5 NICS App. 116, IN RE THE WELFARE OF D.C.D. (August 1999)
IN THE PORT GAMBLE S’KLALLAM TRIBAL COURT OF APPEALS
PORT GAMBLE S’KLALLAM INDIAN RESERVATION
KINGSTON, WASHINGTON
In Re the Welfare of D.C.D., an Indian Youth
No. POR-C-5/88-64 (August 31, 1999)
SUMMARY
The Court of Appeals holds that the trial court abused its discretion when it granted an emergency custody order granting custody of a youth to his maternal grandmother, when the youth’s health, safety, and welfare were not seriously endangered, and the youth was not found to be in need of care. In addition, the Court found that Appellant had not received adequate notice when he was served with a notice of hearing only one day before the scheduled hearing; was not served with a summons; nor served a copy of the Request for Emergency Custody Order; and had no notice as to the subject matter of the hearing. Order vacated.
FULL TEXT
Before: Lorintha Warwick, Chief Justice; Clifford L. Marshall, Justice; and Douglas Luna, Justice.
Appearances: Mr. J. Doe1, Appellant; Richard Guest, attorney for Appellant; Ms. K. Jones, Respondent.
THIS MATTER came before the Port Gamble S’Klallam Tribal Court of Appeals pursuant to a notice of appeal filed by Appellant, Mr. J. Doe, on September 3, 1998. Mr. Doe appeals the July 29, 1998, Custody Order which grants custody of his son, D.C.D., to Ms. K. Jones, the boy’s maternal grandmother and the Respondent in this matter.
I. BACKGROUND
D.C.D. was born in 1986 to Appellant, J. Doe, and R. Jones, daughter of K. Jones. Mr. Doe is an enrolled member of the Skokomish Indian Tribe. Ms. R. Jones was an enrolled member of the Port Gamble S’Klallam Indian Tribe, as is her mother, K. Jones. The dual enrollment issues regarding D.C.D. have not been resolved.
5 NICS App. 116, IN RE THE WELFARE OF D.C.D. (August 1999) p. 117
R. Jones died in an automobile accident in February of 1988. On August 19, 1988, the Port Gamble S’Klallam tribal court issued an Order of Indian Guardianship which placed legal guardianship of D.C.D. with his maternal grandmother, K. Jones.
In February of 1992, Mr. Doe moved to terminate the guardianship. In a March 17, 1992, order, the trial court ordered that D.C.D. remain with his grandmother, but established a visitation schedule with his father to allow a gradual transition from his grandmother’s home to his father’s home on the Skokomish Indian Reservation.
In May 1993, Mr. Doe again moved the court for an order terminating the 1988 Guardianship Order. By order dated September 7, 1993, the trial court granted Mr. Doe’s motion; D.C.D.’s guardianship was placed with his father and his grandmother was allowed unlimited visitation. The court’s order also provided:
. . . if the youth decided that he would rather return to the care of [K. Jones], [J. Doe] must respect and grant the youths [sic] wishes by notifying this court.
Ms. Jones appealed the Termination of Guardianship to the Port Gamble S’Klallam Tribal Court of Appeals. In December 1993, the Court of Appeals reversed and remanded the matter for rehearing. Pursuant to a hearing on remand, the trial court issued a February 23, 1994, order terminating the Guardianship Order and placing legal custody of D.C.D. with his father. Ms. Jones was granted temporary physical custody of D.C.D. for the remainder of the 1994 school term. Mr. Doe was required to notify the court of any requests D.C.D. made regarding a desire to return to the home and custody of his grandmother. D.C.D. went to live with his father on the Skokomish Indian Reservation at the end of the 1994 school year. He continued to visit his grandmother on the scheduled alternating weekends, holidays, and summer vacations.
On July 22, 1998, Ms. Jones filed a Request for Emergency Custody Order Hearing with the trial court based upon the allegation that D.C.D. had expressed a desire to live with her. On July 27,
1998, the trial court entered a Notice of Hearing for a hearing to take place on July 29, 1998. Mr. Doe received the Notice on July 28, 1998. There is no evidence in the record, however, that Mr. Doe was served with a copy of Ms. Jones’ request for the hearing.
According to the transcript of the July 29 hearing, Mr. Doe had no notice as to the subject of the hearing and requested additional time to talk to his son. At that hearing, Mr. Doerequested a continuance to allow him the opportunity to retain counsel and to prepare a response to the emergency petition. In a Custody Order dated July 29, 1998, the trial court denied his request and granted custody of D.C.D. to his grandmother.
II. DISCUSSION
The trial court issued a custody order pursuant to K. Jones’ petition for an emergency custody
5 NICS App. 116, IN RE THE WELFARE OF D.C.D. (August 1999) p. 118
order. Section 16.02.12 of the Port Gamble Law and Order Code provides:
The court may issue an emergency custody order upon an oral or written statement of facts showing probable cause to believe that a child is in need of care and that his or her health, safety, and welfare will be seriously endangered if not taken into custody.
Ms. Jones’ petition for an emergency custody hearing alleges neither that D.C.D. is a youth in need of care nor that his health, safety, or welfare are in danger. During the hearing, the trial court judge specifically stated, “I don’t see him as a youth in need of care any more.” Neither did the trial court find that D.C.D.’s health, safety, or welfare were in danger. Thus, no emergency existed pursuant to §16.02.12 of the Family Code. Nevertheless, the trial court granted the emergency petition. This was an abuse of discretion.
Both tribal law and the Indian Civil Rights Act prohibit a tribe, including its tribal court, from depriving an individual of liberty or property without due process. Due process requires adequate notice and an opportunity to be heard. Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 259 (Hoopa 1993). The Port Gamble Tribal Code does not address notice requirements or any other procedures for custody modification petitions; however, it does require notice of a hearing of at least twenty days for hearings on petitions for guardianship (§§16.03.05 and 16.08.05), termination of parental rights (§16.04.05), and adoption (§16.05.05). Fact-finding hearings require notice of at least five working days (§16.07.17). Clearly, the code requires that respondents be given some minimal notice of hearings. Further, §3.02.04 of the Law and Order Code requires a petitioner in a civil case to serve the respondent with a summons and a copy of the petition. Section 3.02.06 requires that the summons notify the respondent that he has twenty days to answer the petition.
Mr. Doe was served with neither a summons nor a copy of the petition. Because Mr. Doe did not receive a copy of the petition until after the hearing, he did not have an opportunity to respond to the petition. Further, he did not receive notice of the hearing until the day before the hearing was held. This does not constitute adequate notice. The trial court erred in holding the hearing despite Mr. Doe’s objections regarding notice.
III. ORDER
Therefore, based on the foregoing, the July 29, 1998, Custody Order is hereby vacated. The parties are entitled to refile a petition that is consistent with tribal law and the terms of the February 1994, Order of Guardianship.
The names and initials of all parties have been changed to protect the identities of the parties and the unnamed minor.