In re the Welfare of D.D.

3 NICS App. 269, In re the Welfare of D.D. (January 1994)

IN THE PORT GAMBLE S'KLALLAM TRIBAL COURT OF APPEALS

PORT GAMBLE S'KLALLAM INDIAN RESERVATION

KINGSTON, WASHINGTON

No. POR-C-5/88-64 (January 7, 1994)

SUMMARY

Appeal of Trial Court Order of termination of guardian rights on violation of Indian Civil Rights Act due process grounds. Appellate Court held that the ICRA applies to termination of guardianship proceedings and includes the right to:

(1) receive notice of hearing; (2) an opportunity to be heard; and (3) call and cross-examine witnesses.

Order terminating guardianship rights reversed and remanded to Trial Court for proceedings consistent with the ICRA.

FULL TEXT

Before: Chief Justice Elbridge Coochise, Associate Justice Douglas Hutchinson, and Associate Justice Mary T. Wynne.

Appearances: John DeCoteau, spokesperson for appellant, Carol A. DeCoteau; Kathirine Horne, spokesperson for respondent, David Pulsifer.

NATURE OF THE ACTION

An August, 1988, Order of Indian Guardianship appointed Appellant, child's maternal grandmother, as guardian of minor child. On February 20, 1992, Respondent, minor child's father, petitioned trial court to determine guardianship and care of the child; trial judge subsequently ordered that the child remain with the maternal grandmother.

On May 23, 1993, Respondent moved for termination of guardianship. Trial Court subsequently granted Respondent's motion, ordering termination of guardianship in Appellant and granting guardianship in Respondent. Appellant appeals the Trial Court Order.

COOCHISE, Chief Justice:

Carol A. DeCoteau appeals the Order on Termination of Guardianship based on the lack of the opportunity to be heard, bias, prejudice, and failure to follow court procedures. She contends she was denied due process. We agree, reverse and remand for trial.

3 NICS App. 269, In re the Welfare of D.D. (January 1994) p. 270

BACKGROUND

In August, 1988, an Order of Indian Guardianship was filed appointing the maternal grandmother, Carol DeCoteau, as guardian of the minor child, D.D. Judge Rosemary Irvin granted time, place and manner visitation restrictions as the guardian deemed to be in the best interest of the child.

On February 20, 1992, David C. Pulsifer, the father, petitioned the court to determine the guardianship and care of the child. On March 17, 1992, Judge Dulik ordered that the child remain with the maternal grandmother with an alternating weekend visitation schedule.

On May 23, 1993, David Pulsifer moved the court for a termination of guardianship on the basis of his capability, willingness and ability to provide for his son and the child's desire to live with him. In September, 1993, the trial court ordered termination of guardianship in Carol DeCoteau and granted guardianship of the child to his father, David Pulsifer, effective within (2) days of the hearing, with unlimited visitations by the grandmother. Additionally, the court stated that if the child wishes to return to his maternal grandmother, the father must respect and grant the child's request by notifying the court.

Carol DeCoteau filed her notice of appeal. This Court accepted and subsequently heard this appeal on December 13, 1993.

OPPORTUNITY TO BE HEARD

Under the Indian Civil Rights Act, Indian tribes are prohibited from depriving any person of liberty or property without due process of law. 25 USCA sec. 1302(8). While the meaning of due process under the Indian Civil Rights Act is similar to due process as defined under the United States Constitution, it is different. An Indian Tribal Court's interpretation and application of due process represents the unique tribal sovereign, its distinctive tradition, culture and mores.

While federal, state or other Tribal law is not binding authority upon this Court, such authority can be used as guidance. "'The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394 (1914). The hearing must be 'at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552 (1965)." Goldberg v. Kelly, 397 U.S. 254, 267 (1969).

Due process requires notice, the opportunity to be heard in a full and fair hearing, to call witnesses on your behalf, to cross-examine witnesses, and to be heard before a impartial decision-maker. DeCoteau argued that they were not afforded an opportunity to be heard before the trial court, as required by the Family Code, and any attempts to present witness testimony and evidence was curtailed by the trial court's interruptions.

