IN RE THE WELFARE OF J.P. AND B.C.-M.

20 NICS App. 19, IN RE THE WELFARE OF J.P. AND B.C.-M. (October 2022)

IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS

MUCKLESHOOT INDIAN RESERVATION

AUBURN, WASHINGTON

In re the welfare of J.P. and B.C.-M.

A.C.-M., Mother/Appellant and J.P., Youth/Appellant,

Muckleshoot Child and Family Services (MCFS), Respondent/Appellee.

NO. MUC-AP-07/22-120 (October 3, 2022)

SYLLABUS*

Trial court temporarily suspended in-person visits between mother and youth due to mother testing positive for fentanyl use. Appellants argued trial court made procedural error and violated their due process right to present arguments and statements. Court of Appeals defers decision making about terms of visitation to trial court as trial court knows the totality of the circumstances. Court of Appeals affirmed the trial court’s ruling as it found trial court did not commit any error or abuse its discretion.

Before:	Thomas Weathers, Chief Judge; Ric Kilmer, Associate Judge; Lisa M. Vanderford-Anderson, Associate Judge.
Appearances:	Stacey Lara, for Appellant Mother and Josh Williams, for Appellant Youth; Matthew Covello, for Appellee MCFS.

OPINION

Kilmer, J:

This matter comes before the Muckleshoot Court of Appeals pursuant to the Notice of Appeal filed July 1, 2022, by Appellants, J. P, one of the two youths, and A. C.-M., the children's

20 NICS App. 19, IN RE THE WELFARE OF J.P. AND B.C.-M. (October 2022) p. 20

mother, of the Muckleshoot Tribal Court’s Amended Order on Oral Arguments re Mother’s Objection to Visitation Change entered June 28, 2022. (The underlying cause numbers for the two youths are MUC-J-02/10-024 and MUC-J-03/19-034. However, this appeal concerns only J. P., cause #024.) The Notice of Appeal was timely filed and served, contains the requirements of Muckleshoot Tribal Code (“MTC”) 3.02.060(b), and thus is properly before this Court. We AFFIRM.

SUMMARY OF PROCEEDINGS

J. P. has been adjudged “a youth in need of care” and is under the jurisdiction of the Muckleshoot Tribal Court (“Tribal Court”). The Muckleshoot Child and Family Services (“MCFS”) is responsible for monitoring the case. Per an earlier April 13, 2022 order, MCFS is authorized, based upon the circumstances, to change J. P.’s placement or court-ordered visitation, but must provide notice to the Court and the parties pursuant to MTC 12A.03.140.

Based upon the mother’s then-recent positive test for fentanyl use, MCFS moved the Court to temporarily suspend in-person visits between the mother and child. After notice and a hearing, the Tribal Court temporarily suspended in-person visits, but did allow visits via video (Zoom). The Court indicated that in-person visits would resume once the mother had quit fentanyl use, and set a review hearing on this after a few months. (A change of placement also occurred, to which the youth objected, but that issue is not before this Court.)

Appellants have appealed that Order to this Court. They argue, in essence, that the Tribal Court made a mistake in procedure when it made its decision, sua sponte, based “solely on a novel issue and personal opinion,” before hearing from the parties or addressing any of the briefed issues, “thereby depriving them of their due process right to ‘present arguments and statements.’” Appellants’ Opening Brief, p. 4, citing MTC 12A.01.100(5)(Rights of Parties). Appellants also argue that the Tribal Court’s order was not based upon the evidence or “best practices.” They ask this Court of Appeals to reverse the Tribal Court’s order temporarily suspending in-person visits. In the alternative, according to their brief, p. 2, they ask that the matter be remanded for the lower Court to “create a complete record, specifically identifying the evidence and sources relied on its decision to suspend in-person visitation.”

STANDARD OF REVIEW

As the parties correctly note in their respective briefs, the Muckleshoot Tribal Code does not provide an explicit standard of review for the Court of Appeals to use when reviewing a Tribal Court order.

MTC 3.02.070, entitled Decisional Authority, provides at subsection (a) that “decisions on matters of both substance and procedure” shall be based on a specified order of precedent, from the Constitution and Bylaws, MTC, Resolutions, customs, traditions and culture, laws and cases of other jurisdictions (as guidance only, so long as they do not conflict with the spirit or the letter of Muckleshoot law), and the common law.

20 NICS App. 19, IN RE THE WELFARE OF J.P. AND B.C.-M. (October 2022) p. 21

Both parties have cited in their respective briefs specific Muckleshoot Tribal Code sections as well as case law of other Tribes in support of their arguments.

DISCUSSION

We note at the outset that, for any case before us, the Court of Appeals gives great deference to the Tribal Court’s findings, decisions and orders. The Tribal Court knows the intimate history and details of the case, and is in the best position to observe the parties’ and witnesses’ credibility. It knows the “totality of the circumstances.” We will not substitute our judgment for that of the Tribal Court’s judgment.

