16 NICS App. 1, PARKS v. TAYLOR (March 2018)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

James C. Parks, Respondent/Appellant,

v.

Tammy Lee Taylor, Petitioner/Appellee.

NO.    TUL-CV-AP-2017-0199 (March 14, 2018)

SYLLABUS^*

Appellant claimed that trial court made mistakes in law and procedure when it issued two permanent Domestic Violence Protection Orders (DVPOs) and when it allowed prohibited people at an evidentiary hearing. Court of Appeals determined that the trial court made an error of law in issuing the DVPOs as requirements of the code were not met, including when it based its decision on a petition and supporting documentation that failed to allege the violence is a current issue in need of court action. Court of Appeals found that appellant did not show how the trial court applied any inappropriate legal standard to the facts or abused its discretion by allowing certain individuals to attend an evidentiary hearing. Court of Appeals reversed the trial court’s decision and vacated the DVPOs.

Before:	Daniel A. Raas, Chief Justice; Ric Kilmer, Justice; Douglas Nash, Justice.
Appearances:	James C. Parks, Appellant, appeared pro se; James P. Kerney, Tulalip Office of Legal Aid, for the Appellee.

OPINION

Per Curiam:

SUMMARY OF PROCEEDINGS

This matter is before the Tulalip Tribal Court of Appeals for the third time; this time pursuant to a Notice of Appeal filed June 12, 2017 by James C. Parks, appealing two Domestic Violence Protection Orders (DVPOs) issued by the Tribal Court on June 7, 2017, arguing that

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the Tribal Court made mistakes in law and procedure that affected the outcome of the proceedings.

This Notice of Appeal was timely filed and served, as required by Tulalip Tribal Code (TTC) 2.20.030(1) and (3). The DVPOs are final orders, and thus are appealable. TTC 2.20.020 (2)(a).

TTC 2.20.020(1) requires that the party appealing claim “in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of the case.” TTC 2.20.030 provides that the appealing party, in its notice of appeal, state the reason or grounds for appeal. TTC 2.20.050 states that the Court of Appeals shall dismiss the appeal if it was “filed frivolously and without good faith[.]” This Court may dismiss the appeal if the party fails to comply with the appellate rules.

The first appeal involving Mr. Parks, Tara Parks, his wife, her parents, and the children concerned a guardianship order over two children awarded by the Tulalip Tribal Court to their maternal grandmother, Tammy Taylor, in February 2017. Their mother, Tara Parks, is deceased. Mr. Parks, the father, appealed that Order. He argued that the Tribal Court made a mistake in the procedure it took to deny his motion to modify. This Court agreed, and found that the Tribal Court had failed to make any findings of fact that were required by statute, and remanded for the Tribal Court to conduct a hearing and make the statutorily-required findings of fact and conclusions of law. The Tribal Court did so, and entered a new Guardianship Order in March 2017. Mr. Parks appealed that guardianship order, but the appeal was dismissed later that month, in No. TUL-CV-AP-2017-066, pursuant to TTC 2.20.050(1) for failing to meet the requirements of TTC 2.20.030(2) by not stating required reasons or grounds for appeal, and for requesting relief this Court could not and would not grant: a trial de novo and substitution of this Court's judgment for that of the Trial Court's.

In May 2017, Ms. Taylor, mother of Tara Parks and Appellee here, sought and ultimately obtained on June 7, 2017, two permanent civil DVPOs against Mr. Parks, for the protection of the two children. (Ms. Tara Parks, the children's mother, had made domestic violence allegations against Mr. Parks before her death by overdose, and obtained a criminal DVPO against Mr. Parks that was due to expire when Ms. Taylor filed for the DVPOs at issue here.) Ms. Taylor, the court appointed guardian of her grandchildren, did not personally appear at the June 7, 2017, evidentiary hearing at which the issuance of permanent civil DVPOs was considered, her attorney did not call any witnesses, nor did she file an affidavit alleging any domestic violence. Instead, she relied upon the allegations made in Ms. Parks’ initial Petition for a criminal DVPO and its attachments which included, among other documents, the Order granting the guardianship and a Tulalip Tribal Police report. Mr. Parks testified at this June 7, 2017, hearing. The Court granted the Petition and issued permanent civil DVPOs that would not expire until the minor children turned eighteen years of age. They were ages nine and twelve when these orders were granted.     

Mr. Parks appeals those DVPOs—arguing essentially that because they prohibit him from having any contact whatsoever with his two children until they reach eighteen, they are

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tantamount to a termination of his parental rights without the Tribal Court having followed statutory procedure or having complied with the standard of proof required under Tulalip Law. Thus, he says, the evidence was insufficient as a matter of law to issue those DVPOs. He also argues that the Court allowed to be present at the evidentiary hearing people not authorized to be there, and that their presence unduly and unfairly influenced the Court's judgment. Those are the issues that we will discuss and decide below.

