14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016)
IN THE PUYALLUP TRIBAL COURT OF APPEALS
PUYALLUP INDIAN RESERVATION
TACOMA, WASHINGTON
In Re The Adoptions Of:
D.A.S, JR., and T.E.J.B.S.
T.D.F., Petitioner/Appellee.
NO. PUY-CW-AD-2015-0025, and PUY-CW-AD-2015-0026 (July 20, 2016)
SYLLABUS*
The appellant challenged the termination of her parental rights and the subsequent adoption of her two children by the children’s paternal grandmother, because of procedural errors in both proceedings. Court of Appeals concluded that the Children’s Court did not follow all required statutory requirements in terminating the mother’s parental rights, nor all of the statutory requirements to perfect the adoption of the children. Court of Appeals vacated the orders terminating parental rights and the adoption decrees. Court of Appeals also remanded the cases to the Children’s Court.
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Before: |
Randy A. Doucet, Chief Judge; Jerry R. Ford, Judge; Gregory M. Silverman, Judge. |
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Appearances: |
Gina M. Duncan, Attorney for Appellant, T.L.B.-S.; Howard Comfort III, Attorney for Appellee, T.D.F. |
OPINION
Doucet, C.J.:
BACKGROUND
The Puyallup Tribal Children’s Court appointed T.D.F., paternal grandmother and appellee/petitioner, as the guardian of the children on February 24, 2014. On February 11, 2015, the appellee filed petitions for termination of parental rights, one for each child. On February 26, 2015, the appellee filed petitions for adoption and a request for a pre-termination report for both children.
14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016) p. 41
On April 10, 2015, the Children’s Court issued an order for the involuntary termination of parental rights as to mother and father, one order for each child. The order terminated the parental rights of the mother/ appellant. On April 13, 2015, the Children’s Court issued two decrees of adoption, one for each child. The adoptive parent in both decrees was T.D.F., the paternal grandmother/ appellee. Appellant filed a notice of appeal on October 28, 2015.1 The appellant challenges both the entry of the order for involuntary termination of her parental rights and entry of the adoption decrees on the basis that the proper statutory procedures were not followed in either of the proceedings.
SCOPE OF APPELLATE REVIEW
The scope of appellate review of a Children’s Court decision by the Court of Appeals is set forth in Puyallup Tribal Code 4.16.400:
4.16.400 Considerations governing reversal, modification, or remand of trial court decision.
Except as provided, the decision of the trial court will be reversed, modified or remanded only:
a) Where there has been an abuse of discretion that prevented a party from receiving a fair trial;
b) Where there has been misconduct by the prosecution, Judge or jury;
c) Where there has been error as to interpretation and/or application of the law by the Judge;
d) Where the verdict or decision is contrary to the law and the evidence;
e) Where there has been newly discovered evidence that was not available at the time of the trial.
Here, the issues raised by the appellant concern whether there were errors as to the interpretation and/or application of the law by the Children’s Court. The appellant argues procedural errors occurred during the proceedings for involuntary termination of the appellant’s parental rights, and during the subsequent adoption proceedings.
DISCUSSION
The appellant raised four procedural challenges to the termination of her parental rights and the subsequent adoption proceedings. We consider whether the Children’s Court’s findings were supported by substantial evidence.2
14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016) p. 42
Issue 1. Whether the petition to terminate parental rights was filed in accordance with Puyallup Tribal Codes 7.04.900 and 7.04.920.
The first issue concerns whether the petitions to terminate parental rights complied with Puyallup Tribal Codes §7.04.900 and §7.04.920. The appellee/petitioner filed a separate petition for each child. The termination of parental rights petitions were preprinted forms that allowed the petitioner to fill in the appropriate blanks. The problem occurred in the sections for pre-filing requirements.3 There is a check box on the form that states, “In accordance with §7.04.870(i), the pre-filing requirements set forth in § 7.04.850 [ ] have been met [ ] have not been met.”4 On both petitions the boxes were not checked. The spaces for additional information were left blank on both petitions.