The parties have argued that we should adopt the “clearly erroneous” standard of review. That is, we should not accept any finding of fact that is “without adequate evidentiary support or is induced by an erroneous view of the law.” Appellee’s Brief, p. 4, citing Hoopa Valley Tribal Council v. Duane Sherman Sr., 7 NICS App. 9, 11 (Hoopa Valley Tribal Ct. App. 2005), citing Duenas v. Puyallup Tribe, 1 NICS App. 71,72 (Puyallup Tribal Ct. App. 1990).

“In the absence of any specified standard of review, we review issues of fact under the ‘clearly erroneous’ standard and issues of law de novo.” Appellants’ Brief, p. 3, citing In the Guardianship of Three Minors, 10 NICS App. 29, 32 (Muckleshoot Tribal Ct. App. 2011).

We find, under this “clearly erroneous” standard, that the Tribal Court committed no obvious or clear error in reaching its decision to temporarily suspend in-person visits. The Court conducted a hearing and allowed the parties to be heard, and otherwise substantially met the requirements of MTC 12A.03.140 (“Unanticipated Change in Placement or Visitation”). There was no violation of due process.

However, we conclude that the proper standard of review in this particular case is the “abuse of discretion” standard. We find that a Tribal Court has wide and broad discretion in setting the terms of visitation. As we stated above, the Tribal Court knows the intimate history and details of the case, is able the observe the witnesses’ credibility, and is in the best position to determine what is in the best interests of the youth. We will not substitute our judgment for that of the Tribal Court’s judgment.

Matters of discretion are those not governed by statute. In the Matter of E. M., 9 NICS App. 1, 6 (Hoopa Valley Tribal Ct. App. 2009). “The abuse of discretion standard is highly deferential to the lower court.” Id.

“While courts have defined ‘abuse of discretion’ in a number of ways, there is broad agreement that a court abuses its discretion when it acts unreasonably or exercises unsound judgment in the exercise of its discretion.” Id., citing Hoopa Valley Tribal Court v. Taylor, 7 NICS App. 3, 5 (Hoopa Valley Tribal Ct. App. 2005) and In the Membership of Julie Bill Meza et al., 7

20 NICS App. 19, IN RE THE WELFARE OF J.P. AND B.C.-M. (October 2022) p. 22

NICS App. 111, 114 (Sauk-Suiattle Tribal Ct. App. 2006). See also, In the Welfare of Five Indian Minors, 9 NICS App. 61, 69 (Puyallup Tribal Ct. App. 2010).

“An abuse of discretion does not exist if the findings of the judge are supported by substantial evidence.” Parks v. Taylor, 16 NICS App. 1, 3 (Tulalip Tribal Ct. App. 2018)(cited cases omitted).

Although MTC 12A.03.140 (“Unanticipated Change in Placement or Visitation”) is a specific statute that pertains to visitation, all it says at subsection (e) is: “At the hearing, the Court shall consider the objections raised, and may approve, deny, or modify the change.” The Court is accorded broad discretion.

We also find that, looking at the Youth Code (MTC Title 12) as a whole, the Muckleshoot Tribal Court is accorded broad discretion in protecting a youth in its care and, in particular, dictating the terms of visitation. See, in particular, MTC 12.01.030(a) and MTC 12A.01.010. We also note that, per MTC 12A.01.120(c), the standard of proof the Tribal Court must meet when determining visits or changes in visits, is the preponderance of the evidence.

We find that the Tribal Court had sufficient evidence before it to temporarily suspend in-person visits. After a much helpful discussion about policies in the MTC, and guidance from other Tribes’ and the State of Washington’s laws, Appellants have tried to narrow the issue and our focus to the judge’s comments about kids knowing when their parents are using drugs. But that is not the issue; the Tribal Court must look at the totality of the circumstances. And it, not the Court of Appeals, is in the best position to take in everything it knows about the case. The positive drug tests may be enough to discontinue in-person visits, regardless of what J. P. knew or didn't know about the mother’s use. The parties do not dispute that the mother has tested positive for fentanyl use, although she says there has never been an allegation that she has been “under the influence” during any in-person visit. June 12 Trial Court Transcript, pp. 30 and 33.

Again, the Tribal Court, not us, knowing the totality of the circumstances, is in the best position to take all it knows into account when exercising its broad discretion in dictating the terms of visits between the mother and child.

Finally, we note that the Court-ordered suspension of in-person visits is not permanent. The Court scheduled a review hearing for only a few months later to see if the suspension should be lifted or continued—thereby giving the Appellants another opportunity to argue their case.

CONCLUSION AND ORDER

We conclude that the Tribal Court did not commit any error, nor did it abuse its discretion when it temporarily suspended in-person visits between the mother and youth.

Therefore, the June 28, 2022 Amended Order on Oral Arguments re Mother’s Objection to Visitation Change 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.