10 NICS App. 71, In the Guardianship of J.J. (January 2012)
IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON
S.L.O., Petitioner/Appellant/Cross-Appellee,
and
C.R.J., Respondent/Appellee/Cross-Appellant.
No. MUC-G-01/11-001/MUC-CIJ-3/05-030 (January 6, 2012)
SYLLABUS*
Grandmother filed separate petitions for guardianship and visitation of her grandson that asserted grandson had been abandoned and suggested grandson had been or would be subject to abuse and neglect while in the custody of Respondent. Trial court reviewed both petitions pursuant to general guardianship procedures, denied the petition for guardianship, and granted the petition for visitation. Both parties appealed. Court of Appeals holds that Petitioner’s filings established reason to believe that grandson was a youth in need of care as defined by tribal ordinance, and trial court therefore lacked jurisdiction to hear either petition outside of statutory procedures concerning youth in need of care. Court of Appeals vacates both trial court rulings, dismisses both petitions, and orders trial court staff to take necessary and appropriate action to ensure compliance with statutory provisions concerning youth alleged to be in need of care.
OPINION
I. SUMMARY
This matter initially came before the Court of Appeals pursuant to a “Motion” (notice) to appeal filed on February 24, 2011 by S.L.O., the Petitioner in the case below (hereinafter “Petitioner”).1 Petitioner challenges the February 8, 2011 Order of the Muckleshoot Youth
10 NICS App. 71, In the Guardianship of J.J. (January 2012) p. 72
Court denying her petition for guardianship of her grandson, J.J., in case number MUC-G-01/11-001.
On March 11, 2011, C.R.J., the father of J.J. and the Respondent below, (hereinafter “Respondent”) filed several documents with the Youth Court, including a “Motion” (notice) to appeal all visitation rights granted to the Petitioner in a February 8, 2011 Order Granting Visitation issued by the Youth Court. The Order Granting Visitation was issued under the caption of “In re the Custody of” J.J. and was assigned case number MUC-CIJ-3/05-030.
For the reasons discussed below, this Court hereby vacates both the February 8, 2011 Order of the Youth Court Denying Petition for Guardianship in case number MUC-G-01/11-001 and the February 8, 2011 Order Granting Visitation issued under case number MUC-CIJ-3/05-030. This Court further orders that Petitioner’s January 4, 2011 Petition for Guardianship and Petitioner’s January 12, 2011 Motion for Visitation be dismissed.
II. APPLICABLE LAW
“The Appellate Court shall decide all by majority vote cases upon the briefs, memoranda and statement [sic] filed plus the record of the trial court without oral argument unless either party requests oral argument and shows to the court that such will aid the court’s decisions, or unless the Appellate Court decides on its own motion to hear oral argument.” MTC 9.03.01(h). Each party filed a statement in the form of an affidavit in support of their respective notices of appeal.2 Neither party filed a formal written brief as allowed by MTC 9.01.03(g), and neither
10 NICS App. 71, In the Guardianship of J.J. (January 2012) p. 73
party requested oral argument. This Court has carefully reviewed the parties’ statements and the record of the trial court and concludes that neither oral argument nor additional briefing would assist this Court in making its decision.3
This Court has recently held that “MTC Chapter 12A.12 does not provide the Muckleshoot Youth Court with general guardianship jurisdiction in cases where the petition for guardianship or other information received by the Court alleges or otherwise gives reason to believe that a youth is in need of care as defined by the Youth Ordinance.” In the Guardianship of Three Indian Minors, 10 NICS App. 29, 36 (Muckleshoot Tribal Ct. App. 2011). The Youth Court itself “must fully comply with MTC 12A.09 whenever a petition or other information received by the Court suggests that a youth is in need of care.” Id.4
III. DISCUSSION
A. Petition for Guardianship
The Record indicates that Respondent, J.J.’s father, was awarded full custody of J.J. on May 10, 2005. Petitioner filed her petition for guardianship over the objections of both of J.J.’s biological parents. The Petition for Guardianship appears to be motivated primarily by Petitioner’s avowed close relationship to her grandson and her belief that she is a better custodian than the father. Primary motivation notwithstanding, Petitioner’s filings in the Youth Court establish Petitioner, and anyone receiving the Petition, as persons “having reason to believe that a youth is in need of care, as defined in this title.” MTC 12A.09.020(a).