The pre-filing requirements are mandated by PTC §7.04.900. The petitioner “must establish …[t]he child has been found to be an abandoned or neglected child under the Code for at least a one-year period of time, and has been removed from their parent at the time of this termination hearing for a period of one year or more.”5 Although, in another section of the petition the petitioner did check boxes that the parents have abandoned the child(ren), that alone does not meet the requirements of §7.04.900. The petitioner is required to “establish”, as opposed to allege, the child has been found to be abandoned or neglected. The code language that the petitioner “must establish…[t]he child has been found to be an abandoned or neglected child…” requires the petitioner cite the previous findings by the Children’s Court. (Emphasis added.) The pre-filing requirements also require the petitioner “establish” other prerequisites to filing the termination of parental rights have been met. The statutory pre-filing requirements address procedural history and court decisions that occurred prior to filing the petition for termination of parental rights.6
In response, appellee argues that a search of the case record will provide sufficient information to fulfill the requirements set forth in PTC §7.04.900. That may be so. However, the
14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016) p. 43
statute places the burden on the petitioner to gather the required information from the record and incorporate that information into the termination of parental rights petitions. That was not done, and therefore the petition does not comply with PTC §7.04.900.
The Children’s Court erred in its application of the law by proceeding with the termination of parental rights actions when the petitions to terminate parental rights did not comply with the pre-filing requirements mandated by the Puyallup Tribal Code. The pre-filing requirements are intended to give notice to the parents, and the court, of the efforts made to avoid termination of parental rights. By reading through the pre-filing requirements in PTC §7.04.900, it is clear that the statute intended termination of parental rights to be the last resort, when the opportunity to obtain a permanent placement for the child is diminished unless parental rights are terminated. Here, the children were in a guardianship with their paternal grandmother. Although, this error by itself is sufficient to vacate the termination of parental rights decrees, we will review the additional errors claimed by the appellant.
Issue 2. Whether adequate notice was given to necessary parties to the hearing to terminate parental rights in accordance with Puyallup Tribal Codes 7.04.930(a) and (c).
The mother asserts that service of the petition for involuntary termination of parental rights did not comply with the requirements of Puyallup Tribal Codes, §7.04.930 (a) and (c). Title 7 provides for procedures for service. Although Title 7 authorizes service by publication, it does so only after attempts at personal service and service by certified mail have been unsuccessful. Prior to authorizing service by publication, the Children’s Court should have determined whether reasonable diligence and good faith efforts were made to accomplish personal service and service by certified mail.
PTC §7.04.930 (c) requires that if personal service cannot be made and 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. PTC §4.08.100(c) provides that:
When the defendant or respondent cannot be found within the Reservation or within the state of Washington and upon the filing of an affidavit of the plaintiff stating that the defendant is not a resident of the Reservation or the state of Washington or cannot be found therein and that attempts at personal service or service by certified mail have failed, service may be made by publication of notice of the lawsuit once a week for three weeks in a newspaper of general circulation.
Title §4.08.100 and Title §7.04.930(c) are consistent regarding the requirements for service by publication. The record provided on appeal does not include an affidavit setting forth the efforts made to accomplish personal service, or the efforts to accomplish service by certified mail. Service by publication is not a choice to be made between three equal alternatives. The court should only authorize publication after service by personal service and by certified mail is shown to have been unsuccessful after reasonable diligence and good faith efforts.
Here, the petitioner filed two forms titled “Motion, Affidavit and Order to Proceed with Publication” on February 17, 2015.7 The pre-printed form motion and order provided check boxes indicating that personal service and service by certified mail return receipt requested had
14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016) p. 44
both failed. Both boxes were checked. The form next had a check box for “respondent cannot be found within the Puyallup Indian Reservation or within the State of Washington.” That box was checked. The next line on the form states, “The Respondent is not a resident of the Puyallup Indian Reservation or the State of Washington.” That box was checked.
