2 NICS App. 196, In Re the Welfare of V.J. (November 1992)

IN THE LUMMI TRIBAL COURT OF APPEALS

LUMMI INDIAN RESERVATION

BELLINGHAM, WASHINGTON

In Re the Welfare of V.J., ^* an Indian Child.

No. 87-J-0725 (November 25, 1992)

SUMMARY

V.J. was the child of unmarried teenage parents, neither of whom were able to care for him. He was born with many physical problems requiring special medical attention. Shortly after his birth on May 25, 1986, V.J. was placed by Lummi Children's Services in foster care with Robert and Joanne Jones, a non-Indian couple living near the Lummi Reservation. V.J.'s mother, Lummi Indian Nation member Janet Jefferson, approved of the placement and visited V.J. regularly at the Jones' home. When V.J. was three, Mr. and Ms. Jones moved to Renton. Despite the move, Lummi Children's Services, with Ms. Jefferson's approval, chose to continue foster care placement in the Jones' home.

After the move to Renton, Ms. Jefferson's visits with V.J. became infrequent and ceased altogether for a two-and-one-half-year period. During this time Lummi Children's Services also ceased making home visits to monitor the placement. As a result, Mr. and Ms. Jones' parenting relationship with V.J. evolved into one which functioned as if it were permanent. However, at a July 25, 1991, dependency hearing Lummi Children's Services presented a plan to reunite V.J. with his mother. Mr. and Ms. Jones attempted to intervene as parties to the proceedings and filed a Petition for Guardianship or Adoption. Ruling that Mr. and Ms. Jones lacked standing to file their Petition, the Tribal Court approved the Lummi Children's Services plan. Mr. and Ms. Jones then appealed.

The main issue before the Tribal Court of Appeals was whether foster care parents should have standing at a dependency hearing involving their foster child. Additional issues were raised in a motion by the Lummi Nation seeking to recuse the appellate panel on grounds that two of its members were non-Indian. The panel denied this motion, ruling that while the Nation has the right to establish racial qualifications for its justices, it cannot disqualify justices on the basis of race once they have been approved and the hearing process has begun.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 197

In regard to the main issue, the appellate panel ruled in favor of the Nation, affirming the trial court's decision to deny Mr. and Ms. Jones standing to intervene. However, the justices did not rule out the possibility of granting foster parents standing in the future. And they affirmed the right of any foster parent to testify as a witnesses in a dependency proceeding. As Justice Hostnik observed in his concurring opinion, "Foster parents are a valuable source of information which should be taken into account [by the court] in determining what is in the best interest of the child."

FULL TEXT

Before:	Chief Justice Rosemary Irvin, Associate Justice Elizabeth Fry, and Associate Justice Charles R. Hostnik.
Appearances:	Attorney Samuel J. Stiltner of Stiltner, Sinclair, Clement and Foster for Robert and Joanne Jones; attorney Richard A. Baum for Janet Jefferson; attorney Iris Shue for the Lummi Indian Nation; guardian ad litem Lorraine Brave for V.J.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

IRVIN, Chief Justice:

I. ISSUE ON APPEAL

At issue is whether foster care parents should have standing at a dependency hearing involving their foster child of five years who has been residing with them since leaving the hospital where he was born.

II. PROCEDURAL BACKGROUND

On June 25, 1991, appellants Robert E. and Joanne M. Jones, the foster parents of the minor child, V.J., attempted to file a Petition for Intervention and Guardianship or Adoption, and Other Relief, with the Lummi Tribal Court. The Petition was filed during a dependency hearing concerning V.J.'s future placement. The trial judge denied standing to the appellants, entered an order transferring physical custody to the Lummi Indian birth mother, and set an increased visitation schedule to accomplish the transfer by August 1, 1991.

Mr. and Ms. Jones filed this appeal challenging the denial of standing by the lower court. The three justices named herein were approved by the Lummi Business Council to sit as the appellate panel for the appeal. The appellants were granted standing before the appellate court to raise the issue of whether they, as foster parents, have standing as parties in a dependency proceeding involving their foster child.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 198

A hearing date and briefing schedule were set. Preliminary orders were entered without a hearing (1) waiving the posting of a bond on appeal, (2) appointing a guardian ad litem for V.J., and (3) reinstating visitation as it had occurred prior to the trial court's June 25, 1991, order.

This court was notified the day before the scheduled August 29, 1991, appellate hearing that the Nation was going move to recuse the appellate panel. The Motion to Recuse and the prehearing motions were heard on August 29, 1991. Ruling on the Motion to Recuse was postponed until September 12, on which date the appellate panel ruled unanimously to deny the Motion. The reasons for that decision are stated herein. This court heard the appeal on October 7, 1991, and scheduled the remainder of the case for November 18, 1991.

