In re: In the Matter of the Adoption of TLN and DSN, minor children

Filing 4

OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; dismissing 1 Motion for Judgment (lmc, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

IN RE PETITION OF,
HERBERT SHAWN NOWLIN, JR.,
IN THE MATTER OF THE ADOPTION
OF T.L.N. AND D.S.N.,
minor children,

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Case No. 17-CV-666-TCK-JFJ

OPINION AND ORDER
On December 8, 2017, Petitioner Herbert Shawn Nowlin initiated this action by filing a pro
se “Motion for Declaratory Relief Pursuant to the Complete Preemption Doctrine” (Dkt. # 1), and
a letter seeking additional time to file a motion to proceed in forma pauperis (Dkt. # 2). In the letter,
Nowlin described his motion as a “Civil Petition for Declaratory Relief,” and indicated that he
would submit a motion to proceed in forma pauperis within a week. Dkt. # 2 at 1. To date, Nowlin
has not submitted a motion to proceed in forma pauperis. For the following reasons, the Court finds
that Nowlin’s “motion” shall be dismissed without prejudice and without leave to amend.
BACKGROUND
Nowlin “plead[s] for declaratory relief pursuant [to] the preemptive force of the (ICWA),
Indian Child Welfare Act, 25 U.S.C. §§§ 1901, 1902, 1903, et seq.” Dkt. # 1 at 1. In support of his
request for declaratory relief, Nowlin alleges the following facts. His twin sons, T.L.N. and D.S.N.,
were born in Virginia in 2007 and “were designated by Virginia Department of Vital Records, as
agreed upon by the parents, as African American descendant males.” Id. At some point, the twins
were voluntarily placed in the custodial care of their maternal grandparents, Rickey and Deanna
Turnham. Id. In 2010, the twins’ mother, Amber McDaniel, was released from state prison and
“returned to live with the Turnhams.” Id. at 2. Nowlin is currently serving a federal prison sentence

in Yazoo City, Mississippi, and anticipates that he will be released in “approximately 24-months.”
Id. at 2; Dkt. # 2 at 1.
In 2017, the Turnhams initiated adoption proceedings in Rogers County District Court. Dkt.
# 1 at 2. On September 29, 2017, McDaniel signed a consent-to-adoption form, voluntarily
surrendering her parental rights and consenting to the Turnhams’ adoption of the twins. See id. at
2, 8-9. On the form, McDaniel certified that she and the twins are members of the Cherokee Nation.
Id. at 9. Nowlin has participated in the adoption proceedings by “fil[ing] several motions contesting
. . . [the] adoption of his sons.” Id. at 2-3. According to Nowlin, the state district court issued “[a]n
order invoking Tribal Jurisdiction as to the proceedings to terminate” his parental rights. Id. at 2.1
After setting forth these facts, Nowlin asserts that his “petition is related in content” to the
state court adoption proceedings, but “is differently purposed in form, and is by no means defensive
in nature.” Id. at 3. Nowlin further asserts that this Court has jurisdiction over this action under 28
U.S.C. § 1331 because he requests declaratory relief on questions arising under the ICWA. See Dkt.
# 1 at 3 (citing § 1331 as basis for this Court’s jurisdiction); id. at 5 (stating that “[p]aternal rights
under ICWA congressional statute raises question of Federal law”). In asserting that this Court has
jurisdiction under § 1331, Nowlin also refers to the “well-pleaded complaint rule,” discusses
multiple cases involving the complete preemption doctrine, and contends that “[i]f complete
preemption exists . . . it authorizes removal to federal court even in circumstances where the
complaint has been pleaded in a way that artfully avoids mention of any federal law claims.” Dkt.
# 1 at 3-5. Nowlin further contends that “[c]omplete preemption transforms state law claims into
federal claims, thereby creating a basis for federal question jurisdiction.” Id. at 4.