Although the one-page form has “affidavit” in the title, it does not meet the formalities of a notarized affidavit, nor is it signed under penalty of perjury. Most concerning is that there are no judicial findings regarding whether reasonable diligence and good faith efforts were made to accomplish personal service, or service by certified mail. The “order” portion of the motion consists simply of a short statement either granting or denying the request for service by publication.
The court may authorize service by publication, but only after considering the reasonable diligence and good faith efforts by the petitioner to accomplish personal service and service by certified mail. Here, the record contains a standard form motion and order to proceed with publication. The motion does not provide specific facts or an affidavit showing the efforts made. Authorizing publication without a supporting affidavit and not making findings regarding whether reasonable diligence and good faith efforts were made for personal service and service by certified mail was an error in the application of law by the Children’s Court. “A failure to ensure proper service of a petition and summons constitutes error as to the application of the law, and is therefore reversible error under PTC 4.16.400.”8 When the petition and summons are not served on the parents as required by the code, the court has failed to “secure personal jurisdiction” over them.9 By failing to secure personal jurisdiction over the parents, every action taken by the Children’s Court in this proceeding is void and must be vacated.10
Appellant also raised the issue that the mother’s extended family was not served. After a petition for the involuntary termination of parental rights has been filed, the court shall give notice to the petitioner, the parents of the child, the guardian ad litem, the person having legal custody of the child, and the child’s extended family as determined by the Court. (Emphasis added.)11 It is the burden of the appellant to show in the record that the appellant requested the court make a determination of extended family, or that such a request was made and the court erred in denying the request or failed to act on the request. There is nothing in the record showing the appellant in any prior proceedings, including the guardianship proceedings, raised this issue in the Children’s Court. Therefore, this issue is not appropriate for consideration in this appeal, as there is no record showing that the Children’s Court committed an error.
Issue 3. Whether a pre-termination report was prepared and submitted to the court pursuant to Puyallup Tribal Code 7.04.940 with recommendations as to the best interest of the child no later than 10 days before the hearing to terminate parental rights.
The next issues concern whether the per-termination report was timely filed, and also a challenge as to the sufficiency of the report. The Children’s Court issued the “Involuntary Termination of Parental Rights as to Mother and Father” on April 10, 2015. Within the order, the Children’s Court found that “[a] Pre-Termination Report was prepared and submitted to this court as ordered in the Order Appointing the GAL for a Sealed Confidential Report to the court with recommendations as to the best interest of the child no later than ten (10) days before this
14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016) p. 45
hearing. § 7.04.940.” Pre-termination reports “shall be submitted to the Court no later than 10 days before the hearing with copies given to the parents.”12 The document titled “Sealed Confidential Report” submitted for the purposes of a pre-termination report for both children was filed on April 9, 2015.13 One day before the termination of parental rights hearing. There is a discrepancy between the Children’s Court’s finding and the documentary record as to when the per-termination report was filed. Here, the conflict between the findings of the Children’s Court are contrary to the evidence of the file stamped records showing the pre-termination report was only filed one day prior to the hearing. The issue raises a question of fact requiring additional findings. The appropriate course of action would be to remand the case to resolve the factual discrepancy. However, remand does not apply, because the trial court orders are being vacated.
Appellant argues that the pre-termination report did not comply with the Revised Code of Washington. The Puyallup Tribe has code provisions regarding pre-termination requirements, and this Court will not substitute the state requirements for those of the Puyallup Tribe.
Appellant challenges the sufficiency of the pre-termination report. “The purpose of the report is to aid the Court in making a determination on the petition and shall be considered by the Court prior thereto. The Court may request additional reports where it deems necessary.”14 The report is not the final authority for whether parental rights should be terminated. It is only an aid to the Children’s Court. However, due to the issues raised by the appellant regarding proper service of process and the issue of timeliness of the filing of the report, the appellant did not have the opportunity to raise issues with the report with the Children’s Court, which is the appropriate forum for the relief requested. Therefore, remand would be appropriate to resolve this issue. However, the issue is rendered moot by the termination of parental rights orders being vacated.