Prior to the November 18th hearing, the Nation passed Resolution #91-116. The Resolution added the following provisions to the Lummi Tribal Juvenile Code:

The parties in a child dependency case shall be the child, the natural parents, and the Tribe. No other person shall intervene or be granted the status of a party in such proceeding. Where parental rights have been relinquished or terminated, as provided in Chapter 8.7, the Court, in its discretion, may allow intervention or participation by such persons who in the Court's judgment have an appropriate interest in the child's welfare.

The Resolution was passed by the Lummi Business Council on November 5, 1991 and was received by the members of the appellate panel on or about November 15, 1991, along with a letter from the Nation's counsel, Harry Johnson, stating he believed the Resolution made the appeal moot. In a separate opinion, the appellate panel ruled that the Resolution did not make the appeal moot, and could only be applied prospectively.

At the end of closing arguments on November 18, 1991, the Nation renewed its previous motion to dismiss the action. The motion was granted. However, the issue as to what status foster parents have in dependency proceedings was reserved by the appellate court.

The Nation objected to any further proceedings after their Motion to Dismiss had been granted. The court requested a panel of tribal elders to meet with the appellate court to discuss any tribal traditions which should be considered in defining the role of the foster parents upon remand to the trial court. The court clerk, a Lummi tribal member, was directed to invite elders who were well-respected in the Tribal community to discuss the matter. The panel of elders met with the appellate court, the parties and their attorneys on December 16, 1991. It should be noted that Lummi Children's Services was represented by the Nation's attorney, Harry Johnson, and that elders who worked for Lummi Children Services were not invited to be on the panel, due to the possibility of bias. Nevertheless, one of the elders employed by Lummi Children's Services and Valerie Day, the Lummi Children's Services

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 199

caseworker for V.J., came to the meeting and, without being recognized by the presiding justice, impassionedly spoke and misrepresented the case to the elders in an attempt to influence their responses, their attitudes toward the court, and the ultimate outcome of the case.

Subsequent to the elders' panel, the foster care parents filed a motion for the appointment of independent counsel for the minor child. Argument on this motion was heard by conference call on May 5, 1992. The court ordered the appellate guardian ad litem removed and an attorney appointed to represent the child.

III. FACTS

V.J. was born on May 25, 1986. He was the second born of twins and was born with many physical problems requiring special medical attention. Neither the sixteen-year-old mother, Janet Jefferson, nor the fifteen-year-old father, Simon James, were able to care for both their newborn sons. With the mother's consent, Lummi Children's Services placed V.J. with the Joneses, a non-Indian foster home near the Lummi Reservation. Janet Jefferson visited V.J. fairly regularly. Robert and Joanne Jones spent considerable time attending to V.J.'s special needs. When V.J. was three, the Joneses moved to Renton. At that time Lummi Children's Services considered placing V.J. in another home. The agency chose to continue placement with Robert and Joanne Jones and recommended this to Janet Jefferson, who agreed.

After the Joneses moved to Renton, Ms. Jefferson's visits with her son were greatly reduced and ceased altogether for a two-and-one-half-year period prior to March, 1991. Lummi Children's Services also failed to monitor the placement during this time. This directly caused the placement to evolve into one which functioned as if it were permanent.

The November 28, 1990, Report to the Court by Lummi Children's Services described the placement situation as follows:

The foster mother, Joann Jones [sic], explained that she had never expected this placement to last as long as it has and that it has just evolved to the state it currently is in. Because of the administrative problems at LCS [Lummi Children's Services], this foster family had been neglected by the agency and has performed extremely well on its own.

In the opinion of the caseworker this family has provided V.J. with an excellent home. The foster mother has expressed the hope that they might be allowed to adopt this child as he has bonded with them and they with him.

This foster home has provided V.J. with the care, love and material things necessary for his well being. The only thing they have not provided for is the recognition of his Lummi heritage.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 200

Mrs. Jones has expressed the desire to provide that, now that V.J.'s medical problems have improved so that contact with large numbers of people is not dangerous to his health.

