13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
In re the Guardianship of a Tulalip Minor
D.B., Petitioner/Appellant,
and
M.S. and O.S., Petitioners/Appellees,
and
C.S., father and S.B., mother, Respondents/Appellees,
and
beda?chelh, Respondent.
No. TUL-CV-AP-2014-0101 (March 31, 2015)
(original opinion issued February 9, 2015)
SYLLABUS*
Paternal and maternal grandparents filed competing petitions for custody of a youth adjudged to be in need of care. Tribe’s child welfare agency concluded that each petitioner was “eligible” to serve as a guardian, but did not make a recommendation as to which petitioner would best serve the interests of the child. Trial court appointed a guardian ad litem (GAL) to represent the best interests of the child. Trial court granted both petitions for guardianship, leaving it to the parties to negotiate the schedule for shared physical custody. Maternal grandmother appealed, arguing, among other things, that trial court failed to give proper weight to recommendations of the GAL. A two-Justice majority of the Court of Appeals holds that because the trial court did not address evidence presented in the GAL report and did not apply the appropriate legal standard to the GAL’s report and recommendations, the trial court abused its discretion. Dissenting Justice would hold that trial court order was supported by substantial
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 13
evidence and that appellate court should defer to trial court’s findings of fact. Trial court order reversed in part.
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Before: |
Jane M. Smith, Presiding Justice; Douglas Nash, Justice; Elizabeth F.M. Nason, Justice. |
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Appearances: |
Emily Howlett, Attorney for the Appellant; M.S. and O.S., pro se. |
AMENDED OPINION
Nash, J., in which Nason, J., concurs:
Procedural History
This case came before the Court of Appeals pursuant to the Notice of Appeal filed by Petitioner D.B. on March 28, 2014. Following requests for extension of time, briefing, and oral argument, this Court issued its original Opinion, with the dissenting Opinion of Justice Smith, on February 9, 2015. On February 19, 2015, beda?chelh filed a motion for reconsideration suggesting that the majority Opinion had misapprehended certain facts in the trial court record. beda?chelh did not request the Court to reconsider its analysis or holding. On February 26, 2015 Appellants filed a response asking this Court to deny the motion for reconsideration based on time considerations and beda?chelh’s failure to file a response to Appellant’s opening brief on the merits. In light of these developments, the majority now issues this amended Opinion.
Background
The child who is the subject of this guardianship proceeding was the subject of a Youth in Need of Care case opened in November, 2011. The child was originally placed in the temporary custody of his maternal grandmother on November 3, 2011. On November 8, 2011, beda?chelh filed a Declaration of Emergency Change of Placement and on the next day the child was placed with his paternal grandparents because they lived on the Tulalip reservation and the maternal grandmother did not. GAL Report p. 3. The maternal grandmother had no visitation rights until December 22, 2011 when the court issued an order establishing a visitation schedule for four specific days. An incident occurred on December 27, 2011, in which the paternal grandparents took the child to his parents’ residence in their car. The paternal grandparents attempted to get the child’s mother to leave with them before the police arrived to investigate the domestic violence that had occurred there. GAL p. 5. As a result, the child was placed with his maternal grandmother again where he remained for the next 18 months. In August, 2013, the child was removed from the maternal grandmother’s custody because she allowed the parents to have a supervised visit with the child and the child was placed again with the paternal grandparents. Although it was later reported to beda?chelh that the paternal grandparents had allowed the child’s father to be with his son in June, 2013, beda?chelh did not change the placement. Four months after the child tested positive for four different drugs while in the
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 14
custody of the paternal grandparents (see discussion below), beda?chelh moved, unsuccessfully, to have the child placed with a 19 year old relative of the maternal grandmother. At some point thereafter, the child was placed back with his paternal grandparents.