The trial court record includes two copies of the Petition, each with a different attachment.5 The Petition states the reason Petitioner wants to be guardian is “To provide a safe and secure home, free of domestic violence, and free of Alcohol & Drugs [sic].” An affidavit submitted with the first copy of the petition in support of a waiver for the filing fee states “I am seeking guardianship … du [sic] to Abandonment [sic] of parents for at least 5 years.” The
10 NICS App. 71, In the Guardianship of J.J. (January 2012) p. 74
second copy of the Petition in the file is accompanied by a page of handwritten notes that appear to be in two different sets of handwriting. It is not clear from the record, but it appears the second copy with attached handwritten notes may have been an attachment to the Family Home Study of Petitioner filed on January 27, 2011. The page of notes includes the following statement in handwriting that clearly matches Petitioner’s handwriting on the Petition: “Domestic violence from the father to his mother. I am in fear of [J.J.] being injured or abused if he is with the father.” 6 The social worker who conducted the Family Home Study concluded her January 27, 2011 report by stating that the biological parents, one of whom is the Respondent and legal custodian of J.J., should not even be allowed visitation with J.J. until “after completing drug and alcohol assessments, psych evaluation, parenting classes, and domestic violence evaluation.”
The Youth Ordinance defines a youth in need of care as a child that has been “abandoned,” “abused,” or “neglected.” MTC 12.02.020(mm). Although the various filings stopped short of directly accusing Respondent of having abused J.J., between January 4 and January 27, 2011, the Youth Court received documents from the Petitioner and from a social worker that unequivocally stated Respondent had “abandoned” J.J. and strongly suggested that J.J. either had been or would be subject to abuse and neglect while in the custody of Respondent. These filings established “reason to believe” that J.J. was in need of care, as defined by the Ordinance. MTC 12A.09.020(a). As such, for the reasons set forth in our decision in In the Guardianship of Three Indian Minors, supra, the Youth Court lacked jurisdiction to hear this Petition as a general guardianship matter, and should have proceeded under the MTC 12A.09 provisions for a youth in need of care.
B. Petition for Visitation
On January 12, 2011, eight days after filing her Petition for Guardianship in the case assigned No. MUC-G-01/11-001, J.J.’s grandmother filed a “Motion [Petition for] Visitation.” For unknown reasons, the Petition for Visitation was assigned the cause number of the parents’ ongoing custody case, MUC-CIV-3/05-030, rather than assigned to the Petitioner’s guardianship case.7, 8 There is nothing in the record of either proceeding indicating why the judge did not dismiss the grandmother's petition for visitation in the custody case, given that she was not a party to that case.
10 NICS App. 71, In the Guardianship of J.J. (January 2012) p. 75
An order granting limited visitation (two Saturdays per month) was issued under the custody cause number on the same day as the order denying the Petition for Guardianship was issued under cause No. MUC-G-01/11-001.9 On March 11, 2011, following Petitioner’s appeal of the denial guardianship, Respondent filed several motions and affidavits, including a “Motion Appeal all visitation rights.” All of Respondent’s March 11, 2011 filings were assigned to the guardianship cause number.10
If viewed as a separate case, Respondent’s appeal of the grant of visitation would arguably be untimely, having been filed thirty one days after the date of the filing of the Order Granting Visitation. However, we conclude that Respondent’s appeal of the grant of visitation should be treated as a cross-appeal in the guardianship case. Regardless of whether it was the Petitioner or the court clerk who assigned the Petition for Guardianship and the Petition for Visitation to different cause numbers, there was no rational basis for doing so. Despite the different cause numbers, the Petition for Guardianship and the Petition for Visitation both involve the same parties and the same facts and were both heard at the same hearing on February 1, 2011. It is simply not possible to understand why the case numbers were assigned as they were. There is nothing in the code that allows a grandparent to intervene in child custody proceedings, and nothing in the record indicates Petitioner sought, or was granted, intervener status, so she was not even a party to the custody case.11 Because there was no basis in Muckleshoot law for the Petition for Visitation to be assigned to the custody case, the Petition for Visitation should have been assigned to the guardianship case, if heard at all.12 We shall therefore treat Respondent's appeal of the Order Granting Visitation as a cross-appeal in the
10 NICS App. 71, In the Guardianship of J.J. (January 2012) p. 76
Guardianship proceeding. Because Petitioner did not file proof of having served her notice of appeal on Respondent, there is no way to know when Respondent had actual notice of the appeal, and therefore no basis for this Court to rule conclusively, as a matter of law, that Respondent’s notice of cross-appeal was untimely.
Turning to the merits of Respondent’s appeal of the Order Granting Visitation, we conclude that Order must be vacated for the same reasons as the Order Denying Guardianship must be vacated. As soon as the Youth Court received Petitioner’s filings in the guardianship case giving reason to believe that J.J. was a youth in need of care, the Court was divested of jurisdiction to proceed in any manner other than an MTC 12A.09 youth in need of care proceeding. Once the totality of the filings in any proceeding suggest that a child is in need of care, it would be absurd for the Youth Court to then hear a petition for visitation or issue any order outside of the scope of the youth in need of care proceeding that kept the potentially in-need child in the allegedly-abusive home for any amount of the time.13 The law does not favor absurd results.