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Nowlin refers to “[a]n order invoking Tribal Jurisdiction,” but the only order he attaches
with his motion appears to be a scheduling order for a December 7, 2017 hearing on a motion to
appoint an attorney for the twins. See Dkt. # 1 at 10.
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Nowlin identifies four “federal law issues” on which he seeks declaratory relief:
(a) Would a judgment in Plaintiffs’ (The Turnhams pursuant ICWA proceedings)
violate the Indian Child Welfare Act, 25 U.S.C. §§§ 1901, 1902, 1903, et seq.;?
(b) Does Plaintiffs’ actions abuse the ICWA in opposition to its Congressional
Intent;?
(c) Does the Cherokee Nation’s claim on his sons’ descendency [sic], reach beyond
the Congressionally delegated reach the ICWA was legislated to have?;
(d) Does/Will the December 7, 2017 state proceedings result in an Unconstitutional
application of the ICWA?
Id. at 5.
Nowlin “contends that [these] presented questions regarding the constitutional application
of the ICWA, as to the termination of his Paternal Rights, completely preempts, his
decleratory/injunctory [sic] claims/requests for relief.” Id. at 3. In conclusion, Nowlin states that
“[i]n invoking the preemption doctrine” he asks this Court “for declaratory and Injunctive relief, and
the application of 25 USCS § 1911(b); § 1911(c); and § 1911(d).” Id. at 7.
ANALYSIS
Because Nowlin is a pro se litigant, the Court must liberally construe his pleadings. Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). This rule of liberal construction “means that
if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could
prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, in applying this
rule the Court “will not supply additional factual allegations to round out a plaintiff’s complaint or
construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74
(10th Cir. 1997).
Applying these principles, the Court finds that Nowlin’s “Motion for Declaratory Relief
Pursuant to the Complete Preemption Doctrine” should be construed as a complaint filed to initiate
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a civil action for declaratory judgment as to his federal rights under the ICWA. So construed, the
Court finds that the complaint shall be dismissed without prejudice under the Younger abstention
doctrine. See Younger v. Harris, 401 U.S. 37 (1971).
In this action, Nowlin asserts that he seeks declaratory relief on four questions relating to the
state district court’s application of the ICWA in the underlying, and apparently ongoing, state
adoption proceedings. See Dkt. # 1. But because the Declaratory Judgment Act, 28 U.S.C. § 2201,
“does not confer jurisdiction upon federal courts,” Nowlin must identify an independent basis of
jurisdiction. See Devon Energy Prod.Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195,
1202 (quoting Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 964 (10th Cir.
1996)). As discussed, Nowlin asserts that this Court has federal-question jurisdiction under 28
U.S.C. § 1331 either under the complete preemption doctrine or because his claims “arise under”
the ICWA. Dkt. # 1 at 3, 5.
Under § 1331, federal district courts have “original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. As the party
invoking federal jurisdiction, Nowlin bears the burden to establish that this court has subject-matter
jurisdiction under § 1331. See Devon Energy Prod. Co., L.P., 693 F.3d at 1201 (noting that party
invoking federal jurisdiction bears burden to identify basis of court’s jurisdiction).
As a preliminary matter, to the extent Nowlin relies on the complete preemption doctrine to
support his assertion of federal-question jurisdiction, the Court finds that reliance misplaced. “[F]or
the complete-preemption doctrine to apply, the challenged claims must ‘fall within the scope of
federal statutes intended by Congress completely to displace all state law on the given issue and
comprehensively to regulate the area.’” Devon Energy Prod. Co., L.P., 693 F.3d at 1204-05
(quoting Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1221 (10th Cir. 2011)). Significantly,