3 NICS App. 269, In re the Welfare of D.D. (January 1994) p. 271

The Family Code of the Port Gamble S'Klallam Tribe, section 15.03.09, states in part:

The Court shall hear testimony to determine whether guardianship is in the best interest of the child and the tribal community. The Court shall consider all guardianship reports submitted for review. All parties shall be given the opportunity to contest the factual contents and conclusions of the guardianship reports.

DeCoteau argued that attempts to introduce evidence and present an argument was ignored and the Trial Court ruled without considering DeCoteau's evidence.

The trial court did not direct the parties to proceed with their argument. At one point during the hearing, the trial judge did say, ". . . I don't know what else you have to offer, if you have anything to offer Kathirine, or if you have anything more than what you have given me." (Transcript p.4, line 20-22). The trial judge did not inquire whether Decoteau had anything to offer. In fact, when DeCoteau attempted to present the school psychologist's recommendations, the trial judge interrupted and did not allow DeCoteau to continue with his argument. (Transcript p.6, line 8-17).

Following the child's paternal uncle's statement to the trial court, the trial judge stated that it would grant the Pulsifer's motion and then stated, ". . . did you have something?" (Transcript p. 9, line 22-23). Since DeCoteau responded, we can only assume that the trial judge directed the question to him. Again, the record is unclear. DeCoteau argued that since the trial judge had ruled on the motion, additional argument was useless. In fact, DeCoteau thought that anything else he said might jeopardize the chance to appeal. While the trial court did not allow DeCoteau to present evidence, the trial court did allow the uncle to speak. This Court is concerned that the trial court did not allow DeCoteau the opportunity to present witness testimony or argument.

The trial court essentially ruled without hearing any argument from either party. Due process requires the opportunity to be heard. Carol DeCoteau was not given the opportunity to present testimony nor an opportunity to respond to David Pulsifer's motion to terminate guardianship.

TRIAL COURT RECORD AND PROCEDURE

The trial court record is to clearly reflect what occurred during a hearing or trial. The transcript of that hearing or trial can then be read at a later date without ambiguity or confusion as to what exactly occurred; for example, who said what to whom and the evidence presented at the hearing or trial.

Failure to identify the person to whom a comment, question or the like is directed creates confusion. The court reporter or recording equipment cannot pick up a nod, eye contact, gestures, or body language of any kind.

3 NICS App. 269, In re the Welfare of D.D. (January 1994) p. 272

Pulsifer argued that the judge referred to both parties when speaking and then to DeCoteau directly when the judge asked for anything else and this was evidenced by all in the courtroom. This argument fails as insufficient. Eye contact or gestures cannot be discerned from a tape or transcript and determining to whom the judge was directing the question or comment by eye contact is wrought with problems. The purpose of transcribing the hearing is for later review by judges and counsel possibly not present at the hearing from which an appeal arose. When the standard of review is on-the-record, the record must be clear and unambiguous.

This Court is compelled to provide instructions to the trial court in re-hearing this case: 1) notices of the hearing date shall be specific about what will happen at the hearing; in this case, the notice shall specify that the hearing is a final determination of whether the guardianship will be terminated; 2) the courtroom is closed to the public; "[o]nly those persons the Court finds to have a legitimate interest in the proceedings may attend." Family Code 15.03.09; 3) the judge identifies for the record the names of those in attendance and their relationship to the parties and asks for any objections to a particular person's presence; 4) ask each party if the witnesses each intends to call to testify are to be excluded from the courtroom until they are called and then again after they have been excused; 5) before hearing testimony, ask each party if he or she is ready to proceed with the hearing; 6) allow the parties the opportunity to call and identify all of their witnesses, and; 7) specifically address people by name, not gesture, each time a question or statement is directed to someone.

CONCLUSION

For the reasons noted above, this Court reverses the trial court solely on the ground of lack of an opportunity to be heard. The lack of opportunity to be heard is dispositive and, therefore, the remaining issues will not be addressed. Accordingly, this action is hereby reversed and remanded to the trial court for further proceedings consistent with this opinion.

HUTCHINSON and WYNNE, Associate Justices, concur.