IV. CONCLUSION AND ORDER
As we explained in our Opinion in In the Guardianship of Three Indian Minors, supra, the “detailed and elaborate scheme” set forth in MTC 12A.09 is the mandatory and exclusive process by which allegations of abuse, neglect and abandonment are to be investigated and heard by the Muckleshoot Youth Court. Three Indian Minors, at 5. MTC 12A.09 is designed both to protect youth from abuse and neglect, and to protect parents and others who are accused of abuse and neglect, by requiring an immediate investigation and other actions to establish the merits of the allegations and protect the youth involved. Id.; MTC 12A.09.030 et seq. The purposes of the Youth Ordinance include “recognizing that parents and youths share rights to a permanent and sustaining family.” MTC 12.01.010. For these reasons, the Youth Ordinance expressly requires the court clerk to “immediately notify the Youth Home Director in writing of any action begun in Youth Court by someone other than the Tribe.” MTC12A.09.010(c) (emphases added). By entertaining a petition for guardianship or a petition for visitation, as the court did in these cases, or following any other procedure other than MTC 12A.09 once allegations of abuse, neglect or abandonment are received, the court violates the statutory right of the youths to receive the immediate protection of the Tribe at the same time that it violates the statutory rights of the parents (or other alleged abuser) to an immediate investigation and hearing that might disprove the allegations.
Based on the foregoing, we hereby vacate the Order Denying Guardianship in case No. MUC-G-1/11-001 and vacate the Order Granting Visitation in Case No. MUC-CIJ-3/05-030.
10 NICS App. 71, In the Guardianship of J.J. (January 2012) p. 77
We also hereby dismiss the Motion/Petition for Guardianship filed on January 4, 2011 in case No. MUC-G-1/11-001 and the Motion/Petition for Visitation filed on January 12, 2011 in case No. MUC-CIJ-3/05-030 because the Youth Court lacked jurisdiction to hear either petition outside of a MTC12A.09 proceeding.14 Finally, while we are mindful that the Youth Court has already conducted a fact-finding hearing, considered a social worker’s home study report of Petitioner as part of the evidence, and determined that the best interests of the youth were served by keeping the youth in the custody of his father, nothing in the record clearly establishes that this matter has ever been properly reported to “the tribal law enforcement department, the Youth Home Director, or a Youth Caseworker” as required by MTC 12A.09.020(a).15 We therefore direct the clerk to comply with MTC12A.09.010(c) by immediately notifying the Youth Home Director or such other appropriate Tribal officials in writing of this action so that such officials may determine whether further action is necessary.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
Chapter 12.07 of the Muckleshoot Youth Ordinance requires confidentiality in Youth Court proceedings, and section 12.07.020 expressly prohibits the release of “judgments” or the publication of “identifying information concerning any youth, parent, guardian, or other custodian or person appearing as a witness in a proceeding held pursuant to this title … unless for good cause shown it is specifically permitted by order of the Court.” The ordinance further states “no person shall disclose any identifying information concerning a matter conducted pursuant to this title”, directs the Youth Court Judge and Judicial Officer to warn those in attendance to observe the confidentiality provisions, and provides for civil penalties for those in violation of the confidentiality provisions. Id. The Court of Appeals concludes that the need for future litigants and the Muckleshoot Tribe to know of the substance of this ruling and to be able to follow its precedent provides good cause to publish this Opinion in the official reports of the Tribe’s Appellate Court decisions. However, in order to further the objectives of MTC 12.07.020, this Opinion will use only the initials of any youth, parent, custodian, or witness referenced in this Opinion. The parties are hereby reminded of their independent obligation to maintain the confidentiality of these proceedings as provided for in MTC 12.07.020.
It is debatable whether either party’s notice of appeal was timely filed under MTC 9.03.01(a), which requires a notice of appeal to be filed within ten days after entry of the order or judgment being appealed. Petitioner’s notice of appeal was filed sixteen days after the Order Denying Petition for Guardianship is stamped as “filed” in the trial court. However, the Muckleshoot code does not define “entry” or establish whether “days” refers to calendar days or business days; the clerk did not make a proper notation in the court’s docket or mail the Order to the parties until February 10; and the code does not indicate, as the rules of certain other courts do, whether additional time is to be added when a document is served on a party by mail. Thus, there is no basis for this Court to rule conclusively, as a matter of law, that Petitioner’s notice of appeal was untimely. Similarly, Respondent’s notice of appeal was filed a full thirty one days after the Order Granting Visitation was filed. If treated as an original appeal in a separate proceeding, despite similar issues regarding the rules and the clerk’s actions, Respondent’s notice of appeal would almost certainly be dismissed as late. However, per the discussion in the body of this Opinion, this Court concludes that Respondent’s notice of appeal is best treated as a cross-appeal in the guardianship proceeding. The Muckleshoot appellate rules do not address cross-appeals, and Petitioner did not file proof of having served her notice of appeal on Respondent. Because there is no way to know when Respondent had actual notice of the appeal and there is no tribal rule or law governing cross appeals, there is no basis for this Court to rule conclusively, as a matter of law, that Respondent’s notice of cross-appeal was untimely.