The agency concluded by making the following recommendations to the Tribal Court:

Because the bond between V.J. and his foster family has become so strong, it [is] necessary that a plan for a permanent resolution to this case be made, therefore, the following is recommended:

During the dependency hearing on June 25, 1991, Lummi Children's Services presented a plan to reunite V.J. with his mother. No guardian ad litem was appointed for the child. From March, 1991, through June, 1991, the mother had visited with the child twice a month. According to the June 25, 1991, plan, the transition of V.J. back to his birth mother was to occur within thirty-six days, by August 1, 1991. The plan proposed on June 25, 1991, was approved by the trial court and the transitional visitation period began. The appellants sought to intervene as parties to the proceedings and filed a Petition for Guardianship or Adoption, or other Relief. As noted above, the trial court refused the Petition and Robert and Joanne Jones filed this appeal.

IV. MOTION TO RECUSE THE APPELLATE PANEL

The first hearing on the appeal was scheduled for August 29, 1991. The afternoon before the hearing, a cryptic message was received by the appellate court clerk at the Northwest Intertribal Court System. The message originated from the Juvenile Presenting Officer at the Lummi Nation, and was transmitted on to the appellate justices. The memo stated:

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 201

This is to confirm our earlier conversation today, whereby I informed you of my intent to submit an affadavit [sic] of prejudice in re the appellate panel on the James case. This affadavit [sic] was not filed earlier because I had been told that the panel, at least judges Irvin and Hostnik, would be removed. Today I was informed that after discussions between the tribe and Mr. Coochise [Administrator of the Northwest Intertribal Court System], the tribe was withdrawing its request due to the implications of unfairness which might arise from a request without a substantive basis. It is my understanding that for all future cases, the tribe most definitely will want non-Indian [sic] judges where Lummi children are involved directly. In the meantime, I will be submitting the affadavit [sic] because the tribe believes sufficient grounds exist for it. Thank you very much. The affadavit [sic] will be there as soon as possible.

The morning of the hearing, a document entitled "Respondent's Affidavit of Prejudice" was submitted to this court.

Usually an Affidavit of Prejudice would be considered by the Tribal Court of Appeals without argument. But, given the nature of the allegations included in the Affidavit, the importance of children's cases to the tribal community, and the political posturing in the case, this court gave the parties an opportunity to argue the Affidavit of Prejudice, treating it as a Motion for Recusal.

It was the unanimous decision of the appellate panel, after collectively considering all of the allegations, that none of the allegations had merit.

A. Outline of Allegations by the Nation

In brief, the Nation alleged (1) that the birth mother had not received notice of the appeal and that neither the guardian ad litem nor the mother had received notice of a motion brought by the appellants, and (2) that prehearing orders waiving a bond on appeal, appointing a guardian ad litem as agreed to by the parties, and staying the execution of the June 25, 1991, order, particularly the visitation portions, were entered without the input of the Nation. The Nation also alleged that the Court of Appeals was "making accommodations for the appellants, who are not even a party, at least at this stage of the proceedings." The statement that the appellants were "nonparties" appeared more than once in the Nation's allegations.

The conduct by the Nation in filing the Motion for Recusal, and the nature of the allegations contained therein, made it apparent that this case was highly political and that the Nation would exert political pressure on this tribunal to insure the outcome it wished. This was definitely not a case where the tribal government took a "hands-off” approach to the Judiciary.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 202

B. Status of Appellants as Parties to This Appeal

First, contrary to the Nation's allegations, appellants Robert and Joanne Jones were at all times parties to this appeal. In their Notice of Appeal, Mr. and Ms. Jones contended that they had improperly been denied party status by the trial court. While the appellants were not parties to the lower court action, they were parties to this appeal, allowing them to raise the standing issue.

C. Notice of Appeal

Secondly, as to the allegation that the birth mother had not received notice of the appeal, this was a purely paper allegation. While the allegation was technically true, there was, in fact, no prejudice to the birth mother's rights. The newly-hired court clerk had received no training from the Nation regarding her duties and, while highly competent, did not know that formal notice should be served on the birth parents. Valerie Day, the Lummi Children's Services caseworker for the child, had indicated to the court clerk that she was in contact with the mother, that she was trying to secure an attorney to represent the mother in the proceedings, and that the mother knew what was going on. The court clerk thus had every reason to believe that V.J.'s mother, Janet Jefferson, was not only aware of the proceedings, but that she was being assisted to actively participate.

It is not the duty of justices to train court personnel on routine matters; it is the duty of the Lummi Nation. The birth mother, represented by counsel, was at the first hearing, and requested a continuance in the action. The continuance was granted. None of this demonstrates prejudice on the part of the Court of Appeals.