Both the maternal grandmother and paternal grandparents petitioned for guardianship. A Guardian ad Litem (GAL) was appointed by order of the court on September 12, 2013, and was charged with recommending which of the parties should be appointed as guardian. 2nd order dated September 12, 2013. The GAL’s eighteen page sealed report and six page public report were submitted on December 2, 2013. It was the conclusion of the GAL that the child should be placed with the maternal grandmother, and that the paternal grandparents be granted visitation one weekend per month. After a trial that began on December 18, 2013 and concluded on February 12, 2014, the court granted both petitions and divided custody between the parties.1 Findings of Fact, Conclusions of Law and Order on Guardianship (hereinafter also “FFCL”), March 10, 2014.
The maternal grandmother appeals from the court’s order.2
Standard of Review
The Tulalip Tribal Code sets forth our standard of review at TTC 2.20.090. The provisions relevant to this appeal are:
(1) A finding of fact by a Judge shall be sustained unless clearly erroneous;
* * *
(3) Any finding by the Judge, whether explicit or implicit, of witness credibility shall be reviewed as a finding of fact;
* * *
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 15
(8) A matter which is within the discretion of the Tribal Court shall be sustained if it is reflected in the record that the Tribal Court exercised its discretionary authority, applied the appropriate legal standard to the facts, and did not abuse its discretion. A matter committed to the discretion of the Tribal Court shall not be subject to the substituted judgment of the Court of Appeals.
The Best Interests of the Child
The appointment of a guardian shall be governed by the best interests of the youth who is the subject of the guardianship.3 TTC 4.05.370(1)(b)(v). This is the primary criteria to be applied when deciding who shall be appointed guardian of a child notwithstanding other factors, including those listed in TTC 4.05.370(1)(b)(i).4 While this “order of preference for appointing a guardian” subsection precedes the mandate that the appointment be governed by the best interests of the child, it does not supersede it. Therefore, reliance by the trial court upon the “order of preference” factors as decisive, including the on reservation residence of the paternal grandparents and off reservation residence of the maternal grandmother, is misplaced. The trial court stated that its decision would be based upon the best interests of the child even though implying that would not be the case if the petitioners did not both have some factors in their favor. “Although in summary fashion, it should be noted that some factors weigh in favor of each Petitioner so the deciding factor will be the best interests of the minor child.” FFCL and Order on Guardianship Petitions, p. 3. However, the trial court reached its decision contrary to the only independent evidence before it regarding the best interests of the child.
Guardian ad Litem (GAL)
The function and purpose of a Guardian ad Litem (GAL) is “ . . . to represent a child, for the protection of the best interests of the child . . .” TTC 4.05.020(24). It would usually be the function of beda?chelh to advise the trial court which placement of a child would be in the best interests of that child. TTC 4.05.370(4)(c). For whatever reason, beda?chelh refused to do that in this case, reporting only that both parties were “eligible.” We are not persuaded by beda?chelh’s argument on reconsideration that reporting that both of the competing petitioners were “eligible” constitutes a “recommendation regarding the legal guardianship” for purposes of
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 16
TTC 4.05.370(4)(c). Where there are competing petitions, “either” is not a recommendation. We conclude that in the case of competing petitions, TTC 4.05.370(4)(c) requires beda?chelh to recommend which of the competing petitions for guardianship would best serve the interests of the child and explain its reasoning, regardless of whether it is an easy choice or a close call.
The GAL was appointed in this case for the specific purpose of recommending who should be appointed as guardian because the court had to make a choice without the benefit of a recommendation from beda?chelh. Order on Hearing, September 12, 2013. The GAL report, dated December 2, 2013, is detailed and identifies all of the people contacted and interviewed, all of the factors that went into her recommendation that the maternal grandmother be made the child’s guardian, and recommendations for follow-up for the benefit of the child.
The trial court chose to disregard the GAL recommendation without any discussion or acknowledgement of the content of the GAL report, some of which has extremely serious bearing on the best interest of the child. For example, the GAL reports that the child tested positive for methamphetamine, MDMA, morphine and 6-MAM after hair follicle tests were conducted at the request of the maternal grandmother and after the child had been at the paternal grandparents’ home for five months.5 GAL p. 6.
