13 NICS App. 53, IN RE THE PARENTAL RIGHTS OF V.W. (August 2015)

IN THE PUYALLUP TRIBAL COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

In re the Parental Rights of V.W.

V.W., Petitioner (Respondent below),

and

S.N.J. and K.J., Respondents (Petitioners below).

NO. PUY-CW-TPR-2013-0029 (August 24, 2015)

SYLLABUS^*

Petition for writ of mandate challenging the lower court’s order terminating parental rights. Court of Appeals ruled the lower Court failed to secure personal jurisdiction over Petitioner when it failed to properly serve petition and summons and ordered all orders issued by the lower Court in this proceeding be vacated, including the order terminating parental rights.

Before:	Douglas Nash, Chief Judge; Michelle Demmert, Judge; Suzanne Ojibway-Townsend, Judge.
Appearances:	V.W., Petitioner, pro se; Charles R. Hostnik, Anderson Hostnik PLLC, for Respondents.

OPINION

Nash, J.:

Procedural History and Jurisdiction

This case involves a challenge to an order terminating parental rights issued by the Puyallup Tribal Court on May 27, 2014.¹ The challenge is brought by V.W.², the mother of the

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child affected by the termination order. V.W., the Petitioner for the writ at issue here, is an enrolled member of the Puyallup Tribe of Indians who has been incarcerated throughout these proceedings. Respondents are the adoptive parents who petitioned to initiate the termination proceeding and who were issued a decree of adoption as a result.

This matter came before the Court of Appeals pursuant to a referral from the Honorable Anthony Little, the Judge who presided over the termination of parental rights (hereinafter also “TPR”) proceedings. See Order Denying Reconsideration, No. PUY-CW-TPR-2013-0029, August 18, 2014, p. 4. For the reasons set forth in this Court’s Order Accepting Petition for Writ of Mandamus issued on March 11, 2015, this Court concluded that a pair of letters submitted by V.W. dated June 1, 2014 and September 13, 2014 constituted a Petition for a Writ of Mandamus asking this Court to vacate the TPR order and restore her rights to participate in any future termination proceeding. This Court concluded that Puyallup Tribal Code (PTC) Chapter 4.16, the Judicial Code, grants this Court authority to issue a writ of mandamus, and we therefore accepted review and set the matter for briefing. We here reiterate that holding that the Puyallup Tribal Court of Appeals has jurisdiction to hear a petition for writ of mandamus under PTC 4.16.290(c), and that we have jurisdiction in this case under PTC 4.16.290(c).³

Preliminary Rulings

Instead of filing a brief, on April 15, 2015, Petitioner filed an affidavit accompanied by several attachments. Because Petitioner’s affidavit and attachments for the most part seek to introduce evidence not in the trial court record, this Court will not consider them.

On April 30, 2015, Respondents filed a response to the affidavit filed by Petitioner on April 15, 2015. The response asks this Court to strike the affidavit filed by Petitioner on April 15. Respondents argue that if this Court does not strike Petitioner’s April 15 affidavit, we should construe an email log attached to the affidavit as evidence that Petitioner sat on her rights and thereby waived her right to participate in the TPR proceeding. The response then presents five additional pages of legal briefing and argument.

This Court’s March 11, 2015 Order Accepting Petition for Writ of Mandamus and Setting Briefing Schedule provided that Respondents could file a brief by April 10 and that Petitioner could file a reply brief by May 1, and then explicitly stated “No further briefing will be allowed.” To the extent that the April 30 response of Respondents includes briefing and argument, it is in

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direct contravention of our March 11 Order. Respondents’ contention that the email log Petitioner attached to her April 15 affidavit constitutes evidence that Petitioner “clearly waived her opportunity to appear” in the TPR proceeding is not well taken. Nothing in Petitioner’s affidavit or the email log itself suggests the email log includes every email Petitioner sent during the relevant times, and regardless, Petitioner’s filings in the trial court suggest that (1) Petitioner may have submitted one or more requests to appear telephonically by regular mail that may have been lost or misfiled by the clerk’s office⁴, and (2) Petitioner was informed in a telephone conversation with one of the clerks that Petitioner would indeed be called at her prison counsellor’s office at the commencement of her hearings. There is no basis whatsoever for this Court to make the evidentiary findings encouraged by Respondents.⁵

Because this Court had already decided that it would not consider Petitioner’s April 15 affidavit, and because the remainder of Respondents’ April 30 response is comprised of improper factual assertions and briefing expressly disallowed by this Court’s March 11 Scheduling Order, Respondents’ April 30 response is struck in its entirety.

