16 NICS App. 35, PARKS v. TAYLOR (December 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-2018-0158 (December 4, 2018)
SYLLABUS*
Appellant alleges trial court made mistakes in law and procedure when it denied his motions for visitation and to terminate guardianship. Court of Appeals found that 1) appellant failed to meet the code requirements of showing that a substantial change of circumstances occurred to justify guardianship termination and 2) appellant should have initially filed an administrative request for visitation with the proper tribal department. Court of Appeals ruled that trial court did not error or make mistake in law or procedure. Trial court’s order affirmed.
|
Before: |
Daniel A. Raas, Chief Justice; Ric Kilmer, Justice; Douglas Nash, Justice. |
|
Appearances: |
Paula Plumer, for the Appellant; 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 fourth time—this time pursuant to a Notice of Appeal filed June 11, 2018, by James C. Parks, appealing the Tribal Court's June 6, 2018, Order Denying Motion to Terminate Guardianship and Motion for Visitation. Mr. Parks argues that the Tribal Court made mistakes in law and procedure that affected the outcome of the proceedings.
The Notice of Appeal was timely filed and served, as required by Tulalip Tribal Code (TTC) 2.20.030(1) and (3). The June 6 order is a final order and thus is appealable. TTC
16 NICS App. 35, PARKS v. TAYLOR (December 2018) p. 36
2.20.020(2)(a). (We adopt the captioning used by the parties in all these four appeals, although the Tribal Court's June 6, 2018, order says In re the Guardianship of J.T.P. and J.J.P..)
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 that second appeal was dismissed 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 Tammy Parks and co-Appellee here, sought and ultimately obtained on June 7, 2017, two permanent civil Domestic Violence Protection Orders (DVPOs) against Mr. Parks, for the protection of the two children. Mr. Parks appealed those two orders. In that third appeal, this Court vacated those two DVPOs while simultaneously ruling that no other orders concerning the care, custody and control of, or visitation with, the children were affected by the vacation of the DVPOs.
On March 20, 2018, Mr. Parks filed a motion for “emergency visitation” and to terminate the guardianship granted earlier to Lance and Tammy Taylor. The Tribal Court, however, found that Mr. Parks was once again merely attempting to litigate the issues already addressed in earlier orders and appeals. It found that there was no substantial change of circumstances to terminate the guardianships.
For this appeal, we decide the issues raised by reviewing the written and oral Tribal Court record, the written briefs filed with this Court, and the parties' oral arguments. TTC 2.20.100
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:
16 NICS App. 35, PARKS v. TAYLOR (December 2018) p. 37
(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.
An 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
16 NICS App. 35, PARKS v. TAYLOR (December 2018) p. 38
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 an 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, and the Tribal Court applied the appropriate legal standards, 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 whether the Tribal Court made mistakes in interpreting the law, and/or mistakes in procedure, which affected the outcome of the case—in particular, when it denied Mr. Parks’ motions to terminate the guardianship and for visitation.
As we did for all three previous appeals, 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 declares general policies regarding tribal children, as well as specific policies regarding Tulalip children in child welfare matters.
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;
16 NICS App. 35, PARKS v. TAYLOR (December 2018) p. 39
(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 2.05.030(a) and (d) require that the statutes governing the Tribal Justice System be construed “to secure the just, speedy and inexpensive determination of every civil action” and “to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay[.]”
TTC 4.05.650 states that there are two types of legal guardianship of a child: 1) one that results from a youth-in-need-of-care (“YINC”) case; and 2) a private legal guardianship. The guardianship at issue here is the latter—a private guardianship, not a YINC guardianship. “In all cases, under the section, the best interests of the child shall guide the Court’s decision.”
Tulalip's Indian child welfare program, beda?chelh, plays a role in both types of guardianships—but is more intimately involved, by statute, in guardianships arising from YINC cases. However, in either type of guardianship, beda?chelh has “the ability to file motions in guardianship cases to request judicial review of a case to address any concerns that may arise.” TTC 4.05.690(1)(a)(ii).
“After guardianship is granted, beda?chelh and the Court retain jurisdiction until the child turns 18 or is adopted but no further Court review is required unless there is a change of circumstances or a request for Court review is made by the beda?chelh guardianship team.” TTC 4.05.710.