The test results of the paternal grandparents are not known because the court did not allow discovery of those results by the maternal grandmother. Appellant’s Brief, p.6. The paternal grandparents did testify that they had their own home tested and it tested positive for methamphetamine in three rooms. Id. Based upon the positive test results of the child, the court ordered that all family members living in each of the homes where the child had lived submit hair samples for testing. Id. While all persons living in the paternal grandparents’ home (nine in total – GAL p. 4) were to be subjected to testing, none, other than the paternal grandparents, were tested because the paternal grandmother required that they leave her home before the testing could be conducted. GAL p. 7. The paternal grandparent’s son (the child’s father) and their daughter have a history of drug use (GAL p. 7) and the son continues to live at their house. GAL p. 15. None of the foregoing factors were even mentioned by the trial court in its decision. The response of the paternal grandparents to these and the several other aspects of the GAL report which reflect negatively upon them is to challenge and deny, question the competence and impartiality of the GAL, and call for her removal all without ever offering any evidence to support their claims.
The maternal grandmother has no such history beyond her daughter, mother of the child, having a history of drug abuse (GAL p.3), but not during anytime she lived with her mother. Nothing in the record suggests the child was ever exposed to illegal drugs or drug use while with the maternal grandmother.
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 17
There are several other factors that bear directly on the wellbeing of the child contained in the GAL report that were either dismissed or not considered by the trial court after it concluded that the report would not be afforded the same weight as a recommendation from beda?chelh.
Stability – the GAL report emphasizes that the structure in place at the time of her report of having the child 3 days in one place and 4 in the other makes the situation worse, that he has been displaced many times (note that beda?chelh has been responsible for or involved in at least six different changes in placement up to this point in time over the 3 ½ years the child has been alive), he lacks consistency and stability and has experienced separation anxiety many times. GAL p.16. There are references throughout the GAL report to the significant differences in each petitioner’s approach to fundamental child rearing issues such as toilet training, naps, bedtimes, television, and discipline. Yet the trial court, without any supporting evidence, concludes that the best interests of the child and his stability favors the continued shared custody of the child between both guardians. FFCL 4. The trial court noted that “normal” for this child is to reside with both grandparents regardless of which is deemed to have “residential” placement” without giving consideration to whether that “normal” is in the best interests of the child. The GAL report noted that several collateral individuals interviewed commented on the lack of stability in the child’s life. GAL p. 14. The concluding paragraphs of the GAL report emphasize the child’s need for “stability” and “to have one constant home where he can be nurtured and cared for with the least amount of disruption.” GAL p. 18.
The GAL also made several recommendations regarding follow-up care for the benefit of the child in conjunction with her placement recommendation. None of these were mentioned by the trial court and several seem critical to the wellbeing of the child including:
The child shall be placed into therapy with a qualified professional. Any and all recommendations of his therapist shall be followed.
The child should be assessed for Fetal Drug and Alcohol at the University of Washington to determine whether or not this child has ongoing issues resulting from drug and alcohol abuse.
Despite the paternal grandparents’ family having a history of drug use and abuse, the trial court made no provision in awarding them guardianship to protect the child from further exposure to illegal drugs and drug use.
Weight to be Given to GAL Report
Appellant argued before the trial court that the GAL report should be accorded the substantial legal weight accorded to beda?chelh by the TTC. The trial court disagreed, stating that “The Court disagrees with granting this substantial favor to a party NOT necessarily representing the Tribe or the Tribe’s interest.” FFCL&Order, p.3 (emphasis in original). In so
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 18
stating, the trial court disregards the facts that the base criteria for its decision is the best interest of the child, that the sole function of the GAL is to represent those interests and that the GAL was appointed because beda?chelh, the agency charged with representing the best interests of the child, abdicated its obligation under TTC 4.05.370(4)(c) to make a recommendation.6 The trial court’s reference to the GAL as a “party” is telling. The GAL is not a “party.” Pursuant to TTC 4.05.020(24), the GAL is the child’s legal representative. We need not resolve the question whether] the GAL’s recommendation should have been accorded the same weight as one from beda?chelh.7 The trial court was clearly not at liberty to disregard the facts and recommendations submitted by the child’s legal representative.