D. Entry of Preliminary Orders

The Nation complained that the Court of Appeals waived the appellate bond, appointed a guardian ad litem, and reset visitation without the Nation's input. As this case is a dependency action, the appellate court initially believed it could and should be adjudicated expeditiously. The preliminary orders complained of by the Nation were entered on the court's own motion, without argument, after a motion had been received from the appellant's counsel requesting (a) the setting of the appellate bond at $250, (b) the appointment of a guardian ad litem (with costs taxed to the appellants if necessary), (c) access to the court file, and (d) a clarification of the June 25, 1991, order. In response to the appellants' motion the court issued a partial stay of the trial court's order of June 25, 1991, waived the posting of a bond, and notified both parties of its intention to appoint a guardian ad litem. The appellants' Motion for Access to the Court File was denied. The court entered the orders on its own motion.

Upon initial review of this case, the Court of Appeals recognized the need for a guardian ad litem. Unfortunately, there were no monies to pay for one and no Lummi Code provision requiring the appointment of one in

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 203

dependency proceedings. When the appellants moved this court for the appointment of guardian ad litem, they also offered to have the costs taxed to them. We thereupon appointed a guardian ad litem, to be agreed upon by all parties, and taxed the costs to the appellants. The guardian ad litem was never advised by the Court of Appeals as to the source of her payment.

E. The Appellate Bond

The tribal code provision addressing the posting of an appellate bond is section 1.8.03 of the Lummi Reservation Court General Rules. The provision states:

Within ten days from the entry of judgment, the aggrieved party may file with the trial court written notice of appeal, and upon giving proper assurance to the court, through the posting of a bond or any other way that will satisfy the judgment if affirmed, shall have the right to appeal, provided the case to be appealed meets the requirements herein established or by Rules of Court.

A bond on appeal is generally required to insure against waste of an asset which is the object of the appeal, or to guarantee payment of a judgment, or to insure the appeal is not specious. The appellate provisions of the General Rules generally apply to criminal and civil matters; appeals of child dependency matters do not easily fit within these categories. The posting of a bond in this case, where the subject of the action is a child, is superfluous. A failure by the appellants to hand over the child, given an adverse decision on appeal, would have subjected them to contempt of court and severe penalties. The history of the foster placement and the willingness of the appellants to have costs of a guardian ad litem taxed to them are evidence of the good faith of this appeal.

F. Stay of Trial Court Order

Under Section 1.8.04 of the General Rules, the filing of a perfected appeal stays the execution of the order being appealed. That provision states:

In any case where a party has perfected his right of appeal as established herein or by Rules of Court, a stay of execution of judgment shall be granted and the sentence shall not be carried out unless affirmed by the Court of Appeals [emphasis added].

At the June 25, 1991, hearing the trial court denied the appellants standing to intervene. The court went on to order a schedule of increased visitation for the purpose of helping the child, V.J., make the transition back to his birth mother by August 1, 1991. Lummi Children's Services filed information with the Court of Appeals that indicated the frequency of visitation was twice per month prior to the entry of the June 25, 1991, order. In order to maintain the status quo pending review on appeal, this court entered a Stay of the trial court's order and reinstated the visitation schedule

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 204

in effect prior to the Order of June 25, 1991. All matters necessary to the carrying out of the June 25, 1991, order were stayed by the filing of the appeal.

The Nation alleged that the Court of Appeals, in staying the trial court's order, did not take into consideration visitations which occurred after the June 25, 1991, hearing and order, and that the court's failure to do so showed bias against the Nation. This court will not adjudicate issues which are the basis of the appeal before there has been a full appellate hearing. Furthermore, only one month of increased visitation had occurred prior to our stay of the lower court order.

G. Timing of Affidavit of Prejudice

In its affidavit, the Nation states the following:

Respondent's affidavit of prejudice is submitted on this date, August 28, because Respondent's attorney had been informed by the tribal chairman, Henry Cagey, that a new panel composed of Native Americans would be appointed. However, on August 27, 1991, Respondent's attorney was informed by the tribal chairman, Henry Cagey, that he had spoken again with the NICS administrator, Elbridge Coochise, wherein it was decided that asking for a new panel without substantive basis given would have the appearance of unfairness, so the tribe withdrew its request.

The Nation had been fully advised of, and approved, the two non-Indian justices appointed to the appellate panel. The history of both this case and In Re Baby Boy Galicia, Lummi Appellate Court No. 90-JVDP-0875 (1991), 19 Indian L. Rep. 6013 (1992), indicates that Indian and non-Indian justices alike have made the same judgments concerning neglect by Lummi Children's Services of the Indian children in its custody. While the Nation has the right to establish qualifications for its justices, it cannot initially approve justices and then, after the hearing process has begun, disqualify them on the basis of race without any showing of actual bias.