On May 18, 2015, Petitioner filed yet another affidavit. As the content of that affidavit has no bearing on the legal issue of whether the writ she has requested should issue, Petitioner’s May 18 affidavit is struck in its entirety.

On May 21, 2015, Respondents filed a “Supplemental Response” identifying additional legal authority potentially relevant to this case and presenting additional briefing. This Court takes notice of the additional authority, but otherwise strikes Respondents’ “Supplemental Response” in its entirety based on the express provision of our March 11 Order that no additional briefing would be allowed.

Discussion

Section 7.04.930 of the Child and Family Protection Code provides that

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having legal custody of the child, and the child’s extended family as determined by the Court.

* * *

(c)    Notice shall be given by personal service. If service cannot be made personally, the Court may authorize service by registered mail, return receipt requested, at the last known address of the person to be served. If notice cannot be served by registered mail, the Court may authorize service by publication in either the Tribal Newspaper of the Reservation, or a newspaper of general circulation in the county where the Court is located, once a week for three consecutive weeks. * * *

“All parties shall be entitled to advance copies of Court documents, including petitions and reports, unless deemed inappropriate by the Court.” PTC 7.04.500.⁶ “No parental rights may be terminated unless a petition has first been filed, notice has been given, and a hearing held in accordance with the provisions of this chapter.” PTC 7.04.910(c).

The above-cited sections of the Child and Family Protection Code make it clear that a parent subject to a TPR proceeding must at a minimum be personally served, if possible, notice of the time and place of any hearings, and must receive notice and a copy of the petition to terminate parental rights. However, these sections do not directly address the requirements for service of the petition itself. While common sense suggests that service of a hearing notice would be meaningless without contemporaneous service of the petition,⁷ to determine the statutory service requirements regarding the petition, we must look to PTC 7.04.130 and the Puyallup Civil Procedures Code.

Jurisdiction over a TPR petition resides with the Puyallup Children’s Court. PTC 7.04.050. The Child and Family Protection Code provides that “[t]he procedures in the Children’s Court shall be governed by the rules of procedure for the Tribal Court which are not in conflict with this Code.” PTC 7.04.130. The Puyallup Civil Procedures Code requires that

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“[t]he summons, together with a copy of the complaint or petition, shall be served upon the defendant or respondent by a Tribal Law Enforcement Officer or by any person over the age of 18 who is not a party to the action.” PTC 4.08.100(a) (emphasis added; details regarding method of service deleted because they are superseded by PTC 7.04.930(c)).

The combined operation of PTC 7.04.930, PTC 7.04.500, PTC 7.04.910(c), and PTC 4.08.100(a) firmly establish that both the notice of hearing and the petition must be personally served on the parties to a TPR proceeding if possible.

Neither the Child and Family Protection Code or the Civil Procedures Code specify whether the petitioner or the Court is responsible for service of the petition and summons. PTC 7.04.930(a) requires that notice “shall be given to the petitioner,” suggesting that it is the responsibility of the Children’s Court to serve the notice of hearing and petition because it would make no sense for the petitioner to provide notice to him or herself. More significantly, the Civil Procedures Code specifies that personal service of a summons and petition shall be made by a Tribal Law Enforcement Officer, among other potential persons. We are not aware of any authority by which a citizen can command action by a Puyallup Tribal Law Enforcement Officer. It seems to us that only the Tribal Court, and not a Tribal citizen, can command Tribal Law Enforcement to perform service. We therefore conclude, and now hold, that it is the Tribal Court, rather than a petitioner, that has the duty to serve the summons/notice of hearing and petition in a TPR proceeding.

The petition to terminate V.W.’s parental rights was filed on July 3, 2013. The record establishes that Respondents and the trial court were aware from the outset that V.W. was incarcerated at the Washington Corrections Center for Women (WCCW) in Gig Harbor, Washington. Barely a month after the petition to terminate V.W.’s parental rights was filed, the mailing address and the phone number for the WCCW were made part of the trial court record. The Children’s Court does not appear to have made any inquiry or issued any finding that personal service on V.W. would not be possible.  On August 6, 2013, the Children’s Court issued a summons to appear at a termination hearing set for January 30, 2014. On August 6, 2013, the Children’s Court also issued a Request for a Pre-Termination Report to the Puyallup Children’s Services. On August 6, 2016, the court clerk served these three documents on V.W. by regular and certified mail.⁸ There is nothing in the record indicating that any of these documents were

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ever personally served on V.W. The Children’s Court’s failure to ensure that the petition and the August 6 summons were personally served on V.W. violated PTC 7.04.930(c) and PTC 4.08.100(a).