The trial court stated that the GAL report “ . . . is a substantial legal factor in favor of [the maternal grandmother], it does not give the mandatory preference accorded to the report under the statute.” The trial court’s reasoning was that:
beda?chelh has a unique status in the Code which does not apply to the guardian ad litem’s recommendations without a more specific designation from the Tribe. This Court would require that if beda?chelh intended to designate another person or agency be granted this special statutory preference that it must do so explicitly and preferably in writing. In this matter, the Court does not find that the guardian ad litem’s recommendation is entitled to the same legal weight as a beda?chelh recommendation.
In light of beda?chelh’s refusal to make a recommendation to the court in this case, its status in the Tribal Code is irrelevant here. There is nothing in the Tribal Code that authorizes beda?chelh to transfer its responsibilities and authorities to another person or agency whether explicitly or in writing or otherwise. Further, beda?chelh has a history of inconsistencies in this case as reflected by the numerous changes in the placement of the child, alleged disparate treatment of the grandparents after each facilitated an unauthorized visit between their respective child and the grandchild, and, in the course of this case, initially saying that in the matter of breaking the tie choosing between the grandparents, “ . . . that is the function that beda?chelh has deferred to the guardian ad litem.” August 6, 2014, Brief for Appellant, p. 9. beda?chelh stated at oral argument before this Court that that was not its position on the matter, but in its motion for reconsideration, counsel for beda?chelh acknowledges stating in a colloquy with the trial judge that “As to whether beda?chelh is sort of breaking the tie and calling one side over the
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 19
other or not, that is the function that beda?chelh has deferred to the guardian ad litem.” Once beda?chelh declined to make a recommendation as to which of the competing petitions for guardianship would best serve the interests of the child as required by the TTC, beda?chelh’s position upon the placement of the child and how it viewed the role of the GAL became irrelevant for purposes of this appeal.
Whether beda?chelh could or did delegate its authority and whether the GAL report is entitled to the same status as one submitted by beda?chelh are not the issues in determining the appropriate guardianship in this case. The focus on these issues ignores the best interests of the child as the determinative factor mandated by the Tribal Code. The GAL was appointed because the court had no guidance from beda?chelh regarding which of the competing petitions for guardianship would best serve the interests of the child. The primary obligation of the GAL was to represent the best interests of the child. The GAL undertook an extensive study before making her recommendation and her recommendation is the only independent evidence of the best interests of the child the trial court had before it. It was, therefore, error on the part of the trial court to disregard the GAL report and recommendation on the grounds stated in the FFCL.
Conclusion
We agree with the dissent in regards to the respective roles of the Court of Appeals and the trial court, and the deference due to the trial court’s determinations of witness credibility and findings of fact. However, just as a guardian ad litem is not a “party,” neither is a guardian ad litem a “witness.” Therefore, the command of TTC 2.20.090(3) that we defer to the trial court’s determination of witness credibility as a finding of fact is inapplicable here. Likewise, the command of TTC 2.20.090(1) that we sustain a finding of fact by the trial court unless it is clearly erroneous is not the applicable standard here because our concern is that the trial court’s failure to address the evidence and recommendations presented by the GAL overrides whatever findings the trial court did make. The applicable standard of review here is set forth at TTC 2.20.090(8), where we are instructed to sustain a matter within the discretion of the trial court only if the trial court applied the appropriate legal standard to the facts. We hold that because the trial court did not apply the appropriate legal standard to the GAL’s report and recommendations, the trial court abused its discretion.
The trial court erred by disregarding and dismissing the GAL report and recommendations on the grounds that it was not entitled to the same weight as a recommendation from beda?chelh would be given. While we do not decide whether the GAL’s recommendation is entitled to the same weight as one from beda?chelh, we do hold that the GAL’s recommendations deserved substantially more weight than they were given by the trial court. The trial court further erred by disregarding the only independent evidence of what constituted the best interests of the child. The trial court also erred by granting guardianship without making written findings as to whether there is clear and convincing evidence that the guardianship is in the best interests of the child. TTC 4.05.370(7). The decision of the trial court placing
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 20
guardianship with the paternal grandparents is reversed and this matter remanded back to the trial court for further proceedings consistent with this opinion.
