1 NICS App. 33, In Re the Welfare of A.B. (November 1988)

IN THE KALISPEL TRIBAL COURT OF APPEALS

KALISPEL INDIAN RESERVATION

USK, WASHINGTON

In Re the Welfare of A.B., a Minor Indian Child

No. 87-103JUV (November 8, 1988)

SUMMARY

A potential foster care provider without legal custody of the child has no legal rights that can be affected by a trial court's orders, and has no standing to appeal. A witness at trial who was neither a party nor a legal guardian is without standing to appeal a trial court decision.

FULL TEXT

Before:

Charles R. Hostnik, Chief Justice; Cecelia Hawk, Justice; Emma Dulik, Justice.

DECISION AND ORDER

HOSTNIK, Chief Justice:

This matter comes before the Kalispel Court of Appeals pursuant to a Notice of Appeal filed by Laurie Andrews, a Kalispel tribal member who is not a party to this action. The appeal was filed pursuant to Section 1-12.03 of the Kalispel Appellate Code, which requires a written Notice of Appeal to be filed within ten days from the entry of judgment.

The matter being appealed is the Kalispel Tribal Court's order of September 23, 1988 placing A. B. with Alpine Boys Ranch in Wenatchee, Washington. The Notice of Appeal was timely filed, and met the content requirements of Section 1-12.03A of the Kalispel Appellate Code.

BACKGROUND

A. B. has been a ward of the Kalispel Tribal Court since September 4, 1987. At that time he was in the custody of his mother. By order dated November 19, 1987 custody was given to Laurie Finley. On December 2, 1987 custody was given to Stan and Jean Bluff.

Eight days later the court entered an order stating that "available resources for placement on the Kalispel Indian Reservation have been exhausted" and placed custody in the Department of Social and Health Services (hereinafter "DSHS") of the State of Washington for placement.

1 NICS App. 33, In Re the Welfare of A.B. (November 1988) p. 34

No further custody orders were entered prior to the court review hearing on September 23, 1988.

DISCUSSION

The initial Appellate Hearing required by Section 1-12.05 of the Kalispel Appellate Code was conducted on October 7, 1988. Under that section of the Appellate Code, this court is to review the record and hear oral argument "to determine whether or not the facts and/or laws as presented in the appealed case warrant a limited appeal on issues of law and/or facts, whether a new trial should be granted, or whether the appeal should be denied."

The first issue that arises is whether the Appellant has a right to appeal the court's placement order.

Under Section 7-1.10 of the Tribal Youth Code any final order of the Youth Court may be appealed "according to the rules and practices of the Kalispel Tribal Appeals Court." Although this section of the Youth Code indicates what may be appealed, it does not specify who may appeal final orders.

The only provision which discusses who is permitted to file an appeal is Section 1-12.03 of the Appellate Code. That section provides that an "aggrieved party" may file a Notice of Appeal. Is Laurie Andrews an aggrieved party?

The term "aggrieved party" is not defined in the Kalispel Appellate Code. However, that term "aggrieved party" has been defined as follows:

"One, within the meaning of the statute governing appeals, who has an interest recognized by law in the subject matter which is injuriously affected by the judgment, or one whose property rights or personal interests are directly affected by the operation of the judgment or decree." Ballentine's Law Dictionary, 3rd ed., 1969, p. 51.

Laurie Andrews appeared at the September 23, 1988 hearing as a witness. She was a potential foster care provider for A. B. She did not have legal custody of A.B. Laurie Andrews appeared at that hearing to request that A.B. be placed with her, rather than at Alpine Boys Ranch as advocated by: (1) the Social Services Worker, (2) the Guardian Ad Litem, and (3) A.B.'s own attorney.

At the time of the September 23rd hearing, Anthony was a ward of the court. By order dated December 10, 1987 the Tribal Court placed custody in DSHS. As part of that order, DSHS was required to advise the Kalispel Indian Child Welfare Advisory Committee (hereinafter "KICWAC") of the names of foster care providers and the location of placement. DSHS was also required to provide copies of placement monitoring reports to KICWAC. At the time of the September 23,1988 hearing, DSHS had legal custody of A.B.

Under the Kalispel Tribal Youth Code no specific rights are given to

1 NICS App. 33, In Re the Welfare of A.B. (November 1988) p. 35

potential foster care providers, except "interested parties" are permitted to testify and give evidence "regarding the present circumstances of the child and of the parents, custodians, or possible custodians of the children" at dispositional hearings. Tribal Youth Code, Section 7-3.13. Laurie Andrews could be considered a "possible custodian" of A.B. at the September 23rd hearing. However, allowing a possible custodian to testify does not turn that witness into a party who would then have the right to appeal the court's decision.