The finding in the Children’s Court’s May 27, 2014 Order Terminating Parental Rights that V.W. received “proper notice” is clearly erroneous. A failure to ensure proper service of a petition and summons constitute error as to the application of the law, and is therefore reversible error under PTC 4.16.400. Because the petition and summons were not served on V.W. as required by the code, the Court failed to secure personal jurisdiction over her. Because the Court failed to secure personal jurisdiction over V.W., every action taken by the Children’s Court in this proceeding is void and must be vacated.⁹

The Father’s Parental Rights

Although this action was brought exclusively by the mother, and she does not claim to represent the interests of the father, the record establishes that service on the father was also inadequately documented and defective. Nothing in the record indicates that the trial court made any attempt to locate the father prior to authorizing service by publication. Instead, the court granted the motion for service by publication based only on (1) information in the petition, unsupported by affidavit, that “the father’s address is unknown” and listing the last known address of the father, and (2) a certificate of service by the court bailiff that the father no longer resided at the address provided by Petitioners. Service by mail, which might have produced information concerning the father’s new address, does not appear to have been attempted, even though service by registered mail is the first alternative form of service required by PTC 7.04.930(c).

Even if the court had properly authorized service by publication, the proposed form of notice to be published, and the notice ultimately published, both appear to have been defective.¹⁰ Petitioners’ proposed form of notice failed to give any indication of the nature of the hearing or the rights subject to default for a failure to appear. The notice the court provided to the court’s

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newspaper of choice and actually published misidentifies the nature of the hearing as a “guardianship” hearing, and incorrectly informs the father that a default for failure to appear will merely result in his child “being placed in another home and the parent ordered to correct certain problems.”¹¹ Nothing in the published notice informs the father of the true nature of the proceedings or the substantial and irreversible consequences of a failure to appear.¹² Thus, as with the mother, the finding in the trial court’s order terminating parental rights that the father failed to participate in the proceedings “after proper notice” appears to be erroneous.

Every court has an independent obligation to confirm its own jurisdiction, even when the issue of jurisdiction is not raised by the parties. The law is well settled that where constitutional or statutory provisions limit the jurisdiction of a court, objections to jurisdiction cannot be waived. Indeed, the rule is inflexible and without exception and requires the Court to deny its own jurisdiction even when not asked to do so by the parties and even when doing so will result in hardship to a party as a result of the opposing party’s failure to raise the objection.

In the Marriage of McLeod and Sullivan, 10 NICS App. 44, 49-50 (Port Gamble S’Klallam Tribal Ct. App. 2011) (internal quotation marks, ellipsis, and citations omitted). Although this rule is generally applicable to subject matter jurisdiction rather than personal jurisdiction, it is relevant here.

Here, the failure to provide proper notice to the father deprived the Children’s Court of jurisdiction over the father.

Conclusion

The Children’s Court failed to obtain personal jurisdiction over either parent. It is therefore appropriate that all Orders, including the Order Terminating Parental Rights and the subsequent Adoption Order, be vacated.

Writ

All orders issued by the Children’s Court in this proceeding, including and particularly the Findings of Fact, Conclusions of Law, and Order Terminating Parental Rights issued by the Children’s Court on May 27, 2014 are hereby vacated for lack of personal jurisdiction over either of the biological parents. The Decree of Adoption issued by the Children’s Court is vacated.

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This Writ shall have no effect on the physical or legal custody of the child.

The Court clerk shall serve this Writ on Respondents through their counsel by certified mail.

The Court clerk shall cause this Writ to be personally served on Petitioner V.W.

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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.

The Tribal Court issued an Order Denying Reconsideration on August 18, 2014.

It is not necessary to identify the parties by name. This Court chooses not to name the parties in order to protect Petitioner’s children from embarrassment and stigma, given that this Writ will be published to serve as precedent to guide future termination proceedings.

Our March 11 Order Accepting Petition noted that it is the interplay of PTC 4.16.290(b) and PTC 4.16.290(c) that confers the authority and a duty upon this Court to hear certain matters in addition to appeals that may be timely filed under PTC 4.16.290(a). It is PTC 4.16.290(c) that expressly confers upon this Court the authority and duty to “[i]ssue any order or writ necessary and proper to the complete exercise of [the Court’s] powers and the general authority of the Court.”

