10 NICS App. 81, In re the Parental Rights of S.D. (February 2012)

IN THE PUYALLUP TRIBAL COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

S.D., Movant and Appellant,

v.

The Puyallup Tribe, Respondent and Appellee.

No. PUY-TPR-2006/10-009 and -012/PUY-CW-2003-0466 and -0643 (February 27, 2012)

SYLLABUS^*

Trial court terminated the parental rights of a mother in regards to two minor children, previously adjudged to be wards of the court, based on the mother having signed forms consenting to the termination of her parental rights in the presence of a court clerk. Mother then moved to “rescind” her consent on the grounds that she was coerced into signing the forms, she was intoxicated or going through withdrawal when she signed them, she did not sign the forms in the presence of the court, and the court failed to ensure that she understood the consequences of her actions. Trial court considered the motion to rescind as a motion for reconsideration and denied it as time-barred. Court of Appeals opines that trial court erred in treating the motion to rescind as a motion for reconsideration instead of a motion to revoke, which would not have been time-barred, and that the trial court lacked discretion to deny a motion to revoke consent to termination of parental rights. However, Court of Appeals holds that both consent forms were void ab initio because signing in the presence of the court clerk did not satisfy statutory requirement that consent to termination form be signed in the presence and with the approval of the court, and once in the presence of the court, the judge failed to advise the mother of the ramifications of signing the consent or otherwise ensure the mother understood the consequences of doing so. Court of Appeals vacates all orders, decisions and actions taken based on the consent, and remands for further action in the respective child welfare proceedings.

Before:

Douglas Nash, Chief Judge; Suzanne Ojibway Townsend, Appellate Judge; Michelle Demmert, Appellate Judge.

10 NICS App. 81, In re the Parental Rights of S.D. (February 2012) p. 82

Appearances:

Howard Comfort III, Attorney at law, for Appellant; Simone N. Green, Juvenile Presenting Officer, for Appellee.

OPINION

Douglas Nash, C.J.:

This appeal rises from several proceedings before the trial court involving two minor children of the Appellant.¹ At issue is the validity of two Consent for Termination forms signed by the Appellant on or about June 29, 2010, two orders issued thereupon terminating Appellant’s parental rights, and two orders denying Appellant’s motion to rescind her consent to termination.²

The Children’s Court held a hearing on July 1, 2010, at which the Appellant appeared pro se. As a result of that hearing, Appellant’s parental rights to the two children were terminated. On February 9, 2011, Appellant filed a Motion to Rescind Termination of Parental Rights asserting that there was newly discovered evidence that was not available that time of the trial, namely that she was coerced or tricked into signing the Termination of Parental Rights forms and/or that she was intoxicated and/or going through withdrawals when she signed that document. That motion was treated as a motion for reconsideration and was denied by order of the Children’s Court on May 31, 2011. It is from that order that this appeal arises. Appellant perfected her appeal by filing an amended notice of appeal on September 12, 2011. On September 27, 2011, this Court entered an order limiting the issues on appeal to the following:

10 NICS App. 81, In re the Parental Rights of S.D. (February 2012) p. 83

With regard to issue 2, the Tribe contends that the Children’s Court treatment of Appellant’s motion was not only proper under PTC 4.08.260, but that the Court was “quite generous” in even accepting the motion because that provision requires that the motion be filed within a ten-day time frame. Appellant asserts that the court erred because PTC 4.08.260 addresses motions for reconsideration and that the court should have treated the motion as one for revocation under PTC 7.04.1270 which contains no time limitations. (“The Court may hold a hearing to modify, revoke or extend a Court order under this Code at any time upon the motion of . . . (b) the child’s parents ….”) The Appellant’s declaration specifically asks the Court to “rescind or revoke” the consent to termination that she signed. While the motion was filed under a somewhat ambiguous title, the relief sought must be considered in determining which provisions of the code are applicable. We agree with Appellant that the motion should have been considered as a motion to revoke under PTC 7.04.1270.

With regard to issue 3, Appellant asserts that PTC 7.04.1050(a) applies to consent to termination of parental rights and that the Children’s Court has no discretion to deny her revocation of consent. That code section provides:

7.04.1050 Withdrawal of consents.

(a) Any consent given under the provisions of this chapter may be withdrawn by the person or agency which gave the consent at any time prior to the entry of a final decree of adoption. No reason need be stated and no hearing need be held on such withdrawal.

(b) All withdrawals must be in writing and notarized or witnessed by a Clerk of the Court, with the original being filed with the Court.