The principal issue all three justices had to individually consider was whether, while not prejudiced before the Motion for Recusal was brought, they were so biased after hearing the Nation's allegations that they could not fairly judge the case.¹ We concluded (1) that any appellate panel that handled the case without summarily dismissing the appeal would have been subjected to a similar attack, (2) that considerable time had already been expended on the appeal, (3) that justice would be served by proceeding, and (4) that each justice could, upon self-examination, adjudicate the case fairly. The Motion for Recusal was denied.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 205

V. APPELLATE PROCEDURES AND MOTION TO DISMISS

The initial position taken by the Nation was that the appellants had no standing before the Court of Appeals. Numerous times during the proceeding the Nation moved for dismissal of the action.

The Lummi Nation's Rules of Court regarding post-trial procedure provide the following rule for appeals:

4.8.02 Appeals Any persons aggrieved [sic] by the verdict of the jury or the judgment of the Court shall have the right to appeal such decision as provided in Title 1, Chapter 1.8 of this Code.

In addition, the Appellate Proceedings provisions of the General Rules provide the following:

1.8.02 Limitations There may be established by Rule of Court the limitations, if any, to be placed upon the right of appeal, as to the type of cases which may be appealed, as to the grounds of appeal, and as to the manner in which appeals may be granted, according to the needs of the jurisdiction.

1.8.03 Notice of Appeal Within ten days from the entry of judgment, the aggrieved party may file with the trial court written notice of appeal, and upon giving proper assurance to the court, through the posting of a bond or any other way that will satisfy the judgment if affirmed, shall have the right to appeal, provided the case to be appealed meets the requirements herein established or by Rules of Court.

1.8.05 Appellate Trial Within forty-five days from the date of written notice of appeal, the appellate court shall convene unless delay is warranted by good cause, to hear the case on appeal at such place as may be designated. A new trial shall be held and court procedures shall be the same as in other cases before the Reservation Court except that there shall be no right to trial by jury.

There is no court rule in Lummi appellate procedures which limits the appellant's right to an appeal on the issue of standing. Absent such a rule, the rules quoted above mandate an appeal if the appellant has satisfied the requirements to perfect the appeal, which the present appellants have done.

This court had the discretion to establish a rule of court which would have prohibited the appellant from having standing in the appellate court, given the denial in trial court, but there were no facts or law to justify such a rule. It is tribal tradition to allow anyone who has something to say about an issue at hand to speak before a tribal tribunal. The position advocated by the Nation is that foster care parents have no standing in juvenile matters. The Nation's position is based on the Indian Child Welfare Act and alleged tribal

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 206

trial court practices which have not been codified and which have not been established as rules of court.

The customary practice of a trial court would be to deny standing to foster parents, given the role they generally play in providing what is supposed to be a temporary home for a foster child. Allowing standing to foster parents in dependency matters would thrust them into an adversarial role which could directly compete with and contradict their foster care function. The Indian Child Welfare Act provides further impetus for this position as its purpose is to prevent the destruction of Indian families. However, when the foster care placement takes on the characteristics of a permanent placement, it can be expected that the foster parents' role will also change and that they will become advocates for the child they have begun to feel is their own.

Given the nature of the strong and long-recognized tribal tradition of access to a tribal tribunal, this court considered it an open question as to what rights, if any, foster care parents should have at dependency hearings. General Rule 1.8.05, which requires that "a new trial shall be held" on appeal, also raised questions about what rights the appellants should be afforded on appeal and what procedures should be followed. The Court of Appeals ruled that the appellants had standing to appeal and that limited live testimony would be admitted from both parties. Motions to dismiss made by the Nation subsequent to this ruling were characterized as motions made during the "new trial" on appeal.

VI. IN RE GALICIA

Many references have been made in the course of these proceedings to In re Galicia, 19 Indian L. Rep. 6013 (1992). Galicia was an earlier Lummi case in which preadoptive foster parents sought standing to participate in their foster child's dependency hearing. The case was settled by the parties through a stipulation and agreed order.

In Galicia, the Nation made a preadoptive placement of a Lummi child with a Swinomish family. The birth family had clearly expressed its intention to relinquish the child; when the baby was born they left him at the hospital and notified the Nation that he should be picked up. Later, during the formal relinquishment hearing, the tribal judge ordered that the extended family of the child be found. This order gave rise to a contest for placement between the newly-discovered relatives of the birth mother and the preadoptive parents.

