1 NICS App. 42, In Re the Welfare of H.T. and C.T. (February 1989)
IN THE LUMMI TRIBAL COURT OF APPEALS
LUMMI INDIAN RESERVATION
BELLINGHAM, WASHINGTON
In Re the Welfare of H.T. and C.T., Minor Indian Children
No. 88-JVDP-0775 (February 3, 1989)
SUMMARY
Although state and Canadian provincial courts claimed jurisdiction over an Indian child in a custody dispute, the Court of Appeals affirmed the trial court's retention of jurisdiction because the matter before it concerned a "minor in need of care" while on the reservation, rather than purely a custody dispute. Even if the matter was characterized as a custody dispute, not transferring jurisdiction to a state court was not error by the trial court, because the Indian Child Welfare Act has no mechanism providing for such transfer.
FULL TEXT
OPINION
This Matter came before the panel on the 21st day of November, 1988. For the reasons set forth herein, the appeal filed by Appellant herein is hereby denied and the trial court affirmed.
BACKGROUND
On September 2, 1988, Honorable Judge LaFountaine of the Lummi Tribal Court entered an order denying the motion for dismissal for lack of jurisdiction which had been filed by Appellant, briefed, and argued to the Court on August 1, 1988.
FACTS
On May 9, 1988, the jurisdiction of the Provincial Court of British Columbia at Prince Rupert was invoked by Suzanne L. Tomlin, seeking custody of H.T. and C.T., who are the minor children of Ms. Tomlin and Appellant. An interim order was entered ex parte in favor of her by that Court on May 11, 1988, granting temporary custody of the children to Suzanne L. Tomlin.
Subsequently, on June 6, 1988, a petition for dissolution of marriage was filed by appellant, Patrick Tomlin, with Suzanne Tomlin named as the respondent, in the State of Oregon, Hood River County. Two days later, the Oregon Court issued ex parte temporary orders which, among other things,
1 NICS App. 42, In Re the Welfare of H.T. and C.T. (February 1989) p. 43
granted custody of the children involved in these proceedings to Mr. Tomlin. Process for the Oregon action was served upon Suzanne Tomlin on June 14, 1988. The children were at that time still in the physical custody of Ms. Tomlin.
On July 14th, 1988, a petition was filed by Margaret Adams, the maternal grandmother on the Lummi Reservation, alleging that the children were dependent children under the Lummi Juvenile Code. An emergency temporary order was entered that same date placing the children under the temporary jurisdiction of the Lummi Tribal Court and restraining Appellant from removing them from the supervision of the Lummi Tribe.
On July 28, 1988, Suzanne Tomlin sought and was granted an ex parte temporary order of protection from the Whatcom County Superior Court. A hearing upon the temporary order was scheduled for August 11th.
Patrick Tomlin, through his counsel Dennis Hindman, filed a motion for dismissal in the Lummi Tribal Court and seeking transfer of jurisdiction to the state court in Oregon. A hearing on the motion was held on August 1, 1988 before Honorable Judge Frank LaFountaine of the Lummi Tribal Court. On September 2nd, Findings of Fact, Conclusions of Law, and an Order determining jurisdiction was presented by Rebel Harjo and signed by the Court. Neither Appellant nor his counsel were present.
On September 30, at the request of Counsel Hindman, a hearing was held at which he presented various objections to portions of the September 2 Order. Each of counsel's objections appears to have been routinely denied by Judge LaFountaine.
On October 3, 1988, a Notice of Appeal was filed by Mr. Hindman on behalf of Patrick Tomlin with the Lummi Tribal Court of Appeals appealing "the Court's failure to grant motions for dismissal for lack of jurisdiction."
Because, under the Lummi Trial Code, an appeal, in order to be perfected, must be filed within ten days of entry of the judgment or order appealed from, the first question which must be addressed is whether the appeal is timely.
I. TIMELINESS OF APPEAL
Under General Rule 1.8.03 of the Lummi Tribal Court Rules, a written Notice of Appeal must be filed with the trial court within ten (10) days from the entry of judgment. The judgment from which this appeal is taken was entered on September 2, 1988. The Notice of Appeal filed by the Respondent is dated September 30, 1988 and was filed with the trial court on October 3, 1988.
The issue that thus arises is whether this appeal was filed timely. In order to address this issue, it is appropriate to examine the events surrounding the entry of the judgment on September 2, 1988.
