Unpublished Disposition, 912 F.2d 468 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 912 F.2d 468 (9th Cir. 1989)

Douglas GRAYBEAL, Brenda Graybeal, Plaintiffs-Appellants,v.STATE OF ALASKA, Allen Frank, Alice Nutting, John Pugh,Commissioner of the Department of Health andSocial Services, Defendants-Appellees.

No. 89-35740.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 1990.Decided Aug. 28, 1990.

Before RONEY,*  FARRIS and FERNANDEZ, Circuit Judges.



Douglas and Brenda Graybeal appeal the district court's grant of summary judgment in favor of the Commissioner of the Department of Health and Social Services of the State of Alaska. The Graybeals were seeking an injunction to prevent the State from transferring their foster child, allegedly adopted according to Indian law and custom, from their custody back to the mother's custody. The district court found that it lacked jurisdiction and granted the State's motion for summary judgment. The Graybeals appeal. This appeal raises issues of federal court jurisdiction under 42 U.S.C. § 1983, and tribal-state jurisdiction over child custody matters under the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq.


The district court's jurisdiction was invoked under 28 U.S.C. §§ 1331, 1343(3), and 1362. We have jurisdiction under 28 U.S.C. § 1291.


The child at the center of this controversy, "A.S.," was born to Alice Nutting on December 30, 1981. Allen Frank is the child's biological father. Alice Nutting, Allen Frank and A.S. are all Athabascan natives and residents of the Native Village of Northway, also a party to this action. Northway is recognized under federal law as an Alaska Native Village. 43 U.S.C. § 1610(b) (1).

At birth, A.S. was suffering from Fetal Alcohol Syndrome and was hospitalized on March 22, 1982, because of her resulting severe health problems. Alice Nutting had an alcohol problem and abandoned A.S. in the hospital. Allen Frank refused to admit his paternity, leaving the child effectively parentless. On April 9, 1982, the hospital authorities contacted the Alaska Department of Health and Social Services, Division of Family and Youth Services, and requested that the state take responsibility for A.S.

At about this time, Brenda Graybeal, A.S.'s paternal aunt, and her husband Douglas had decided to assume responsibility for the child. Informal binding custodial determinations within the extended family are common among the Athabascans, and it was alleged below that the Graybeals were operating within this tradition. Nothing in the record rebuts this allegation, which we therefore accept as true for the purposes of summary judgment review.

The Graybeals originally contacted the hospital with the request that physical custody of A.S. be granted to them. The hospital administrators refused to release the child to anyone except the mother or the state. Around April 25, 1982 the Graybeals contacted the Division of Family and Youth Services and expressed interest in caring for A.S. The Division of Family and Youth Services arranged for the Graybeals to become A.S.'s foster parents. On May 4, 1982 an Alaska state court granted temporary custody of A.S. to the Division which immediately turned the child over to the Graybeals where she has remained.

The Division established full legal custody of A.S. through a state "Child in Need of Assistance" proceeding which was held on August 11, 1982. The Village of Northway was notified of this proceeding pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1912(a). The state's custody of A.S. has been extended several times through "Child in Need of Assistance" proceedings, and under Alaska law the state still has custody of the child. The Graybeals have been agents of the Division as foster parents, and have nurtured and cared for A.S. According to several experts, the child has become fully integrated into the Graybeals' family. Legal custody was exclusively vested in the state and remains there.

The legal controversy over the custody of A.S. first arose in the September 24, 1985 "Child in Need of Assistance" hearing. The Division sought to institute a gradual return of A.S. to her mother, pursuant to its general policies. Alice Nutting had by this time allegedly overcome her alcohol dependency and wished to reassume control of her child. Mr. Frank and the Village of Northway opposed this plan; the Graybeals did not participate in the proceeding. The state court extended the Division of Family and Youth Services' custody and approved the plan to return the child to the mother within seven months.

Following this September 1985 extension of custody the Graybeals filed a petition to adopt A.S. with the Northway Tribal Court. Ms. Nutting and the Division obtained a restraining order to enjoin the tribal court from authorizing the adoption. The tribal court proceeded with the adoption and granted the petition for adoption on October 15, 1985. The Graybeals then went to federal district court seeking an injunction against the Division's implementation of the transfer plan. The Village of Northway intervened. The district court granted a preliminary injunction on December 30, 1985. Cross-motions for summary judgment were then filed. The district court did not render a decision until September 28, 1989, when it granted the Division's motion and denied the Graybeals' motion for summary judgment. The district court held that the Graybeals failed to state a federal cause of action. Notice of appeal was timely filed and an injunction pending appeal was granted on October 6, 1989. A.S. has been with the Graybeals continuously since she left the hospital on May 5, 1982.


