6 NICS App. 113, IN RE CUSTODY OF B.S. (March 2003)
IN THE CHEHALIS TRIBAL COURT OF APPEALS
CHEHALIS INDIAN RESERVATION
OAKVILLE, WASHINGTON
In Re: Custody of B.S., An Indian Youth.
No.’s CHE-J-2/94-089, CHE-J-7/02-157 (March 21, 2003)
SYLLABUS*
Trial court awarded physical custody of a minor to the minor’s natural mother following a five-year guardianship and entered a ruling that the guardianship had been terminated by a prior ruling awarding joint custody to the mother and the guardian. Guardian appealed claiming denial of due process and conflict of interest and abuse of discretion on part of trial court judge. Court of Appeals holds (1) notice and opportunity to be heard at court hearings satisfied due process requirements, (2) guardianship was properly terminated, (3) cordial relations between trial judge and court staff do not constitute conflict of interest absent evidence that court staff influenced the judge in any way, and (4) trial judge complied with tribal code and did not abuse discretion. Trial court affirmed.
Before: Chief Justice Fred W. Gabourie, Sr., Justice Lorintha Warwick, and Justice Elizabeth Fry.
Appearances: Christina Hicks, Appellant, pro se; Josephine Charley, Appellee, pro se; Confederated Tribes of the Chehalis Reservation by and through their attorney Anita Estupinan Neal, Attorney at Law.
OPINION
This matter came before the Chehalis Tribal court of Appeals pursuant to Appellant’s Notice of Appeal filed on August 5, 2002. Ms Hicks appeals the Judgment entered by the Chehalis Tribal Court on July 11, 2002.
Oral Argument was heard on January 31, 2003 Fred W. Gabourie, (Sr.), Chief Justice, Elizabeth Fry, Justice, were present and Lorintha Warwick, Justice present by way of telephone. Appellant Christina Hicks, Appellee Josephine Charley; and, Anita Estupinan Neal, Attorney at Law were present on behalf of the Confederated Tribes of the Chehalis Reservation.
6 NICS App. 113, IN RE CUSTODY OF B.S. (March 2003) p. 114
SUMMARY
A guardianship was established for Brent Simmons; Brent's mother, Josephine Charley, consented to the guardianship. Her parental rights were not terminated. Christina Hicks, Brent’s paternal aunt, was appointed as his guardian.
Thereafter, Ms. Charley petitioned the Chehalis Tribal Court for dismissal of the guardianship and return of Brent to her custody. The Tribal Court entered an order giving temporary custody to the mother, Josephine Charley, with visitation to the former guardian, Christina Hicks. Christina Hicks filed an appeal of the Tribal court order, alleging that the Court erred in ruling that the joint custody order constituted a termination of the guardianship proceedings. Appellant complains that the Court did not hold a termination hearing and made no findings of abuse or neglect on the part of the guardian. Appellant concludes that the judge did not have authority to terminate the guardianship and asks that she be given custody of Brent.
The Court of Appeals affirms the trial court’s order terminating the guardianship of Brent Simmons and awarding custody of Brent Simmons to his natural mother, Josephine Charley.
JURISDICTION
This Court has personal jurisdiction over Brent Simmons, an Indian youth, a member of the Chehalis Tribe and residing within the exterior boundaries of the Confederated Tribes of the Chehalis Reservation.
BACKGROUND
A guardianship was established for Brent Simmons on October 21, 1996. Brent's mother, Josephine Charley, consented to the guardianship. Her parental rights were not terminated. Christina Hicks, Brent’s paternal aunt, was appointed as his guardian.
On April 27, 2001, Ms. Charley petitioned the Chehalis Tribal Court for dismissal of the guardianship and return of Brent to her custody.
On June 4, 2001, the Tribal Court declined to terminate the guardianship, stating: "The court does not make any determination regarding whether continuation of the guardianship is in the child's best interest at this time." The Court ordered immediate commencement of visitation between Brent and his mother.
On September 20, 2001, Ms. Charley and Ms. Hicks filed a proposed residential schedule with the Chehalis Tribal Court. The proposed schedule provided for Brent to reside halftime with his mother and half time with his guardian.
6 NICS App. 113, IN RE CUSTODY OF B.S. (March 2003) p. 115
On September 20, 2001, the Tribal Court entered a custody decree stating in part: "Petitioner, and Respondent, Josephine Charley and Christina Hicks shall share legal custody and the parental rights of the above named Child (ren)." The order was silent on the status of the guardianship.
On June 14, 2002, Josephine Charley, petitioned the Chehalis Tribal Court to dissolve the joint custody order of December 20, 2001, and give her full custody of her son Brent.
Ms. Hicks objected to the motion.
The Court held a hearing on the matter on July 11, 2002. That hearing included a full discussion of the best interests of the child. At that hearing Jerri Simmons, Brent's paternal grandmother, argued that the guardianship had been dissolved, that the Tribe was not an appropriate party to the proceeding, which in her opinion was a custody dispute between Brent's mother, Josephine Charley, and Brent's paternal aunt, Christina Hicks.