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“the Supreme Court has recognized complete preemption in only three areas: § 301 of the Labor
Management Relations Act of 1947 (“LMRA”), § 502 of the Employee Retirement Income Security
Act of 1974 (“ERISA”), and actions for usury against national banks under the National Bank Act.”
Id.
Nowlin does not cite, nor has this Court found, any case law demonstrating that Congress
intended to “completely displace all state law” regarding the adoption of Indian children or to
“comprehensively regulate th[at] area” through its enactment of the ICWA. See Devon Energy
Prod. Co., L.P., 693 F.3d at 1204-05. Rather, the ICWA specifically provides tribal courts and state
courts with concurrent jurisdiction over adoption proceedings involving Indian children. 25 U.S.C.
§ 1911; see also Morrow v. Winslow, 94 F.3d 1386, 1395-96 (10th Cir. 1996) (interpreting ICWA’s
legislative history as “indicat[ing] that ‘the ICWA establishes “minimum Federal standards and
procedural safeguards in State Indian child custody proceedings,”’” but as not indicating “that the
ICWA intended to allow federal court interdiction of ongoing state custody disputes involving
Indian children” (quoting Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 590 n.3 (10th Cir. 1985))).
Thus, to the extent Nowlin relies on the complete preemption doctrine to support his assertion of
federal-question jurisdiction, he fails to demonstrate that the doctrine applies.
Nonetheless, the Court finds that a liberal construction of Nowlin’s complaint supports that
his claims for declaratory relief “arise under” the ICWA. Section § 1914 of the ICWA “allows a
petition to invalidate a state court foster care placement or termination of parental rights action on
the grounds that it violated §§ 1911, 1912, or 1913, to be brought in any court of competent
jurisdiction.” Morrow, 94 F.3d at 1394. Thus, the Tenth Circuit has held “that federal district courts
have jurisdiction under 28 U.S.C. § 1331 over complaints in which a plaintiff alleges a violation of

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§§ 1911, 1912, or 1913.” Morrow, 94 F.3d at 1394 (citing Roman-Nose v. New Mexico Dep’t of
Human Servs., 967 F.2d 435, 437 (10th Cir. 1992)).
As discussed, Nowlin’s four claims for declaratory relief focus on whether the state district
court either has misapplied or will misapply the ICWA in the course of the ongoing state adoption
proceedings, and in seeking relief he specifically refers to § 1911. See Dkt. 1 at 5, 7. Thus, a fair
reading of Nowlin’s complaint suggests that he is alleging a violation, or anticipated violation of his
rights under the ICWA. With the benefit of liberal construction and Morrow’s guidance, the Court
finds that Nowlin’s complaint sufficiently invokes this Court’s jurisdiction under § 1331.
However, the Court further finds that Morrow mandates that this Court abstain from
exercising that jurisdiction. In Morrow, the Tenth Circuit stated that “it is not clear from the
language of § 1914 that Congress intended to allow federal courts to enjoin ongoing state adoption
proceedings” and concluded that “§ 1914 and related provisions of the ICWA do not preclude [a
federal court’s] consideration of abstention” under Younger. Morrow, 94 F.3d at 1395. Notably,
even when a federal court has jurisdiction to grant declaratory relief, the Younger abstention
doctrine requires a federal court to decline to exercise that jurisdiction when three conditions are
met: (1) state judicial proceedings are ongoing, (2) those proceedings implicate an important state
interest, and (3) those proceedings offer an adequate opportunity to litigate federal constitutional
issues. Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003). Here, all three
conditions are satisfied. First, Nowlin’s pleadings demonstrate that the state adoption proceedings
are ongoing. Second, the adoption proceedings implicate an important state interest, even when
those proceedings involve the application of ICWA. See Morrow, 94 F.3d at 1393 (“It cannot be
gainsaid that adoption and child custody proceedings are an especially delicate subject of state
policy.”). Third, the Court finds nothing in Nowlin’s pleadings suggesting that he has not had, or

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will not have, an adequate opportunity in state court to litigate any federal issues arising under the
ICWA. In fact, Nowlin alleges that he has filed several motions in state court contesting the
adoption. But he does not allege that the state court has prevented him from asserting in these
motions his concerns regarding the state court’s application of the ICWA. For these reasons, the
Court finds that this action must be dismissed without prejudice under the Younger abstention
doctrine.
Finally, while dismissal under the Younger abstention doctrine is without prejudice, the
Court finds that it need not grant Nowlin an opportunity to amend his complaint. Here, any
amendment would be futile so long as the state adoption proceedings remain pending. See Jefferson
Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999)
(noting that district court may deny leave to amend if amendment would be futile).
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Nowlin’s “Motion for Declaratory Relief Pursuant to the Complete Preemption Doctrine”
(Dkt. # 1) is dismissed without prejudice.

2.

This is a final order terminating this civil action.
DATED this 12th day of February 2018.

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