The distinction between a witness and a party is important. Someone may become an interested party that would be permitted the right to intervene in the action if that person had an interest in the case of such a direct and immediate nature that the person will either gain or lose by the direct operation and effect of the judgment. Ballentine's Law Dictionary, 3rd Ed., 1969, p. 648 ("interested person"). With respect to the right to appeal the judgment, one is an interested person if he or she has some immediate legal right, or is under some legal liability, that may be enlarged or diminished by the judgment. Ballentine's Law Dictionary, 3rd Ed., 1969, p. 648 ("interested person").

Laurie Andrews did not at the time of the September 23rd hearing have any right which the court's order enlarged or diminished, since she did not have legal custody of A.B. No evidence was introduced that DSHS considers Laurie Andrews an appropriate foster care provider, or that DSHS actually placed A.B. with Laurie Andrews at the time of that hearing.

There was no other evidence introduced at the hearing showing that Laurie Andrews had any interest in this case other than as a potential foster care provider. Until a potential foster care provider is granted legal custody of a ward of the Kalispel Tribal Court, that party has no legal rights that can be affected by the Tribal Court's orders. Laurie Andrews is not a "party" that is permitted to appeal Tribal Court orders under Section 1-12.03 of the Kalispel Appellate Code.

This analysis is consistent with this court's overriding duty to act in the best interests of the child. It is not in the best interests of any child to have protracted litigation. Once a full hearing is conducted at which all alternatives are explored and investigated, it is appropriate to determine placement based on that evidence. That occurred in this case.

Under the Kalispel Tribal Youth Code the child's interests are protected by the appointment of a Tribal Advocate. In this case, the Tribal Advocate was the Guardian Ad Litem who acted on behalf of A.B. A.B.'s interests were also protected by Ann Dahl, the BIA Social Services Worker. Furthermore, A.B. had his own attorney present and acting on his behalf at the September 23rd hearing. The Tribal Advocate and A.B.'s own attorney were clearly parties who had the right to appeal. The interests of the child were more than adequately protected in this case. For the court to order placement away from the tribal community, the Tribal Advocate must demonstrate, by clear and convincing evidence, that such placement is necessary for the protection of the child. See Kalispel Tribal Youth Code, Section 7-3.13, 7-3.11. This is an extremely high burden of proof. In reviewing the record, this court is convinced that the Trial Court Judge acted

1 NICS App. 33, In Re the Welfare of A.B. (November 1988) p. 36

responsibly and there was more than sufficient evidence in the record to demonstrate that the Tribal Advocate met that high burden of proof.

ACTIONS OF KICWAC

This court feels compelled to comment upon one very disturbing aspect of this case. After the trial court issued its ruling and ordered A.B to be placed with Alpine Boys Ranch, KICWAC prevented transport of A.B. and placed him with Laurie Andrews. This was in defiance of the court's order.

Such actions will not be tolerated. All of the Kalispel Tribe's resources should be used cooperatively for the benefit of its children. The Tribe recognizes that its "children are the Tribe's most important resource and their welfare is of utmost importance to the Tribe." Kalispel Tribal Youth Code, Section 7-1.03.

The Tribe's agencies should be working together in a cooperative manner to resolve the always difficult problems presented by minors in need of care. If KICWAC has a concern about placement it should air that concern in Tribal Court so that an informed decision can be made after considering all evidence and options. Placement decisions should not be made based upon politics and in defiance of the procedures which the Tribe adopted to protect its children.

It is hoped that KICWAC will act more responsibly in the future. If it does not, the Tribe should consider disbanding that committee.

CONCLUSION

This court concludes that Laurie Andrews does not have a right to appeal the Tribal Court's decision of September 23, 1988, since she was not a party to this action. This appeal is therefore dismissed, and the trial court's order of September 23, 1988 is affirmed and shall become immediately effective.

Pursuant to the Kalispel Tribal Youth Code, the trial court shall maintain continuing jurisdiction over this action, and the 90 day review ordered by the tribal court's order of September 23, 1988 will occur approximately 90 days after A.B. is placed in Alpine Boys Ranch. This case is therefore remanded to the Kalispel Tribal Court for further proceedings in accordance with this decision.