Smith, Presiding Justice, dissenting:
This matter comes before this Court for review of a Trial Court decision which placed guardianship over a minor with both the maternal and paternal grandparents. Appellants allege that the Trial Court erred by: 1) not giving proper weight to the Guardian Ad Litem (GAL) report, 2) not following the preference policies of TTC 4.05.370(1)(b)(i), 3)by failing to take into account the substantial negative evidence against the paternal grandparents, 4) by failing to take into account the length of time spent in the sole care of the maternal grandmother, 5) by not allowing the petitioners full access to all information in the court record regarding the other petitioner, and 6) by granting two parties guardianship over the youth. The majority of this panel has voted to overturn the decision. I am dissenting for the following reasons.
STANDARD OF REVIEW
When we review an order from the Trial Court we have three standards for review: abuse of discretion, clear error or de novo. There is a presumption that a judge’s decision is fundamentally correct. A reviewing court should be looking at the final decision with an eye towards whether or not there was enough evidence presented to the Court to allow it to make an informed decision. If there was, then we must affirm the decision. We are not allowed to overturn a judge’s decision just because it isn’t the decision that we would have made in a similar situation with the same evidence. We must give deference to the judge’s discretion unless they have made a decision that is so far out of line that no reasonable person would be of the same opinion.
Decisions by the trial court are divided into three categories for purposes of the standard of our review: questions of law (reviewable de novo); questions of fact (reviewable for clear error); and matter of discretion (reviewable for abuse of discretion). Hoopa Valley Authority v. Doolittle, No. A-04-009 at 3 (Hoopa Valley Tribal Ct. App. 2005). Matters of discretion are those that are not controlled by statute. See, e.g., Pierce v. Underwood, 487 U.S. 552 (1988). The abuse of discretion standard is highly deferential to the lower court. See, e.g., Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000) (“Normally, the decision of a trial court is reversed under the abuse of discretion standard only when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.”).
In the Matter of E.M., 9 NICS App. 1, 6 (Hoopa Valley Tribal Ct. App. 2009) (one internal citation omitted).
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 21
Thus the Colville Tribal Court directs and the COA has held that in determining the care of minor children, such care must be in the best interest of the child and the Tribe, and must seek to give such care and guidance to preserve and strengthen family whenever possible .... The determination of the best interests of the child is a highly factual inquiry which will not be disturbed on appeal without a showing of abuse of discretion. The Court must weigh a variety of factors, including identifying the appropriate factors and weighting such factors to reach an appropriate legal conclusion.
In Re J.L.V., et al., 8 CCAR 23, 32 Ind.Lw.Rptr 6142 (2005).
A review for an abuse of discretion violation requires that the Court of Appeals must find the Trial Court’s actions were manifestly unreasonable, exercised on untenable grounds, or for untenable reasons.
Marchand v. CCT, 8 CCAR 18, 32 ILR 6102 (2005).
I would state that we should be reviewing this case on the abuse of discretion standard.
DISCUSSION
GAL Report/Joint Guardianship
Appellant alleges that the Trial Court should have relied more on the recommendations of the GAL report in making its final decision and that there should not have been a joint guardianship granted. The judge determined that the evidence supported granting guardianship to both maternal and paternal grandparents, being in the best interests of the minor.
TTC 4.05.370(4) states:
Beda?chelh Guardianship Report. Upon receipt of a petition for legal guardianship, beda?chelh shall investigate any party to be appointed as a legal guardian, conduct a complete home study, and shall prepare and submit a written report to the Court no later than 20 calendar days before the guardianship hearing. (Emphasis added.)
TTC 4.05.370(4)(c) states:
The report shall contain beda?chelh’s recommendation regarding the legal guardianship, and whether beda?chelh believes that such legal guardianship will be in the best interests of the child. (Emphasis added.)