This Court decides these issues by reviewing the written and oral Tribal Court record, the written briefs filed with this Court, and the parties' oral arguments. TTC 1.11.010

STANDARD OF REVIEW

TTC 2.20.090 provides the relevant standards that this Court of Appeals is to use when reviewing a decision of the Tribal Court:

(4) A conclusion of law shall be reviewed de novo, or without deference to the Tribal Court’s determination;

(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.

This Court ruled, in Davis v. Tulalip Tribes, 5 NICS App. 11, 14 (Tulalip Tribal Ct. App. 1997):

    When reviewing the findings of fact of the lower court, this Court must find some abuse of discretion on the part of the judge before we may disturb the lower court order. An abuse of discretion does not exist if the findings of the judge are supported by substantial evidence. Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 263 (Hoopa 1993). Substantial evidence is “evidence which would convince an unprejudiced, thinking mind of the truth of a declared premise.” Lower Elwha v. Elofson, 4 NICS App. 99 (Lower Elwha 1996), citing Freeburg v. Seattle, 71 Wash. App. 367, 859 P.2d 610 (1993).

    This factual review is deferential. It requires us to view the evidence and the reasonable inferences drawn therefrom in “the light most favorable to the party who prevailed in the highest forum that exercised fact finding authority.” Elofson, NICS 99, 103 (Lower Elwha 1996) (citing Freeburg, 71 Wash. App. at 371).

    It is the role of the fact finder to make determinations regarding the credibility of the witness that testifies before him and to weigh the reasonable yet competing inferences which can be drawn from that testimony. It is the role of this Court to support these factual findings unless there has been an abuse of discretion.

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A manifest abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. . . 8 NICS App. 8, 11 (Hoopa Valley, 2007), Salem v. United States Lines Co., 370 U.S. 31, 82 S. Ct. 1119, 8 L.Ed.2d 313 (1962), reh. denied, 370 U.S. 965, 82 S. Ct. 1578, 8 L. Ed.2d 834 (1962); Delno v. Market Street Railway Co., 124 F.2d 965 (9th Cir. 1942).

“Abuse of discretion” is synonymous with a failure to exercise a sound, reasonable, and legal discretion. Black's Law Dictionary, 10 (7th ed. 1999).

The abuse of discretion standard, as opposed to the de novo standard, affords appropriate deference to the fact finder, recognizing that she has examined the witnesses first hand and is therefore better equipped to make determinations relative to credibility. Consequently, there may be substantial evidence to support findings for either side of a contested issue yet we should refrain from disturbing the trial court's findings even if, in the balance, we disagree with them. This is why substantial evidence is often defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion and consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.”

Fern v. Torres, 6 NICS App. 200, 202 (Chehalis Tribal Ct. App. 2001)

The Tribal Court is in the best position to hear the parties’ testimony, observe the demeanor of the witnesses, determine witness credibility, and make its decision based on the evidence before it. Absent a clear abuse of discretion, this Court will not substitute its judgment for that of the Tribal Court.

We give considerable deference to the Tribal Court. If there is substantial evidence in the record to support the Tribal Court’s conclusions/findings, then it is our role to support those findings absent an abuse of discretion. TTC 2.20.090(8).

DISCUSSION

The issues before this Court are:

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A. Applicable Tribal Policies

We note at the outset that various tribal policies are applicable here; domestic relations, family, youth, and domestic violence issues. The Tulalip Tribes has enunciated its goals regarding protecting the rights of individuals; trying to keep families together; keeping children in the homes of their natural parents, if possible; uniting children with their parents; maintaining connections and contact between a child and its parents, when appropriate—if the youth is placed outside the immediate family home; and providing the victim of domestic violence or family violence the maximum protection from further violence that the law, and those who enforce the law, can provide.

Specifically, in the Tulalip Youth Code, TTC 4.05, the Tulalip Tribes declare general policies regarding tribal children, as well as specific policies regarding Tulalip children in child welfare matters. TTC 4.05.010 states, in relevant part:

The Juvenile and Family Code is a family-centered approach that places family as the primary source for understanding the needs and challenges of the child, with the belief that the child is best served in the context of families and that families are best served in the context of their community. Maintaining the child in the home of their natural parents is a major purpose of this chapter.

TTC 4.05.020 provides “Guiding principles for child welfare”:

The Tulalip Tribes endeavors to protect the best interest of Indian children by:

(1) Preventing the unwarranted breakup of families;

(2) Maintaining the connection of children to their families, the Tribes, and Tribal community when appropriate;

(3) Promoting the stability and security of the Tribes by establishing standards for appropriately handling situations involving Tribal children and families in need of services;

(4) Utilization of case management, which allows for and assumes individualized practice to best serve the varying strengths and needs of every child and family; and

(5) Utilization of ongoing assessments and re-assessments to provide for the strengths and needs of the child and family.