Issue 4. Whether the procedures for the adoption of the children were followed.
The appellant raises multiple procedural issues challenging the adoption proceedings. First, appellant raises issues regarding the sufficiency of the adoption petitions. PTC § 7.04.1070(a)(4) requires that the petition for adoption include to the best information and belief of the petitioner the basis for the Children’s Court’s jurisdiction. Also, the petition must, if the proposed adoptee is a child, provide a full description and statement of value of all property owned, possessed or in which the child has an interest.15
The adoption petition failed to allege jurisdiction and did not provide a full description and statement of value of all property in which the children have an interest. The adoption petition is a preprinted form that allows a petitioner to check the appropriate box next to the applicable factual circumstances. In neither adoption petition did the appellee check any box under the paragraph for “[t]his Court has jurisdiction over the minor child under §7.04.030, because...” In the section of the adoption petition regarding child’s property, the petitioner indicated there was no property for either child. Appellant alleges that the children have property in the form of per capita distributions from the Tribe. The Children’s Court made no findings regarding the court’s jurisdiction, nor assets of the children. The Children’s Court was
14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016) p. 46
familiar with the factual circumstances of the children. The Children’s Court placed these children in a guardianship and held an adoption hearing. The Children’s Court did not make any findings to resolve the omissions. It was error for the Children’s Court to proceed with adoption proceedings when the adoption petitions did not meet the statutory requirements.
The next issue is whether the mother received notice of the adoption proceedings. PTC §7.04.1080 requires that “[n]otice shall be provided in accordance with the notice procedures… except that the Court may determine that it is unnecessary to give notice to specific individuals, including a parent whose parental rights have been terminated.” The decrees of adoption do not make any findings regarding service of notice of the adoption proceedings on the mother/ appellant.16 This Court will not speculate as to why the Children’s Court did not make findings regarding service of the notice of the adoption proceedings, although PTC §7.04.1080 does provide the service of the notice of adoption proceedings to a parent may be unnecessary when the parental rights have been terminated. We have already determined that the required service of process for the termination of parental rights proceedings were not legally proper, which thereby invalidates the termination of parental rights proceedings and the subsequent adoption proceedings. An adoption cannot proceed until parental rights are properly terminated.
The next issue was whether the Children’s Court considered the adequacy of the termination of parental rights order. PTC §7.04.1120(a)(2) requires the court to conduct a hearing to determine if it is in the best interests of the child to be placed with the petitioners by examining among other things, the termination of parental rights order. The written record only contains the decrees of adoption, which do not contain findings by the Children’s Court as to whether any examination was made of the termination of parental rights order and other requirements specified by PTC §7.04.1120.17 Neither party referenced the oral record in briefing to show that the Children’s Court satisfied the requirements of PTC §7.04.1120 by making oral findings. Further, this Court has determined that the termination of parental rights proceedings, and therefore the order terminating parental rights, were not in compliance with Puyallup Tribal law.
Appellant next made a general assertion that the home study was inadequate under the statute. However, the appellant did not adequately brief this issue. The appellant did not identify the specifics of the inadequacy of the home study. The burden is on the appellant to adequately identify and support alleged errors in a manner sufficient for the Court of Appeals to review the alleged error.
Finally, the appellant raises an issue regarding enforcement of visitation provisions in the adoption decrees. The adoption decrees provide that the children “and members of the Child’s natural extended family (including parents) may have a right of reasonable visitation with each other, subject to reasonable controls of the adoptive parent…” Appellant asserts that appellee has stopped visitation with the child’s extended family without reasonable cause. Here, there is no issue for the Court of Appeals to review, because the appellant did not show that the Children’s Court has made decision on this issue that may be an error. Enforcement of a provision in the adoption decree is a matter that is proper for the Children’s Court.
