

“This case is a potentially explosive case and could well define the administration’s position in Alaska Native affairs and in particular the relationship the administration is going to have with tribes in Alaska,” Miller said. “So the more time the state takes to carefully decide what it’s going to do, the better. It’s now up to the Alaska Supreme Court to decide whether to grant the state a time extension.

Schafer says the state is working to make it easier for relatives and tribal members to adopt Native children:

“Regardless of whether the state changes its position in this appeal” Schafer said.  The state has already started down the path of finding ways to work with tribes to ease the adoption requirements and to improve OCS services to Alaska Native communities.”

The state’s request for an extension comes after the Alaska Federation of Natives and organizations like the Association of Village Council Presidents, Tanana Chiefs Conference and the Central Council of Tlingit and Haida Indian Tribes of Alaska last week asked the state to change its position.”

State Asks Court for More Time on Adoption Case[Alaska Public 3/16/15 by  Joaqlin Estus]

The April 2014 Amicus Brief can be found here.

REFORM Puzzle Piece

 

Update: “Following pressure from several Alaska Native groups, the Walker administration has issued an emergency regulation designed to ease burdens on Alaska Natives hoping to adopt Native children.

 

The regulation, issued Wednesday, comes in response to concerns that current state requirements pose barriers to Native families seeking to adopt, particularly those in remote settings with limited access to state courts.

 

 

Julie Kitka, president of the Alaska Federation of Natives, applauded Walker’s willingness to listen and dig into challenging issues. She said he met the Native community “more than halfway.”

 

“You’re seeing a new sensitivity and understanding by the governor that there are very complex issues there and that Alaska Natives have very strong views on things that affect Native children and their communities,” she said. “What’s new here is he’s taking this extra effort to understand what people are talking about as opposed to battling it out in court.”

 

The emergency regulation, an idea the AFN organization came up with, will immediately protect at least 200 children, Kitka said.

 

The regulation came with an adoption order signed by state Health Commissioner Valerie Davidson with filing certification by Lt. Gov. Byron Mallott. It became effective Wednesday.

 

The state currently requires that families file for adoption in a state court, a requirement that was “sufficiently challenging,” particularly in rural Alaska, said an emergency finding associated with the regulation. It placed an obstacle between Native foster children in state care and families hoping to adopt under the Indian Child Welfare Act.

 

“For example: Child In Need of Aid proceedings, the proceedings by which children in the custody of (the state health department) may be freed for adoption, are confidential; filing a petition to adopt a Native child requires the assistance of a lawyer; the majority of rural Alaskans and low-income Alaskans do not have access to a lawyer; in rural Alaska, limited access to computers, printers, reliable internet service, and the lack of Native-language court forms further limit access to the courts,” said the finding.

 

The development stems from a state Supreme Court decision made in September in Native Village of Tununak v. State, a case brought in 2011 involving a woman from that Southwest village who wished to adopt her young granddaughter.

 

The state had said the woman never formally filed to adopt her, though she had taken several steps to do so, including expressing her intentions in a courtroom hearing as state officials had instructed, said her attorney, Jim Davis of Alaska Legal Services.

 

The state court’s decision, citing a U.S. Supreme Court case, said a formal filing or a proxy was required, Davis said. Yet the state had not defined the steps needed to satisfy a proxy.

 

The new emergency regulations say a proxy can consist of the request of a relative, tribal member or other Indian family interested in immediate placement and adoption of a child at any court hearing in the Child in Need of Aid matter; the request of a relative, tribal member or other Indian family interested in immediate placement and adoption of a child, conveyed to the department by phone, mail, fax, electronic mail, or in person; or the request by the child’s tribe or tribe in which the child is eligible for enrollment to the department on behalf of a relative or tribal member who the tribe has confirmed is requesting immediate placement and adoption of a child.

 

Native organizations, including AFN and the Tanana Chiefs Conference, had petitioned Gov. Bill Walker and Lt. Gov. Byron Mallott to urge the state Supreme Court to reopen the case. The state’s deadline to respond was Wednesday and Davis said he had not seen what the state intended to do.

 

But he said the emergency regulations are a “huge” improvement.

 

“Whether it fixes all the problems, time will tell, but it’s certainly a very positive step that AFN and the governor took relatively quickly,” he said. “They and commissioner Davidson put their heads together and said, ‘How do we make things right so Native kids are not left in limbo for years?’ ”

 

The finding notes most children in state foster care are Alaska Native or American Indian. About 525 of those 1,500 Native or Indian children will achieve permanency through adoption, it notes.

 

“There is an immediate need to improve access to the formal adoption process” for those children and Native families, the regulation says. The longer they wait, the more likelihood there is that trauma will occur to the children.

 

“Placement with a relative or a tribal member for purposes of adoption allows for the child to grow up with the necessary familial and cultural connections to reduce this trauma. For those children who will ultimately find permanency through adoption, their best interests are served by adoptive placement in homes that reflect the unique values of Native culture: ICWA-preferred adoptive placements,” the finding notes.

 

Davidson, reached Friday, said she could not comment.

 

Kitka, Davidson, Mallott and the governor are scheduled to appear at a live-streamed press conference Thursday morning at 10:30 in the Capitol building in Juneau to discuss the emergency regulations.”

State issues emergency rules to ease adoption for Alaska Natives[ADN 4/15/15 by Alex DeMarban]