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 22
The Trial Court stated in its final order that beda?chehl completed the required home studies on each proposed guardian but did not recommend which guardian the court should choose. Instead the reports stated that each guardian was “eligible” for guardianship. Beda?chehl supported the court’s appointment of a GAL, however beda?chehl stated on the record that it did not intend the recommendation to be “heavily favored as a beda?chehl recommendation would be under the Code.” TTC 4.05.370(1)(b)(vii). Order at 1.7. While the judge agreed that the GAL report was a substantial legal factor, she disagreed with the mandatory preference because the Court appointed the GAL to assist in the matter since beda?chehl would not give a recommendation giving preference of one guardian over the other. There is nothing in the record which shows that beda?chehl delegated its responsibility to make a recommendation. It made the recommendation that both petitioners were eligible for consideration.
The court simply used another tool (the GAL report) to help it decide if either or both potential guardians should be appointed. It had beda?chehl’s recommendation (either party was suitable) and also the GAL recommendation (maternal grandparent should be appointed). Ultimately, the decision was up to the court to decide the best interests of the minor. Reports and recommendations are just that. They report facts obtained by investigation and make recommendations based on those facts. The Court must base its decision on those recommendations, on other evidence in the record, and also on the law and its own interpretation of what evidence is to be given what weight. It is easy for us to sit back and make a decision based on what we would have done in that situation or what the judge should have done. However, that is not what we are tasked to do. We must look at the record, decide if there was sufficient evidence to support the court’s decision, and make our determination based on that.
In this instance the Court decided that it was in the minor’s best interest that guardianship be given to both petitioners, not unlike joint custody in a custody dispute. There is nothing in the law which precludes this decision and based on the evidence in the record, as the judge concluded, actually supports such a ruling. The minor does better when allowed contact with both sets of grandparents.
We go back to beda?chehl’s initial reports which indicated that home studies were conducted on both petitioners and it found that both were “eligible” to obtain guardianship. Under TTC 4.05.370(4) it states:
(a) The report shall address the suitability and character of the legal guardian, including, but not limited to, the financial, physical, and general background of the legal guardian and his/her home.
(b) The report shall reflect contact with all appropriate agencies and individuals who have relevant knowledge and information.
13 NICS App. 12, IN RE THE GUARDIANSHIP OF A TULALIP MINOR (March 2015) p. 23
The Court reviewed the reports and determined that the pros of having the paternal grandparents as guardians over the minor outweighed the cons of the negative evidence presented. She also determined that while the minor had spent considerable time with its maternal grandmother, the minor exhibited behavioral problems when separated from either grandparent for any length of time. Each grandparent had previously advocated for visitation with the other grandparent to provide for stability for the minor. It appeared to the judge that the “normal” for this minor was to have contact with both grandparents in a joint guardianship. Again, not unlike a joint custody in a custody case. The trial court judge is in a much better position to determine the suitability of a petitioner for guardianship than we are due to the fact that they get to see the interaction of the person in court and when put under the judicial microscope. This goes to other witnesses, such as a GAL. Bottom line, it is the judge who must absorb all the information, determine the best interests of a child, and then issue a final decision based on facts and the law. I found sufficient evidence to support the court’s decision.
Limited Access to Court Record
The majority did not mention Appellant’s request for review of her lack of access to information contained in the Court’s file. Courts are information gatherers. They must obtain a vast amount of information, depending on the issues before them, before they can make informed decisions. The more information, the more varied the information, the better decision that can be made. Most of the information gathered by the courts is of a nature that anyone who has a desire may look at it. However, there is also the other type of information that is gathered by the court. It is of a nature that only the court, and a sometimes a select few, should have access to it. In a criminal case, there are reports (NCIC) that are about the defendants’ criminal histories that are kept confidential from the defendants themselves, even though it is about them. Their attorney may have limited access to the report, but cannot show it to the defendant. In minor-in-need-of-care cases, there are many reports filed that are confidential to some of the parties in the case. The court may allow limited access to certain people, but many times those reports are only seen by the court itself. The reasons for these limitations are many, but usually it is due the nature of the report, how it is obtained, what information it contains, and how that information might be negatively used if it falls into the wrong hands. In family matters, if some information is allowed general circulation, the people may not be as forthcoming in the future about disclosing stuff because they might be afraid of retaliation or ridicule. Reports that focus on mental health status or recommendations may cause substantial hardship to individuals if the contents were disclosed to persons outside the system (employers, potential loan lenders among others). Even an address of a party could potentially have dire consequences if inadvertently disclosed to an abusive perpetrator.