The Galicia case differs factually from the present case in the following ways:

(1) In Galicia, the Lummi Nation had indicated that the placement was a preadoptive placement, not just a foster care arrangement.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 207

(2) The birth parents in Galicia had indicated by actions and words that they wished to give the child up for adoption. In fact, the birth parents left the newborn infant at the hospital and called Lummi Children's Services to ask them to pick up the child – an act tantamount to abandonment.

(3) The extended family members in Galicia had never been in contact with the birth parents prior to the tribal judge's order that they be located. In fact, the birth mother didn't even know who these relatives were.

(4) The preadoptive placement in Galicia was with a Swinomish family, and the preadoptive father was a respected member of the Swinomish tribal community. The placement was nurturing and there were abundant familial and physical resources to provide for the child. The Swinomish tribal community is closely related to the Lummi tribal community. There is a good deal of cross-over between the two communities and they are closely situated geographically.

(5) Baby Boy Galicia, from birth, had been placed with the expectation that the placement would be permanent.

In the present case:

(1) There was no clearly expressed intention by the birth mother to relinquish. However, Lummi Children's Services' failure to develop a permanent placement plan for the child during the first five years of its life, the agency's failure to monitor the case, and the failure of the mother to visit the child for over two years did give rise to reasonable expectations on the part of the foster parents that the placement would be permanent.

(2) The foster family is non-Indian and contact and involvement with Indian culture has not been maintained, even though the placement is nurturing and there are close familial ties and adequate resources for the child.

In both cases there was obvious neglect by Lummi Children's Services in its case management. In Galicia the Lummi birth mother had, as a child, been adopted out of the Lummi Nation. But Lummi Children's Services made no attempt to find the Lummi mother's tribal relatives by birth, or otherwise to find a placement within the Lummi Nation.

In the present case Lummi Children's Services first placed the child with non-Indian foster parents, and then it failed to monitor this placement. The Nation's responsibility for the resulting dilemma was recognized by Lorraine Brave, the guardian ad litem, in her closing argument:

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 208

Justice Irvin: What about the fact that the Lummi Tribe placed this child with the Joneses?

Ms. Brave: Well, it sounds like, what happened five years ago and what the family tells me, they were never approached. So, I don't know what happened. I think that the Tribe had done the most disgraceful work of all. As in two years or two-and-a-half years a caseworker never even visited the Joneses nor made contact with the mother ...

Where the Nation is negligent in its responsibility to oversee placement or has made strong representations of fact by words or actions which lead the foster care parents to rely on a placement as permanent, the Nation will not easily be able to escape the scrutiny of its Tribal Court by simply raising a scepter of sovereignty, a court rule, or the right to control its own children. The Nation's failure, through the negligence of Lummi Children's Services, to perform its custodial obligation and to provide for the nurturing of its children hurts everyone.

VII. STANDING OF FOSTER PARENTS

The narrow issue originally presented to this appellate court was whether the appellants, as foster care parents, had standing to intervene as parties in a dependency action. This issue spawned and touched on numerous issues which are left unanswered by this court. This court, in denying standing to the appellants, did address the underlying issue of what procedural rights, if any, they should have in a dependency action. Left unaddressed are the plethora of other matters which were raised, for example: (1) whether the standard of the "best interests of the child" should be applied to the Lummi Nation's children's cases; (2) the weight to be given the reunification of Indian families in dependency actions; (3) the competency of Lummi Children's Services in managing its children; and (4) the placement of Indian children in non-Indian homes by an Indian agency.

During the pendency of this appeal, the Lummi Business Council enacted Resolution #91-116 (see Part II, supra) to "make clear" what the Nation's policy is regarding standing of foster parents at dependency hearings. But the Council passed no ordinance or resolution providing for the appointment of a guardian ad litem for the child in dependency hearings. Nor did they codify the position they espoused in court: that foster care parents have the right to speak in dependency proceedings at the invitation of the judge, and that this is usually done.

A. Standing of Foster Parents Robert and Joanne Jones as Parties in V.J.s' Dependency Proceedings

The issue before this appellate court was not "What is in the best interests of this child?" But it was impossible for us to consider the issue of standing and the equities behind granting standing without considering how the answer to such a question would affect the child.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 209

Reintegration with the birth mother may not be in the best interests of this particular Indian child. There was strong testimony from Lorraine Brave, the guardian ad litem, that V.J. is growing up believing he is not an Indian, and that this may cause severe problems later when he comes to terms with his Indian identity. There was testimony that the appellants have not told V.J. he is Indian and have encouraged a prejudice against Indians. But there was also very strong testimony from Jack Raskin, M.D., a child psychiatrist who examined V.J., that taking V.J. away from Robert and Joanne Jones, who are now his "psychological parents," would "destroy him."

