1 NICS App. 92, In Re the Matter of: B.F.C. (March 1990)
IN THE NOOKSACK TRIBAL COURT OF APPEALS
NOOKSACK INDIAN RESERVATION
DEMING, WASHINGTON
In Re the Matter of: B.F.C., a minor child.
No. NOO-Ci-6/89-0154 (March 12, 1990)
SUMMARY
The respondent requested that a hearing on September 21 be continued to September 25. The request was granted but the respondent did not appear, and the petitioner attempted to move for another continuance. The trial court entered its decision on the merits of the case without hearing petitioner's motion. The Court of Appeals reversed the trial court's decision on the grounds that the petitioner had been denied due process in that he was not afforded an opportunity to be heard.
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Randall P. Tulee, Counsel for appellants; Dennis and Sherrie Celestine, appellants. |
DECISION AND ORDER
COOCHISE, Chief Justice:
This matter comes before the Nooksack Court of Appeals pursuant to Notice of Appeal filed October 4, 1989 by Dennis Celestine, father of minor child. Mr. Celestine appeals the September 25, 1989 oral order dismissing the petition by presiding Judge Emma Dulik. The dismissal was on grounds of lack of jurisdiction and comity.
BACKGROUND
A hearing on the petition was set for September 21, 1989, but the Respondent, Sharon Celestine, called to say they would not be able to make it but could make it on September 25, 1989. The Appellant/Petitioner opposed the change in date because his counsel could not make the hearing if changed, due to the short notice.
The Petitioner appeared without his counsel on September 25, 1989 to make a Motion to Continue and the Respondents did not appear after the hearing date had been changed on their request.
1 NICS App. 92, In Re the Matter of: B.F.C. (March 1990) p. 93
The Court made its decision before the Petitioner was able to or given the opportunity to argue his Motion to Continue.
ISSUE ON APPEAL
Whether the trial court erred in dismissing the petition without entertaining arguments in support of the Petitioner's Motion to Continue the hearing.
The Appellant/Petitioner stated several reasons for filing this appeal and they are as follows:
"I am appealing ... the court's decision: that the September 25, 1989 was not a scheduled court date but for the purpose of going on record as requesting a continuance ... Instead of entertaining the motion to continue the court dismissed the petition ...
1. That the Court erroneously dismissed the petition on Jurisdiction grounds. Under the Nooksack Tribal Law and Order Code, this Court has jurisdiction over Nooksack children, regardless of domicile, see Section 15.03.010 (2) wherein domicile is irrelevant.
2. That comity does not play a part in jurisdiction for two reasons: a) that the Plaintiff has alleged and will allege at trial that he has been trying for at least a year to set up a hearing and can't even get a court date let alone a hearing on the merits. Nooksack was a court of last resort.
3. That the respondents were given every opportunity to appear; and continuances were granted allowing for the respondents to appear. When the respondents finally had the money to appear they did not show up; even after the plaintiff agreed to pay costs of the respondent staying in the Nooksack area for the hearing ... "
The Nooksack Ordinance regarding appeals is as follows:
80.03 WHAT COURT DECISIONS MAY BE REVIEWED
80.03.010 Appeal from Final Orders: An aggrieved party who claims, in good faith, that the Nooksack Tribal Court made an error of law or procedure which affected the outcome of the case may seek review in the Court of Appeals of any final order, commitment, or judgment of the Nooksack Tribal Court. The Nooksack Tribe may not appeal a final judgment of acquittal in criminal cases.
DISCUSSION
The hearing on the petition was scheduled for September 21, 1989 and the
1 NICS App. 92, In Re the Matter of: B.F.C. (March 1990) p. 94
Respondents called the court and advised they could not make the scheduled hearing date, but could make a hearing date if scheduled for September 25, 1989.
The Petitioner/Appellant opposed the change in hearing date from September 21, 1989 to September 25, 1989 because his counsel would not be able to make the hearing date on such short notice. The Petitioner/Appellant, however, did appear without his counsel on September 25, 1989 to make a Motion to Continue the hearing until his counsel could be present.
The Court went into session and made a determination on the petition, with the Petitioner present, but he was not afforded an opportunity to argue on his Motion to Continue. He never had the opportunity to make any comments on his Motion to Continue, i.e., the merits of the Motion to Continue were not heard or he was not afforded the opportunity to be heard.
This is a due process question wherein the Petitioner was not afforded the opportunity to present his request prior to dismissal on other grounds and the petitioner should have at least been given the opportunity to state his request and present his arguments to the Court before a determination was made.
ORDER
The dismissal of the petition is Reversed.
This matter is remanded back to the trial court to afford the Appellant/ Petitioner the opportunity to argue his Motion to Continue and allow the parties to argue the merits on the motion prior to any determination on the petition.
Because of the court's decision on one issue the other issues raised on appeal need not be addressed.
DATED this 12th day of March, 1990.