14 NICS App. 40, IN RE THE ADOPTIONS OF: D.A.S, JR. AND T.E.J.B.S. (July 2016) p. 47
CONCLUSION
The Children’s Court erred by not following all required statutory requirements in terminating the mother’s parental rights and in the adoption proceedings, which errors substantially affected the rights of the mother provided for by Puyallup Tribal law. Therefore, the orders terminating the parental rights of the appellant and the adoption decrees are to be vacated.
ORDER
IT IS THEREFORE ORDERED that the orders for the involuntary termination of parental rights issued on April 10, 2015, are hereby VACATED.
IT IS FURTHER ORDERED that the Decrees of Adoption issued on April 13, 2015, are hereby VACATED.
IT IS FURTHER ORDERED that these cases are REMANDED to the Children’s Court to conduct further proceedings and to issue any orders necessary to restore the children to the guardianship with T.D.F.
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.
At oral argument the appellee raised for the first time the issue of timeliness of when the appellant filed the notice
of appeal. An adoption decree shall remain interlocutory for six months from date of entry of such decree, and shall become final at the expiration of said six months. 7.04.1130(a) Adoption decree. The adoption decrees were filed on April 13, 2015. The notice of appeal was filed on October 28, 2015. The notice of appeal was filed more than six months after the adoption decrees were filed. However, the appeal is based in large part on the issues of proper service of process on the appellant. There is nothing in the record before the court showing when the appellant received notice of the entry of the orders terminating her parental rights or adoption decrees. Therefore, even if the appellee had raised the timeliness of the appeal issue in her response brief, she would have had to show when the appellant was served with copies of the order terminating parental rights and the adoption decree. This Court is therefore not reviewing timeliness of the filing of the notice of appeal.
Fern v. Torres, 6 NICS App. 200 (October 2004).
See Petition for Termination of Parental Rights, section “VI. PRE-FILING REQUIREMENTS”, filed 2/11/2015, pg. 3.
The code sections listed on the pre-printed petition for termination of parental rights are inconsistent with the code. Pre-filing requirements are provided for in the Puyallup Tribal Code 7.04.900.
PTC §7.04.900(a).
7.04.900 Prefiling requirements.
A petition seeking involuntary termination of the parent-child relationship must establish the following:
(a) The child has been found to be an abandoned or neglected child under the Code for at least a one-year period of time, and has been removed from their parent at the time of this termination hearing for a period of one year or more;
(b) The Court has entered an order which states what the parent was required to correct their underlying problem(s);
(c) The social service agency involved has made a good faith attempt to offer or provide all Court-ordered and/or necessary services that are reasonably available in the community and which are capable of helping the parent resolve his or her underlying problem(s);
(d) There is little likelihood the conditions will be remedied so that the child can be returned to the parent(s) in the near future;
(e) Continuation of the parent-child relationship clearly diminishes the child’s prospects for successful placement into a permanent and stable home; and
(f) Not returning the child to their parent is the least detrimental alternative that can be taken. [Res. 191112A (11/19/12); Res. 070312A (03/07/12); Res. 180599F (05/18/99); prior code § 7.01.2120. Formerly 7.04.870]
See Appellant’s Brief, Exhibit 11.
In Re the Parental Rights of V.W., 13 NICS App. 53, 58 (August 2015).
Id.
See Id.
See PTC 7.04.930(a).
PTC 7.04.94(a).
This document served as the pre-termination report and is referenced as such within the document.
PTC 7.04.940 Pretermination report.
PTC § 7.04.1070(a)(5).
Decree of Adoption, filed 4/13/2015.
If a trial court does not want to include findings in the adoption decree, a separate document that includes the findings of fact and conclusions of law should be considered.