By letter dated August 9, 1988, the Appellant's attorney requested that a
1 NICS App. 42, In Re the Welfare of H.T. and C.T. (February 1989) p. 44
hearing be scheduled for argument of various motions filed by Mr. Tomlin's attorney, including a Motion to Reconsider the Court's Decision on Jurisdiction. That letter also indicated that Mr. Hindman would be in Southeast Asia from August 16, 1988 to September 1, 1988. The clear implication from that letter was that Mr. Hindman would be available on and after September 2, 1988.
On August 30, 1988, two letters were written after a telephone conversation between the parties. One letter was written by Mr. Burkitt, the Law Clerk for Mr. Hindman. That letter was addressed to the trial judge and indicated that Mr. Hindman was not expected to return until September 6, 1988. Mr. Burkitt was objecting to setting a hearing in this matter on September 2, 1988 and therefore requested a continuance to September 6, 1988.
The second August 30, 1988 letter was from the tribal prosecutor to Mr. Burkitt. The prosecutor in that letter indicated that she would appear on September 2, 1988 and request that the judge sign the proposed Findings of Fact, Conclusions of Law and Judgment which she had prepared. She indicated in that letter "Of course, Mr. Hindman will retain the right to move for amendment or addendum to the Order."
On September 2, the prosecutor did appear and the proposed Findings of Fact, Conclusions of Law and a Judgment prepared by the prosecutor were entered by the trial judge. However, the trial judge added a handwritten paragraph to the last page of that Order indicating that the court was reserving to Mr. Tomlin and his attorney the right to move for amendment or alteration of that Order.
The next hearing in this case occurred on September 30, 1988. At that time, both parties' attorneys appeared. A hearing was conducted concerning Mr. Tomlin's objections to the Findings of Fact, Conclusions of law, and Order which was entered on September 2, 1988. The Court also considered Mr. Tomlin's Motion to Reconsider its decision on jurisdiction during that September 30, 1988 hearing.
As a result of the September 30, 1988 hearing, minor changes were made to the Findings of Fact, Conclusions of Law and Order, and the Motion to Reconsider was denied.
The Notice of Appeal which was filed on October 3, 1988 indicates that the appeal is based upon ''The Court's failure to grant motions for dismissal for Lack of Jurisdiction." This would appear to relate to the original Motion to Dismiss for Lack of Jurisdiction which was filed on July 25, 1988, heard on August 1, 1988, and was the subject of the Findings of Fact, Conclusions of Law and Order discussed above. The particular motions relied upon by the Appellant in filing his Notice of Appeal are not specifically identified.
During the course of the September 30, 1988 hearing, Mr. Tomlin's attorney indicated that he did not receive a conformed copy of the Order entered on September 2, and had no knowledge of the remarks added by the Judge to the end
1 NICS App. 42, In Re the Welfare of H.T. and C.T. (February 1989) p. 45
of the Order until the September 30 hearing. It appears undisputed that the September 30 hearing was the first time that the Appellant's attorney had an opportunity to argue his objections to entry of that Order, and to request various changes be made in the Findings of Fact and Conclusions of Law. Those objections were heard and decided on September 30, 1988. Mr. Tomlin's Motion to Reconsider was also heard and orally decided on September 30. Since the Notice of Appeal was filed within 10 days thereafter, this Court deems the Notice of Appeal to be timely.
This panel having permitted the appeal to proceed, the issue of whether this case is properly within Lummi Tribal jurisdiction shall be addressed.
II. JURISDICTION
On behalf of Patrick Tomlin, in support of his arguments that the Lummi Tribal Court lacks jurisdiction, counsel has cited the case of In re Bertleson, 617 P.2d 121 (Mont. 1980). Bertleson, a Montana Supreme Court case involved an attack on state court jurisdiction in which it was successfully argued that a state court need not transfer jurisdiction to the Tribal Court over a proceeding which was more in the nature of a private custody dispute than a dependency or "foster or adoptive" proceeding of the type covered by the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq.
In that case, the court determined that, under the Indian Child Welfare Act, a consideration of other factors, besides mere presence of the child or the parties, was appropriate to a determination of which forum ought to exercise jurisdiction. In Bertleson, the Court found a dearth of other factors and found in favor of state jurisdiction, rather than opting to transfer the case to a Tribal Court.
Although the jurisdiction of the Lummi Tribal Court is not determined by reference to the Indian Child Welfare Act, but rather by the Lummi tribal codes which assert jurisdiction over any child within the reservation under the age of eighteen, see section 8.5.01, the panel does find Mr. Hindman's arguments somewhat persuasive that there should be more than mere transitory presence to invoke the authority of the Lummi Tribal Court in this children's case. In this case, however, there was more than mere presence and, because of these other factors, tribal jurisdiction is appropriate. These factors distinguish this case from Bertleson, which was more in the nature of a private custody dispute. There are factors present which lead the panel to conclude that the instant action is more in the nature of a dependency action, rather than a true private custody action.