Records in family matters are generally more closed than other types of cases. Especially about other parties in a case and their personal backgrounds. The judge has an obligation to disclose information that he uses to make a decision, but that does not necessarily give rise to allowing the other parties to be able to review the entire file themselves. In this case, the appellant has failed to show how the non-disclosure of evidence against the other petitioner
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substantially prejudiced her rights. I would affirm the court’s decision to limit the access to the file.
CONCLUSION
Based on the above, I would find that the appellant failed to meet her burden of showing how the trial court erred and the decision should be overturned. There is a presumption that the Court’s decision is the correct one unless it can be shown that it abused its discretion or made clear error. Just because other minds might not find the same decision does not make the decision wrong. I did not find that the judge’s decision was based on untenable grounds, done for untenable reasons or was manifestly unjust. The trial court had sufficient facts before it to support the decision that it made and I would affirm that decision.
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.
The governing section of the Tulalip Youth Code, TTC 4.05.370, refers almost exclusively to “a guardian” or “the guardian” in the singular, suggesting that the code generally anticipates that a single individual will be appointed guardian. The primary exception is that the Code recognizes that multiple “petitioner(s)” may join in a single petition for guardianship. TTC 4.05.370(2)(a)(i)(B). We find nothing in the Code that authorizes the trial court to create a dual or shared guardianship between competing and potentially adverse petitioners. Because this issue was not raised or briefed by the parties, we note it for consideration by the trial court on remand, but do not decide it here. Nothing in this Opinion should be construed as restricting the trial court’s authority to grant a single petition for guardianship while also awarding visitation to another petitioner if such visitation is found to be in the best interests of the child pursuant to TTC 4.20.460.
On April 2, 2014, the paternal grandmother filed a “Response to Guardianship Order” that addresses certain matters the trial court had set for a subsequent hearing in its March 10 Order. This “Response” does not purport to be a notice of appeal, and even if it did, it would not have been timely filed.
In furtherance of this mandate, the recommendations of beda?chelh, the Tribes’ presumptively independent and neutral child welfare agency, “shall be heavily favored as in the best interest of the child.” TTC 4.05.370(1)(b)(vii).
TTC 4.05.370(1)(b)(i): The order of preference for appointing a guardian, in the absence of good cause to the contrary, shall be:
(A) A person who was indicated by the wishes of a deceased parent as indicated in a will or similar instrument;
(B) Family members;
(C) Extended family members;
(D) A member of the Tulalip Tribes living on or near the Tulalip Reservation;
(E) A member of another Indian tribe residing on or near the Tulalip Reservation;
(F) A member of the Tulalip Tribes residing off the Tulalip Reservation; or
(G) A member of another Indian tribe residing off the Tulalip Reservation.
MDMA is commonly known as ecstasy. www.drugabuse.gov. 6-MAM is created from heroin in the body and is a definitive indication of heroin use. www.mayomedicallaboratories.com.
TTC 4.05.370(4)(c) states that: (4) Upon receipt of a petition for legal guardianship, beda?chelh shall investigate any party to be appointed as legal guardian, conduct a complete home study, and shall prepare and submit a written report to the court. . . (c) The report shall contain beda?chelh’s recommendation regarding the legal guardianship, and whether beda?chelh believes that the legal guardianship will be in the best interests of the child. (Emphasis supplied.)
Indeed, an argument could be made that as the child’s legal representative, a GAL’s recommendations deserve more weight than recommendations from beda?chelh. It is unfortunate that Appellant and the trial court focused so heavily on the relationship between the GAL and beda?chelh instead of focusing on the role of the GAL as defined by the Youth Code.