This Court is perplexed by Respondent’s repeated insistence that Petitioner’s written requests to appear telephonically apply exclusively to proceedings involving two of her other children. See, e.g., April 6 Brief of Respondent’s at p. 6. The trial court record includes a letter dated June 1, 2014 (though not filed until July 28, 2014) that is accompanied by a Motion, Declaration and [proposed] Order for Telephonic Hearing signed by Petitioner on April 19, 2014 under a caption bearing this case number and naming the child that is the subject of this TPR proceeding.

Given this Court’s holding regarding service, infra, there is no basis for this Court to engage in the fact-finding exercise that would otherwise be necessary to determine whether Petitioner sat on her rights, as alleged by Respondents, or if as alleged by Petitioner, she was denied the opportunity to appear due to clerical errors, misinformation, and/or a failure to make a promised phone call by the trial court staff.

Although Subchapter 14 is placed amidst other sections of the Code dealing with the reporting and adjudication of allegations that a youth has been subjected to abuse and neglect, by its own terms Subchapter 14 applies to “all proceedings” under the Child and Family Protection Code. In a previous case in which this Court was called upon to interpret provisions of the Child and Family Protection Code, we observed that “[t]he location of language within an ordinance does not negate the plain meaning of that language.” In re the Parental Rights of S.D., 10 NICS App. 81, 84 (Puyallup Tribal Ct. App. 2012). Thus, all parties to a termination of parental rights proceeding are entitled to advance copies of all Court documents, including petitions and reports, not just notice of the time and place of hearings.

Although not necessary for purposes of our analysis here, a failure to serve the petition with the summons would almost certainly deprive the respondent of his or her due process right guaranteed by the Indian Civil Rights Act (ICRA) to be notified of the purpose of the hearing. ICRA is expressly applied to TPR proceedings by PTC 7.04.880 (“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 . . . .”).

To the extent that the Children’s Court attempted to document service of these and various other documents, the Children’s Court indicated that documents were served by “certified” mail. However, PTC 7.04.930(c) requires that if the court determines that service cannot be made personally, the court may authorize service by “registered mail, return receipt requested” (emphasis added). In their April 6 brief, Respondents state they are “perplexed concerning [this] Court’s distinction between certified mail and registered mail” and request guidance from this Court as to whether “certified” mail may be substituted for “registered” mail. As Respondents acknowledge, the Code requires registered mail, and as their own submission indicates, “registered” mail “provides maximum security,” whereas “certified” mail provides only “proof of mailing and the date and time of delivery or attempted delivery.” While the actual difference between certified mail and registered mail may be minor, and while constructive notice may be accepted in lieu of strict compliance in other settings, the relationship between a parent and a child is of such significance and the termination of parental rights such a drastic measure as acknowledged in the Puyallup Code that this Court will not second guess the Tribal Council’s decision to require “registered” mail.

Respondents argue that the defects in service of the summons and petition were cured by subsequent actions, including personal service of the summons for the May 27 hearing on the merits on V.W. by themselves on May 5, 2014, and the granting of a hearing by the Children’s Court to reconsider its May 27 Order Terminating Parental Rights. Because the Court had failed to secure personal jurisdiction over V.W., these subsequent actions were of no effect. Even so, we note that the petition was never personally served on V.W.; by the time the summons was personally served on V.W., her rights to participate in and defend against discovery and various motions that had been filed and heard had been violated in a number of respects; and the burdens of proof and persuasion at a hearing on reconsideration shift from the person(s) seeking termination to the person who’s rights have been terminated. Thus, even if the Children’s Court has secured personal jurisdiction over V.W., none of these subsequent actions were sufficient to restore her rights to fully participate in the proceedings.

Because of the two continuances that were granted, Petitioners filed three separate motions for service by publication. Because the motions and proposed form of notice were virtually identical, we treat them as one.

The published notice also incorrectly refers to the hearing as an “initial” hearing. As noted above, under Subchapter 13 of the Child and Family Protection Code, an “initial” hearing concerns the removal of a child from a home upon the filing of a child protection petition. There is no provision for an “initial” hearing in a TPR proceeding.

While the record includes documentation that the court requested that the notice be published for three consecutive weeks as specified in PTC 7.04.930(c), the record does not include documentation that the notice was in fact published for three consecutive weeks.