TTC 4.05.700(1)(b) governs motions by parents to terminate a guardianship. For a private guardianship, such as the one at issue here, a parent seeking to have the guardianship terminated must show that there has been a substantial change of circumstances as a preliminary matter. Mr. Parks was required to show a substantial change of circumstances, not that there has been some change.
In its Order, at pp. 3-4, the Tribal Court went into extensive detail and explanation of how the things Mr. Parks presented were irrelevant, redundant, or relatively minor when considering the totality of this case. There is ample explanation and justification to support the Court's ultimate finding that there was no substantial change of circumstances since the guardianship orders were entered.
The Court further ruled that Mr. Parks was once again essentially trying to relitigate facts and issues presented numerous times before. (That is the crux of his original Notice of Appeal here—that there was no “justification” or “cause” to support issuance of the original guardianship orders, and that the Court did not consider remedies other than the “unwarranted
16 NICS App. 35, PARKS v. TAYLOR (December 2018) p. 40
breakup” of the family.) The Court found that Mr. Parks had failed to meet his burden of showing a substantial change of circumstances justifying the termination of guardianship over the two children.
As we stated above, 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). We cannot see where the Court made any mistake in law or procedure in making its findings.
The propriety of the Tribal Court's denial of Mr. Parks' motion for visitation can be decided purely on procedural grounds.
TTC 4.05.690(1)(a)(iii) provides:
Standing. A relative or person who has a significant familial relationship or maintained an ongoing relationship with child in guardianship shall have the ability to file motions in guardianship cases with respect to visits so long as they first follow the administrative request procedures with beda?chelh outlined under TTC 4.05.710(1).
Mr. Parks failed to follow such requisite administrative request procedures. Instead of filing a motion for visitation directly with the Court, he first should have administratively filed a request for visits with beda?chelh—who then, presumably, would do its own investigation of whether the request should be granted or denied. Of course, the Court retains the ultimate discretion in deciding what, if any, visitation is appropriate—pursuant to TTC 4.05.690(d). The Tribal Court did not err when it denied Mr. Parks' motion for visitation.
Because we are affirming the Order denying visitation on these procedure grounds, there is no need to address the other issues raised regarding this order denying visitation—including Mr. Parks’ argument that the denial of all visitation effectively amounts to a termination of his parental rights without compliance with Tulalip Tribal Code, in particular TTC 4.05.870-980. (Mr. Parks has not been able to communicate with or see his children since the guardianship was first established.) However, we are troubled by what appears to be, from the Court record, little involvement by beda?chelh in this private guardianship.
As noted above, the Tulalip Tribes has a strong policy preference for preserving the family unit and a child’s relationship with its parents. TTC 4.05.020. To assist in the preservation of the child-parent relationship, the Code mandates continuing review of a guardianship to provide as much interaction between the child and his/her parent as is consistent with the best interests of the child. Id.
Although beda?chelh has greater duties in YINC guardianships as opposed to this private guardianship, it nonetheless has duties to the children and to Mr. Parks, their surviving parent. Among those duties are periodic reviews, and, when deemed appropriate by beda?chelh or requested by the Court or an appropriate petitioner, such as a parent, provide reports to the Tribal Court regarding the status of the guardianship and progress, if any, in reuniting the family. TTC 4.05.690 and 710. At oral argument, Respondents noted that such reviews had been done, but that any reports beda?chelh had produced were not forwarded to the Tribal Court. Appellant
16 NICS App. 35, PARKS v. TAYLOR (December 2018) p. 41
Parks stated that he not been interviewed by beda?chelh or been given copies of the reports. If these representations are true, then the policy goal of strengthening the child-parent bond with an ultimate goal of re-establishing the family unit, per TTC 4.05.020 and 040, is being seriously undercut.
Mr. Parks’ concern that his parental rights are being terminated without compliance with the Tulalip ordinances is thoroughly understandable. However, this issue is not before this Court in this appeal.
If he makes the requisite administrative request to beda?chelh for visitation, we trust that beda?chelh will take his argument into consideration of any request for visits, as required by TTC 4.05.710(1). And, pursuant to TTC 4.05.690(a)(i) and (ii), beda?chelh is required to review these guardianship cases semi-annually for at least three years (or longer, if there are any concerns), and may seek judicial review of any concerns that do arise.
CONCLUSION AND ORDER
It is hereby ordered that the June 6, 2018 Order Denying Motion to Terminate Guardianship and Motion for Visitation is AFFIRMED.
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.