Should there be any conflict in the application of these principles and the written law, the liberal application of these principles in the context of what is in the best interest of the child shall prevail.

TTC 4.25.010 of the Domestic Violence Chapter provides:

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The purpose of this chapter is to recognize domestic violence and family violence as serious crimes against society, the Tribes, and the family, and to provide the victim of domestic violence or family violence the maximum protection from further violence that the law, and those who enforce the law, can provide. Furthermore, the purpose of this chapter is to recognize that the strength of the Tribes is founded on healthy families, and that the safety of victims of domestic and family violence, especially children, must be ensured by immediate intervention of law enforcement, prosecution, education, treatment, and other appropriate services.

It is the intent of the Tulalip Tribes that the official response of domestic violence and family violence shall stress the enforcement of the laws to protect the victim and to hold the perpetrator accountable, which will in turn communicate the Tribes’ policy that violent behavior against intimate partners or family members is criminal behavior and will not be excused or tolerated. This in turn will promote healing of families and the Tribes where possible, and promote cultural teachings and traditional Tribal values so as to nurture nonviolence and respect within families. This chapter shall be interpreted and applied to give it the broadest possible scope to carry out these purposes.

B. The Two Issues in this Case.

Question #1. Were the June 7, 2017, Orders making the Domestic Violence Protection Orders permanent properly issued by the Tribal Court?

    The key sections of the Tulalip Tribal Code pertaining to this issue are as follows:

4.25.480 Persons Authorized to File:

(1) A petition to obtain a protection order under this section may be filed by:

(b) A family member or household member of a minor or vulnerable adult alleged to be the victim of domestic violence, family violence, dating violence or stalking on behalf of the minor or vulnerable adult.

4.25.490 Petition for Protection Orders or Modification:

(1) A petition shall allege the existence of domestic violence, family violence, dating violence or stalking and shall be supported by an affidavit made under oath stating the specific facts and circumstances justifying the requested order.

As noted above, the original criminal protection order was obtained by Tara Parks, the mother of the children who has since passed away. The duration of that order was one year and it was about to expire when Ms. Taylor sought to have the order renewed and extended permanently.

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It is unclear whether Ms. Taylor has standing – the legal ability – to seek a renewal of the criminal DVPO obtained by Tara Parks. We do not address or decide this issue, because it is clear that Ms. Taylor has independent standing to seek original protection orders under TTC 4.25.480(1)(b), above. Therefore, we treat her Petition to renew Ms. Parks’ criminal DVPO as an initial Petition for a civil DVPO.¹

However, the Tribal Court committed reversible error in granting Ms. Taylor’s request for permanent civil DVPOs for both children of Mr. Parks when it based its decision only upon the petition and documents filed nearly a year previously by Tara Parks. TTC 4.25.490(1), immediately above, specifies that a petition shall allege the “existence” of domestic of family violence indicating that the violence is a current issue in need of court action “… and shall be supported by an affidavit made under oath stating the specific facts and circumstances justifying the requested order.”

Ms. Taylor, acting as the Guardian of JCP, one of Mr. Parks’ children, filed a Petition alleging that this child has suffered domestic violence and abuse from Mr. Parks. In support of this Petition, she includes several documents from prior cases involving Mr. Parks and his deceased wife and their children. Ms. Taylor did not file the required affidavit in support of her Petition. With one possible exception, the statements in the Petition do not allege any current issues that would support the issuance of the DVPO. While the Petition references JTP, the other child of Mr. and Mrs. Parks, there are no direct allegations of domestic violence or abuse that this child may have suffered through Mr. Parks’ actions and JTP is not directly referenced in the Petition, thus leaving the Tribal Court to assume, without evidence, that JTP suffered the same domestic violence and abuse as allegedly suffered by JT P. Instead, Ms. Taylor relies upon the attachments to her Petition, at least one of which, the police report, contains hearsay not within any exceptions to the Hearsay Rule. None of these documents speak to present domestic violence or abuse. Without explanation from the Tribal Court regarding the admissible evidence that it relied upon, we cannot determine whether the DVPOs were properly issued. The Tribal Court compounded its error by not including in the record its consideration, if any, of the tribal policies regarding family cohesion and the importance of preserving tribal heritage, ² or by discussing, on the record, the efforts which Mr. Parks has made to rehabilitate himself after the events recited in the Petition and its attachments before it barred Mr. Parks from any contact with his children until they were 18 years old or by making provision for future review as contemplated by TTC 4.05.020(5), quoted above.