10 NICS App. 81, In re the Parental Rights of S.D. (February 2012) p. 84

(c) Within two years after the entry of a decree of adoption, said decree may be vacated upon a petition being filed and a showing that the consent which made the adoption possible was obtained through fraud or duress. Upon such a showing the Court shall vacate the decree and return the adopted person to that status he or she had prior to entry of the decree. [Res. 180599F (05/18/99); prior code § 7.01.2270].

The Tribe contends that PTC 7.04.1050(a) applies only to adoptions under subchapter 22 of the code where this section is found and not to consent to termination which is under subchapter 21. However, both of those subchapters are within Chapter 7.04 – Child and Family Protection Code. Because 7.04.1050(a) states that it applies to any consent under the provisions of this “chapter”, we agree with Appellant’s position that 7.04.1050 does apply to consent to termination of parental rights. The location of language within an ordinance does not negate the plain meaning of that language. Moreover, there is good reason for the ordinance to address withdrawal of consent to termination within the adoption subchapter.

We state our views on issues 2 and 3 here because they are of critical importance, and could be pivotal, in matters of termination of parental rights and because of the philosophy of the Puyallup Tribe in these matters as stated in the Puyallup Tribal Code, specifically:

7.04.020 Purpose.

The Child and Family Protection Code shall be liberally interpreted and construed to fulfill the following expressed purposes:

(a) To provide for the welfare, care and protection of the children and families on the Puyallup Indian Reservation;

(b) To preserve unity of the family, preferably by separating the child from his or her parents only when necessary;

(e) To secure the rights of and ensure fairness to the children, parents, guardians, custodians or other parties who come before the Children’s Court under the provisions of this Code;

(f) To recognize and acknowledge the Tribal customs and traditions of the Puyallup Tribe with regard to child-rearing. [Res. 180599F (05/18/99); prior code § 7.01.110];

And, with regard to the termination of parental rights:

10 NICS App. 81, In re the Parental Rights of S.D. (February 2012) p. 85

7.04.830 Purpose.

The purpose of this subchapter is to provide for the voluntary and involuntary termination of the parent-child relationship and for the substitution of parental care and supervision by judicial process. This subchapter shall be construed in a manner consistent with the philosophy that all parties shall be secure in their rights as enumerated in the Indian Civil Rights Act of 1968, 25 U.S.C. 1301 through 1341, and that the family unit is of most value to the community and the individual family members when that unit remains united and together, and that termination of the parent-child relationship is of such vital importance that it should be used only as a last resort when, in the opinion of the Court, all efforts have failed to avoid termination and it is in the best interests of the child concerned to proceed under this chapter. [Res. 180599F (05/18/99); prior code § 7.01.2100]

The Code charges this Court and tribal officers and officials to insure that the rights and interests of children and families are protected and that family units be maintained whenever possible. As important as issues 2 and 3 are, they are not dispositive in this case as there is a more pressing jurisdictional issue to address. Specifically, the court below did not give justice to the aforementioned Purpose statement when terminating Appellant’s parental rights. Accepting this Court’s invitation to address “such other issues as Appellant may wish to raise that go directly to the validity of the May 31, 2011, orders of the Children’s Court,” Appellant asserts that the Consent to Termination that she signed is invalid because the statutory requirements of the execution of that document were not complied with. Specifically, Appellant asserts that the consent to termination was not signed in the presence of the court, and that the court failed to ensure that Appellant understood the consequences of her actions. We agree.

PTC 7.04.900 provides:

7.04.900 Voluntary termination of parental rights.

Parental rights may be voluntarily terminated (relinquished) by a parent in writing, if signed by the parent in the presence and with the approval of the Court. Relinquishment shall not be accepted or acknowledged by the Court prior to 10 days after birth of the child. The Court shall ensure that the parent understands the consequences of the voluntary termination prior to approving it. [Res. 180599F (05/18/99); prior code § 7.01.2145]

10 NICS App. 81, In re the Parental Rights of S.D. (February 2012) p. 86

The transcript of the July 1, 2010 hearing clearly indicates that the consent to termination signed by the Appellant had been signed prior to the hearing. It was stated by the Children Services representative at that hearing that the consent was signed in “in the presence of, uh, Lazetta Kelley [sic], the court, Officer of the Court…” Transcript, p. 6. The Children Services representative requested that the court “either accept or not accept the Consent to Termination.” Transcript, p. 3. After addressing the Appellant, the Children’s Court granted the Tribe’s petition to terminate the parental rights of the Appellant. Transcript, p. 7. At oral argument, counsel for the Tribe indicated that Lazetta Kelley was a court clerk at the time Appellant signed the Consent to Termination. The transcript and oral argument firmly establish that the Consent was neither signed in open court nor signed in the presence of a judge.