Janet Jefferson never indicated that she wished to relinquish V.J. At the Elders' panel hearing (see Part II of this opinion, supra) Ms. Jefferson stated that during the period she did not visit V.J. she was going through a period of severe depression and alcoholism. It also cannot be ignored that V.J.'s physical distance from the Lummi Reservation, about 100 miles, made visiting more difficult.

The elders spoke of the ultimate rights of Indian parents to have their children back, when they were able, even if the child had been with an extended family member for a long time. No one could give any information about what traditionally would have happened when a child was cared for by someone outside the extended family, as each family handled these matters individually. There was a strong opposition expressed about having children taken from tribal members, since so many had had their children taken from them, never to be seen again. However, one elder spoke of a case in which an Indian child was well-cared for by a non-Indian family and was allowed to stay in that home. The feeling of tribal members was that when the child got old enough, ''he would find his way home." [paraphrased]

The primary reason for granting the Nation's Motion to Dismiss is that if the appellants were granted standing, the child would be the on-going object of controversy in the lower court. Given the political pressure of the Nation upon the Tribal Court, there would be no realistic chance for an open adoption or guardianship by the foster parents. It is unlikely that standing-in-name would result in standing-in-fact under the circumstances.

It is, however, the earnest concern of this court that if contact and involvement between V.J. and his foster parents is not maintained, and if the case is not closely monitored, V.J. will be severely psychologically injured by the move.

It should be noted that due to the appointment and involvement of guardian ad litem Lorraine Brave, a longer period has been recommended and ordered for the integration of V.J. with his birth family than the thirty-six days originally recommended by Lummi Children's Services. The assistance of the guardian ad litem was necessary because Lummi Children's Services has not functioned as a neutral, dispassionate agency intent on pursuing what was in the best interests of the child. The agency has been

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 210

clearly biased in favor of the Lummi Indian mother's rights. It is hoped that in the future Lummi Children's Services will not need a watchdog.

B. Rights of Foster Care Parents in General

In making the above ruling granting dismissal, this court does not foreclose the possibility of granting standing to foster care parents in the future, if the equities so dictate. To mitigate against the need for the Tribal Court to involve itself in cases of this nature, we recommend that the Nation require that a permanent case plan be developed for all of its children within two years of placement in foster care. If a permanent case plan has not been formulated and implemented within that time, we further recommend that a guardian ad litem be appointed in all dependency matters regarding the child.

It is the holding of this court that foster care parents be notified of all review and dependency actions involving their foster children. In all such proceedings they are to be granted the right to speak as witnesses regarding what they know of the child and his or her actions, or regarding other matters which affect his or her welfare. The court, in its discretion, may also admit the testimony of persons attested by the foster care parents to have personal knowledge of the foster child and/or other information which will aid the court in its fact-finding function.

The trial court's decision is AFFIRMED and the case is REMANDED for further proceedings consistent with this opinion. All pending motions and other matters are also hereby remanded to the trial court.

HOSTNIK, Associate Justice, concurring:

I fully concur in the majority opinion authored by Justice Irvin. However, I feel compelled to make additional observations concerning this case.

PROCEDURE ON APPEAL

This case concerns what appears, at first glance, to present a pure legal issue: Should foster parents be granted the status of a party in a dependency proceeding in Tribal Court? However, when this issue is presented to the appellate court for decision, the court is required to follow that provision of the Lummi Tribal Code which requires a "new trial" on appeal. Section 1.8.05 of the Tribal Code's General Rules states as follows:

Within 45 days from the date of written notice of appeal, the Appellate Court shall convene unless delay is warranted by good cause, to hear the case on appeal at such place as may be designated. A new trial shall be held and court procedures shall be the same as in other cases before the Reservation Court except that there shall be no right to trial by jury [emphasis added].

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 211

This provision of the Lummi Code impacts this court's ability to expeditiously handle appeals. However, this is the procedure which the Lummi Business Council has elected to adopt concerning appeals, and therefore this court must follow that procedure.

Exactly what constitutes a "new trial" for purposes of an appeal is not defined by the Lummi Tribal Code. Whether a particular appeal demands a full trial or some more limited right to present testimony must be determined on a case-by-case basis. This necessarily leads to ambiguity and uncertainty, both for the panel of appellate judges and for those persons practicing before the Lummi Tribal Court of Appeals. This requirement also leads to an inordinate delay in reaching a decision by the Court of Appeals.