The proper course of action would have been for Ms. Taylor to initiate a new request for a protection order for both children and file an appropriate petition and affidavit with supporting documentation. We note that such filings and any testimony before the Tribal Court must

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contain admissible evidence sufficient to support the issuance of a DVPO, and that the Tribal Court must ultimately permit examination and cross-examination of relevant witnesses before coming to its decision. TTC 4.25.500(4)(a). If the Tribal Court relaxes the rules of evidence or allows relevant witnesses not to testify, the reasons for these decisions must be reflected in the record in order to permit appellate review. Unless the clear requirements of TTC 4.25.490 and TTC 4.25.500 have been met, which they were not here, the Tribal Court cannot issue a civil DVPO, and to do so is an error of law.

Mr. Parks (Appellant) contends that the permanent extension of the protection orders essentially deprives him of any future contact with his children, and thus is tantamount to a termination of his parental rights. In light of our rulings herein we do not reach this issue.     

Question #2: Did the Tribal Court abuse its discretion by permitting certain persons to be present in the courtroom to the prejudice of Appellant?

Mr. Parks also argues that the court erred when it allowed certain persons to be present at the June 7, 2017, hearing when the DVPOs were being decided and issued: namely a “court employee” or “officer,” as he labeled Ms. Hayden-Jones, a tribal DV Prosecutor, and members of the Legacy of Healing program. This argument fails on at least three independent grounds.

Initially, during the hearing Mr. Parks failed to object to their presence, as he admits at the very top of page 4 of his six-page brief. Nor did he make any motion to have them excluded. He claims he let the Court know that he felt out-numbered by their presence. The Tribal Court generally must be given an opportunity to correct such obvious potential errors before this Court will consider the claim.

Secondly, Mr. Parks failed to identify in his briefing or at oral argument how their presence prejudiced him in any way. He argues here that not only did he feel “out-numbered,” but that the Court itself must have been intimidated by these people's presence and thus they unduly influenced the Judge's decisions (as he stated in his notice of appeal). This Court is confident that the Tribal Court Judges are professionals who will not allow the mere presence (or absence) of certain people at hearings to influence their decision-making. See also, TTC 2.05.030(4) -- Freedom from Improper Influence.

Finally, the presence of the DV Prosecutor, Ms. Hayden-Jones, and members of the counseling staff is specifically allowed by Tulalip law. Although civil court proceedings arising from a domestic violence petition are closed to the general public, TTC 4.25.240(2) grants the court discretion to designate appropriate persons who may be in the courtroom during consideration of a Petition for a DVPO. Mr. Parks has not identified any abuse of that discretion, other than to identify his feelings versus any facts to support his feelings or assertions. Further, TTC 4.25.480 allows the prosecutor and members of the Legacy of Healing program, among certain other specified people, to themselves file petitions for civil DVPOs on behalf of alleged DV victims. The Code envisions the prosecutor and Legacy of Healing staff to be present at such

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civil hearings, even if they themselves did not file the petition, if they have an interest in the matter. (See also, TTC 4.25.520(1) and (2).)

Given the long convoluted history of this case—from its origins as a dissolution matter with domestic violence allegations, to its evolution into a permanent guardianship with Ms. Taylor, through the issuance of the initial criminal DVPO which led to the civil DVPOs at issue here--it is natural that the Court would allow the presence of the DV prosecutor and tribal DV advocates at the hearing where it was to decide whether to extend the DVPO that was set to expire. (The DV Prosecutor is an officer of the Court and is therefore not considered a member of the “general public” for purposes of criminal or civil domestic violence-related proceedings.)

The Tribal Court’s decision to allow the tribal prosecutor and members of the Legacy of Healing program to be present was a discretionary act of the Tribal Court which is reviewed under TTC 2.20.090(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.

This Court is not convinced that the Court abused its discretion in allowing the prosecutor or Legacy of Healing staff to be present. Mr. Parks has not shown how the Court applied any inappropriate legal standard to the facts or abused its discretion in this regard.

CONCLUSION AND ORDER    

It is hereby ordered that this case is REVERSED and the DVPOs issued in this matter are VACATED. This Opinion applies only to the DVPOs at issue herein and does not affect the validity or enforceability of any other Orders or Plans regarding the care, custody, control or visitation with the children, JTP and JCP.

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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.

TTC 2.05.030 establishes one of the general goals of the Tribal Court to be “to secure the just, speedy, and inexpensive determination of every civil action.” TTC 2.04.030(1)(a). It would not be just, or speedy, or inexpensive to reverse the Tribal Court’s DVPOs on the grounds that Ms. Taylor did not have standing to renew Ms. Parks’ DVPOs when Ms. Taylor could then file the essentially the same Petition that gave rise to the DVPOs that are now before us.

The Petition alleges that Mr. Parks is a member of the Muscogee Creek Nation.