The Court of Appeals deferred issuing any order either accepting or denying review of Petitioner’s and Respondent’s notice of appeal while the Court of Appeals completed its review of an earlier-filed appeal involving facts and legal issues similar to those raised by Petitioner’s notice of appeal in this case.
MTC 12A.09 sets forth the Tribe’s comprehensive scheme for protecting the interests of parents and encouraging family preservation as well as protecting the health, safety and welfare of the youth when a youth is alleged to be in need of care.
Except for the attachments, it is clear these are two copies of the same document, signed by Petitioner on January 4, 2011 and filed in the Youth Court on January 4, 2011.
The affidavit filed with Petitioner’s Motion for Appeal to this Court likewise states “I am very concerned for my Grandson’s safety and well being.”
It is not known whether it was Petitioner or the clerk that hand wrote the cause number for the custody proceeding into the caption of the Petition for Visitation.
It appears both the petition for guardianship and petition for visitation were prompted by the parents’ filing of an updated agreed parenting plan on January 4, 2011.
Pursuant to the Muckleshoot Youth Ordinance, the Court sits as the Youth Court when hearing matters filed under the Youth Ordinance. Because a custody proceeding is not governed by the Youth Ordinance, it would not be proper to refer to the Court as the “Youth Court” in the custody case, even though the same judge heard and ruled on both matters following what was essentially a single hearing.
As with the Petition for Visitation, note 7 supra, the case number is hand written in the respective captions and it is impossible to tell if it is the clerk or the party who assigned the case number for these documents.
The Motion/Petition for Visitation cites RCW 26.09.240 as legal authority for the Petition. However, RCW 26.09.240 was declared unconstitutional and invalid by the Washington State Supreme Court in In re Parentage of C.A.M.A., No. 75262-1, April 7, 2005. The Petition cites no Muckleshoot law as legal authority for the filing of the Petition. Title 14 of the Muckleshoot code, entitled “Title 14 Domestic Relations Ordinance: Paternity, Custody, Visitation & Child Support”, addresses paternity actions only. While Title 14 provides that a paternity order may contain provisions “concerning … visitation privileges,” MTC 14.01.060(d), it also establishes that the parties to a paternity action are the child, mother, and any man presumed to be the father, MTC 14.01.030. Title 14 contains no provisions whatsoever addressing visitation by a grandparent or other third party over the objections of the person[s] having legal custody of a child, whether in the context of a paternity action or any other legal proceeding. The matters under review here did not, of course, arise from a paternity action. We express no opinion as to whether other sources of Muckleshoot law, including custom law, provide legal authority for a Muckleshoot Court to grant visitation over the objections of the person(s) having legal custody of a youth.
By reviewing the Petition for Visitation and the Petition for Guardianship at what was essentially a single hearing, the Youth Court itself apparently recognized that the Petition for Visitation should be heard as part of the guardianship proceeding rather than part of the custody proceeding. Indeed, the Judge stated at the outset of the hearing that the matters were being “consolidated”, but then conditioned that by stating “for today.”
Indeed, upon receipt of the Petitioner’s filings giving reason to believe that J.J. was in need of care, the Court arguably should have stayed the custody proceeding between the parents until the Petitioner’s allegations had been promptly investigated as required by MTC 12A.09. However, that issue is not before this Court.
Nothing in this Opinion prohibits Petitioner from filing a new petition of any sort. However, any petition shall identify valid legal authority for the filing of the petition and must comply with this Opinion and the express terms of the Youth Ordinance, including the requirement of MTC 12A.09.020(a) that “[a]ny person having reason to believe that a youth is in need of care … shall immediately report the matter to the tribal law enforcement department, the Youth Home Director, or a Youth Caseworker.” (Emphasis added.)
In In the Guardianship of Three Indian Minors, Tribal child welfare and law enforcement personnel observed the hearing on the merits and therefore had actual notice of the action and the allegations. Consequently, we did not order further action by the Youth Court in that case. Three Indian Minors, supra, 10 NICS App. at 36. Here, the record does not indicate whether Tribal child welfare or law enforcement personnel observed the hearing, nor does the record indicate whether the social worker who conducted the home study was a “youth caseworker” as defined by MTC 12.02.020(ii).