The Graybeals make essentially three claims: 1) that they have a claim under 42 U.S.C. § 1983 for violations of federal statutory and constitutional law; 2) that the state violated their federal right to have the tribal adoption decree given full faith and credit, pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1911(d) and 3) that they have a remedy under section 1983 alleging that the state violated their due process rights by failing to provide notice and an opportunity to be heard before the "Child in Need of Assistance" proceedings, as guaranteed by state and federal law under the Uniform Child Custody Act, Alaska Stat. Sec. 25.30.030, the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, and the Indian Child Welfare Act, 25 U.S.C. §§ 1903(6), Sec. 1912. The Graybeals also argue that the Division failed to defer to the tribal court and so violated the Indian Child Welfare Act, which creates an independent cause of action. 25 U.S.C. § 1914. Section 1914 provides in pertinent part: "any parent or Indian custodian from whose custody such child was removed ... 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." 25 U.S.C. § 1914.

We reach only the question of right to notice since the resolution of that issue necessitates our setting aside the custody disposition made by the state.

The Graybeals had a right to notice and an opportunity to be heard before the child was removed from their custody. In so holding, we recognize that the Graybeals were personally given informal oral notice of the "Child in Need of Assistance" hearing and of the possibility that A.S. would be returned to her mother and that the Village was given formal written notice of the proceedings and in fact did intervene. Allen Frank (father of A.S. and Brenda Graybeal's brother) was also represented at the hearing. Both Frank and the Village opposed the Division's plan to return A.S. to her mother. These undisputed facts satisfy us that no due process violation occurred. The critical issue is that the Graybeals, as "Indian custodians" were entitled to the specific notice required under the Indian Child Welfare Act.

The Indian Child Welfare Act, 25 U.S.C. § 1912(a) provides in pertinent part:

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 proceeding and of their right of intervention.

The Indian Child Welfare Act requires more than effective actual notice; it specifically requires notice by registered mail. The state failed to provide such notice. The question then is whether the Graybeals were Indian custodians as defined by the Act.

The act provides that an Indian custodian is:

[A]ny Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.

25 U.S.C. § 1903(6). The trier of fact must determine whether the Graybeals (or either of them) qualify as Indian custodian(s). Here the fact was alleged by affidavit on motion for summary judgment. That affidavit is not refuted, and we treat the unrefuted allegation as true.

The Graybeals therefore had legal custody of A.S. under tribal law or custom prior to the September 1985 "Child in Need of Assistance" proceeding. We recognize that the Graybeals received A.S. from the Division of Family and Youth Services as foster parents and agents of the Division, but this alone is not sufficient to defeat tribal action. The Graybeals' decision to take care of A.S., within the ambit of Athabascan custom, was sufficient to entitle them to the notice required by 25 U.S.C. § 1912(a). As the affidavit of Mark Routzahn pointed out, "Relatives, such as the Graybeals, are under a duty under Village custom and tradition to assume responsibility for the care and nurture of the children when the children's natural parents are for some reason unavailable." This unrefuted testimony coupled with the unrefuted fact that Congress intended to recognize informal Indian customs in the Indian Child Welfare Act:

Paragraph (6) [of 25 U.S.C. § 1903] defines "Indian custodian." Where the custody of an Indian child is lodged with someone other than the parents under formal custom or law of the tribe or under state law, no problem arises. But, because of the extended family concept in the Indian community, parents often transfer physical custody of the Indian child to such extended family members on an informal basis, often for extended periods of time and at great distances from the parents. While such a custodian may not have rights under State law, they do have rights under Indian custom which this bill seeks to protect, including the right to protect the parental interests of the parents.

H.Rep. No. 1386, 95th Cong., 2d Sess. 20, reprinted in 1978 U.S.Code Cong. & Admin.News 7530, 7543, is dispositive of the question of whether the Graybeals were entitled to notice. They were. The notice provision was not satisfied.

We therefore set aside the custody order. The state is, of course, entitled to commence further proceedings in the Superior Court for the State of Alaska, if it chooses to do so.

Custody of A.S. will remain with the Graybeals pending a hearing wherein the notice of requirements of 25 U.S.C. § 1912(a) are fully complied with. At such hearing the court will have the opportunity to hear all contentions of all parties to this action.



Honorable Paul H. Roney, Senior Circuit Judge, for the Eleventh Circuit, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3