Unlike a private custody action, here, the action was brought by and custody is sought by a third person other than either of the parents. Also, unlike a private civil custody case, the Lummi Tribe is the named party seeking to act in the child's best interests. In a dependency action, unlike a private civil custody case, it is the government, on behalf of a child, versus everyone else, rather than parent versus parent.
Although the panel is concerned with the timing of the filing of this action,
1 NICS App. 42, In Re the Welfare of H.T. and C.T. (February 1989) p. 46
it cannot at this time rule that this constitutes a true case of forum‑shopping, which involves invoking the jurisdiction of one particular court while intentionally not seeking to invoke other, perhaps more appropriate, forums. Ms. Adams and others did, prior to invoking Lummi Tribal Court processes, contact the children's tribe, which chose to decline taking any action. There also is information contained in the record from which it appears that the Kitsumkulum, the tribe to which the children's extended family belonged, declined jurisdiction. Because of these efforts, the Court cannot rule that there was forum‑shopping.
Although some of the facts upon which the children's dependent, or "Minor In Need Of Care," status is based occurred prior to their presence on the Lummi Reservation, that does not defeat jurisdiction. In a dependency action, the question is not "when the acts occurred," so much as "what is that status of the child while on the reservation," i.e., is that child a child in need of care. If that child is a child in need of care, that is a status which can follow the child onto the reservation even though the original acts which caused that status occurred elsewhere. In this case it was alleged by verified petition that the children had that status while on the Lummi Reservation. The panel cannot find that the Lummi Tribal Court committed error.
It is the conclusion of this panel that the Lummi Tribal Court has jurisdiction over this action because it is an action in which Indian children are alleged to be dependent children. It has the attributes of a dependency, rather than a custody action in that the party bringing the action is a person other than the parents, and this action involves the government ‑ the Lummi Tribe ‑ as a party versus all other parties, which is characteristic of dependency actions. The panel also cannot rule that there was error when the Court declined to transfer jurisdiction to the Oregon Court. There really is no mechanism for the Court to do so, as this panel views the Indian Child Welfare Act as a "one‑way" vehicle, intended to achieve transfer of cases from state to Tribal Courts, not vice versa.
For the foregoing reasons, the panel cannot conclude that there was reversible error committed by the trial court and the order appealed from is, therefore, affirmed and the action shall proceed.
III. OTHER CONSIDERATIONS
Finally, there are other matters which this panel notes. Although this Court of Appeals' ruling is that the Lummi Tribal Court has jurisdiction, the panel is only establishing that there is jurisdiction at this stage of the proceedings at which the issue was raised, i.e., that there is jurisdiction sufficient to enable the court to proceed to the next stage. No fact‑finding or adjudicatory trial has yet occurred. If, at such a hearing, the children are determined not to be dependent children, that, of course may result in dismissal of the action and thereby defeat or end the court's jurisdiction.
The parties should also be apprised of what this panel is not doing by ruling that this case may proceed to the next stage. By allowing the case to proceed, this
1 NICS App. 42, In Re the Welfare of H.T. and C.T. (February 1989) p. 47
Court of Appeals is not implicitly ruling that the Oregon Court may not proceed. This panel has no authority to enter such an order. Appellant Tomlin should be aware, however, that, should he choose to abandon the Lummi Tribal forum in favor of pursuing litigation in Oregon State, he may end up with an order which may be difficult to enforce upon the Lummi Reservation.
Additionally, appellant has expressed concern over his parental rights being potentially extinguished or terminated by the proceedings in the Lummi Tribal Court. The panel notes that this action is not one for termination of parental rights, and appellant should be so notified or reassured that termination would involve a separate matter with a full panoply of rights made available to appellant and according to the parties, this is not an action for termination of parental rights.
In closing, the panel also notes that, in the facts of this case there has been far too much action taken by all of the parties which appears to involve the obtaining of favorable ex parte orders to the detriment of other parties. Ex parte orders have been obtained from the British Columbia Provincial Court at Prince Rupert, from the Hood River County Court in Oregon, from the Lummi Tribal Court, and from the Superior Court of Whatcom County. Each order was sought and obtained ex parte after a prior, unfavorable ex parte order had been obtained by the other side from another court. That is to be discouraged, and this panel urges all of the parties to attempt to refrain from attempting to obtain ex parte orders without notice to the other side when such notice and opportunity to be heard can be easily given.
Decision affirmed.
A fact finding hearing shall be scheduled as soon as is possible.