As applied to this case, this provision afforded the appellants a full opportunity to introduce testimony in support of their position. Any ruling on a motion to dismiss prior to permitting the appellants to introduce their testimony would have been premature. The court was therefore constrained to wait until that presentation was complete before considering the respondent Nation's Motion to Dismiss. The Lummi Nation may desire to reexamine and further define the procedures to be followed in an appeal from a trial court decision.

WHAT THIS CASE IS NOT ABOUT

This case has become quite extraordinary in scope. Counsel for the birth mother remarked that when he first reviewed the case, the issue of whether foster parents should be permitted to intervene in a dependency proceeding and be accorded the rights and privileges of a party seemed to be a narrow legal issue. However, as this case has proceeded, it has exploded into a multitude of issues raised and addressed by the various parties. As a result, the case became highly charged emotionally and, therefore, extremely divisive.

At one point in the proceedings, the court heard a statement by Mr. Richard Fornsby, grandfather of the child who is the subject of these dependency proceedings. Mr. Fornsby made an extremely powerful statement, which overshadowed the arguments and statements of the attorneys and parties to the action.

However, it is important to remember what this case is not about. This case is not about severing Indian children from the ties they have to their biological parents. This case is not about the Tribal Court placing Indian children in the foster homes of non-Indian families. Lummi Children's Services was the tribal agency that initially placed this child with the non-Indian foster parents who are appellants' in this proceeding.

This case is also not about permanently removing Indian children from the reservation, and forever severing their cultural ties to their family and tribe. This case is not about forever preventing this child from having contact with his tribe, birth parents, or extended family.

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 212

This case is not about who – the child's birth mother or the foster parents – should be granted custody of V.J. The proper disposition or residential placement of V.J., both short-term and long-term, is an issue that will be addressed eventually in this dependency, but it is not before us on appeal. Disposition is an issue for the trial court, not the appellate court.

This case is also not about whether the transition plan proposed by Lummi Children's Services was appropriate. That determination must necessarily be made in the context of deciding what is in the best interest of the child. Circumstances have undoubtedly changed during the period this case has been on appeal. The trial court should closely monitor this case to be sure that the decisions made concerning this child are in fact in his best interest.

PROPER ROLE OF FOSTER PARENTS

The proper focus of this appeal was on the role foster parents should have in Lummi dependency matters. If foster parents are not accorded party status, what role, if any, should they play in a dependency proceeding?

The Lummi Tribal Juvenile Code, Section 8.5.03, allows the court, in its discretion, to receive testimony from persons who have a "proper interest" in the case. Clearly, residential foster parents have a proper interest in most, if not all cases. By virtue of the time spent with the child, foster parents can provide valuable information to the court, which will be extremely useful in making decisions as the dependency proceeds through the court system.

The facts in this case also point out the need for foster parents to be able to provide information to the court which will allow it to evaluate the recommendations being provided by the Nation's children's services agency. Unfortunately, all too frequently, the Tribal Court is placed in the position of merely providing a rubber-stamp to the recommendations of the Nation's children's services agency, simply because there is no testimony to the contrary. This is extremely dangerous to the health and welfare of the child when a children's services agency functions as an advocate for someone or some entity other than the child.

The ideal situation would be to appoint a guardian ad litem in all cases, but that is rarely done, for financial as well as other reasons. Foster parents, who observe the child on a daily basis, attend to the child's medical needs, attend to the child's educational needs, and attend to the other special needs of the child, are in the best position to provide reliable information to the court concerning the recommendations of the children's services agency.

The question presented by this case is how far should the "participation" of the foster parents extend? Since foster parents are not granted full party status, they do not have the right to cross-examine witnesses presented by any other party to the proceeding. Nor do they have the right to depose witnesses prior to the proceeding, or to generally turn the dependency hearing into an adversarial proceeding. However, this is not to say that if the testimony

2 NICS App. 196, In Re the Welfare of V.J. (November 1992) p. 213

presented by the foster parents fails to align itself with the position being taken by the Nation's children's services agency in the case, the foster parents should not be permitted to present that testimony.

A middle ground must be reached which allows foster parents to present testimony which will help the court in making its dependency decisions. The majority opinion defines this middle ground. Foster parents are a valuable source of information which should be taken into account in determining what is in the best interest of a child. This is especially important in cases where Lummi Children's Services has acted less than appropriately.

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Publisher’s note: To protect their confidentiality, minors, persons determined to be incompetent, victims of sex-related crimes, and other persons may be identified only by their initials in the online version of this opinion.

We note that the concerns expressed in the Nation’s Motion for Recusal could easily have been addressed by a Motion for Reconsideration or Modification, rather than an attack on the court.