The Tribe argues that signing the Consent in the presence of a court clerk, who is an officer of the court, satisfies the requirement of 7.04.900 that the consent be signed “in the presence and with the approval of the Court.” This argument has no merit. A court clerk is not the court. The authority, responsibility and obligations that the Tribe vests in its court lie with the judges of the court. While court clerks have clearly defined areas of responsibilities, they are not substitutes for judges in actions required under the code by the court as in 7.04.900, especially when the obligation is to insure that something as important and far reaching as the termination of the rights of a parent to her children is done properly.

The Tribe further argues that at the hearing where the Court accepted the Consent and thereupon granted the Tribe’s petition to terminate, a colloquy between the Judge and the Appellant satisfied the requirement that the Court “ensure the parent understands the consequences of the voluntary termination prior to approving it” as set forth in PTC 7.04.900. This court must again disagree with the Tribe. At the hearing, the Children Service’s representative expressly asked the Judge to advise Appellant “of the ramifications of such a consent.” Transcript, p. 3. While the Judge explained to Appellant her procedural rights to have an attorney present, introduce evidence, and appeal; and the Judge repeatedly asked Appellant for a “yes” or “no” answer to whether she understood the consequences of signing the Consent, in no way did the Judge advise Appellant of the “ramifications” of signing the consent or otherwise “ensure” that Appellant understood the consequences of doing so. Indeed, the transcript of the colloquy makes clear to this Court that Appellant did not understand the permanent nature of a termination order and what the effect of the action had on her parental rights.

This court holds that Appellant’s Consent to Termination of Parental Rights was not signed in the presence of the court as required by PTC 7.04.900 and is therefore invalid and void ab initio. Nothing that occurred at the July 1, 2010 hearing cured the fact that the Consent was

10 NICS App. 81, In re the Parental Rights of S.D. (February 2012) p. 87

not signed in the presence of the court or ensured that Appellant understood the consequences of her actions. Consequently, all orders, decisions and actions taken based upon that Consent to Termination are invalid, including the orders granting the Tribe’s petitions to terminate the parental rights of Appellant. While we conclude that the Children’s Court erred by treating Appellant’s Motion to Rescind as a motion for reconsideration, and we further conclude that PTC 7.04.1050(a) gives Appellant the right to withdraw her Consent, those issues are moot because the Consent was never valid.

While we hereby vacate the orders terminating Appellant’s parental rights, both children that are the subject of these proceedings remain wards of the Children’s Court and in the custody of the Tribe pursuant to the child welfare proceedings in their respective cases.  Our opinion is not intended to alter the status of the children or the mother as regards the child welfare proceedings.

These matters are remanded to the Children’s Court for action consistent with this opinion.

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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.

Each child was the subject of a child welfare (“CW”) proceeding assigned case numbers CW-2003-0466 and CW-2003-0643, respectivley. Appellant’s parental rights as to each child were terminated in termination of parental rights (“TPR”) proceedings assigned case numbers TPR-2006/10-009 and TPR-2006/10-012. Upon issuance of the orders terminating Appellant’s parental rights, an Order to Close and Seal File was issued in regards to each child under child welfare case numbers CW-07/03-466 and CW-09/03-643, which are similar to, but distinct from, the aforementioned child welfare case numbers. Upon issuance of the orders terminating Appellant’s parental rights, child in need of care (CINOC) proceedings were also opened for each child under case numbers CINOC 07/10-007 and CINOC-07/10-008.

The Children’s Court issued separate, but identical orders terminating parental rights under the TPR case numbers. Despite listing the TPR case number, each of these orders was encaptioned “In the welfare of” the respective child’s name. Appellant filed a single motion to rescind her consent to termination, and the caption of her motion included the original Child Welfare case numbers for each child instead of the TPR case numbers. The Tribe’s Presenting Officer then filed separate, but identical, responses under the Child Welfare case numbers; the Children’s Court issued separate, but identical orders under the Child Welfare case numbers denying the motion to rescind; and Appellant filed separate, but identical notices of appeal under the Child Welfare case numbers. This Court consolidated these four cases (two CW and two TPR) for purposes of the appeal. For the sake of simplicity, unless otherwise noted, this Opinion refers to each of these twin proceedings, pleadings and orders in the singular.