On July 11, 2002, the Tribal Court entered an order giving temporary custody to the mother, Josephine Charley, with visitation to the former guardian, Christina Hicks.
On August 5, 2002, Christina Hicks filed an appeal of the Tribal Court Order of July 11, 2002. She alleged that the Court erred in ruling that the joint custody order constituted a termination of the guardianship proceedings. Appellant complains that the Court did not hold a termination hearing and made no findings of abuse or neglect on the part of the guardian. Appellant concludes that the judge did not have authority to terminate the guardianship and asks that she be given custody of Brent.
PROCEDURAL HISTORY
On October 21, 1996, a guardianship was established for Brent Simmons. Brent's mother, Josephine Charley, consented to the guardianship. Her parental rights were not terminated. Christina Hicks, Brent’s paternal aunt, was appointed as his guardian.
On April 27, 2001, Ms. Charley petitioned the Chehalis Tribal Court for dismissal of the guardianship and return of Brent to her custody.
The Trial Court on June 4, 2001 did not make any determination regarding whether continuation of the guardianship is in the child’s best interest
On September 20, 2001 Christine Hicks and Josephine Charley entered into a stipulated parenting plan agreement entitled, “Residential Schedule”1. The Court’s Custody Decree dated
6 NICS App. 113, IN RE CUSTODY OF B.S. (March 2003) p. 116
September 20, 2001 granted shared legal custody and parental rights of the child to Ms. Hicks and Ms. Charley and also adopted the terms of the parenting plan.
Thereafter, on June 14, 2002 Ms. Charley petitioned the Chehalis Tribal Court for dismissal of the guardianship and return of Brent to her custody. Hearing on Ms. Charley’s motion was set for July 20, 2002.
The Court on June 20, 2002 ordered a home study of home of both the Appellant and Josephine Charley.
On June 20, 2002, Ms. Hicks was personally served with a copy of the Motion, Notice of Hearing and Order.
The Court made an Order on June 24, 2002 memorializing the Court Order dated June 20, 2002 and Appellant was personally served therewith on June 24, 2002
Ms. Hicks on June 24, 2002 filed a letter to the Chehalis Tribal Court in the nature of an objection to the Court’s Order and alleged “due to no notice of any court hearing or court proceeding.” However Ms. Hicks acknowledged having received a copy of the Motion, Notice of Hearing and Court Order.
On July 8, 2002 Robert Smith, Chehalis ICW worker filed his Homestudy Report of Josephine Charley. On July 11, 2002 Ms. Hicks, the Appellant filed an objection stating, “I would just like to take time to give my objection to the motion of guardianship of Brent J. Simmons.”
On July 31, 2002 the Court, ex parte, granted Appellant’s motion for more time for the home study. The home study was to be completed by September 10, 2002. Ms. Hicks was personally served with a copy of the Court’s Order on August 1, 2002.
The Court held a hearing on July 11, 2002 in which Christina Hicks, among others, were present at which time the Appellee, Josephine Charley was granted temporary custody of Brent Simmons until the next hearing and it was further ordered,
“8. The Guardianship of Brent Simmons was effectively terminated when this court entered the custody order on this matter. The court clerk is directed to close and seal the guardianship file after today’s order”
Appellant Christina Hicks was personally served with a copy of the Order After Hearing on August 1, 2002.
Appellant, on August 5, 2002 filed a Notice of Appeal and Petition for an Appeal.
6 NICS App. 113, IN RE CUSTODY OF B.S. (March 2003) p. 117
ISSUES ON APPEAL
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1. |
Did the Appellant receive due process regarding the termination of the guardianship? |
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2. |
Did the trial court have a conflict of interest because of her working relationship with the clerk? |
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3. |
Did the trial court abuse her discretion in deciding to terminate the guardianship? |
DID APPELLANT HAVE AN 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.2 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. A 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.3 The hearing must be 'at a meaningful time and in a meaningful manner.4 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.” In re the Welfare of D.D., No: POR-C-5/88-64 (1994).
Here, the court records clearly shows that Appellant had been personally served with Notice for every hearing concerning this matter.5 Appellant appeared and testified on July 11, 2002 in the court hearing of Josephine Charley’s Motion to Vacate Guardianship and for the custody of Brent Simmons6 which, in part, resulted in the Courts Order that Appellant appeals.
The Court finds the Appellant was not denied due notice of any hearing nor denied an opportunity to be heard.
WAS THE GUARDIANSHIP TERMINATED WITHOUT HEARING
Chehalis Tribal Code states that every guardianship continues according to the order of appointment until legally discharged and each youth for whom a guardian has been appointed by
6 NICS App. 113, IN RE CUSTODY OF B.S. (March 2003) p. 118
the Youth court remains a ward of that court for the duration of the guardianship7, and any placement of a youth, in the absence of good cause to the contrary, in accordance with the following preferences with the youth’s parent,8 and that any placement of a youth shall be governed by his best interests.9
The discharge of a case means a dismissal, or canceling or vacating of a court order10
The Court noted in its July 11, 2002 Order, the order of joint custody implies termination of the guardianship and on page 3 of said Order:
“The mother, Josephine Charley shall have the temporary custody of the child until next hearing.”
The Court further found that there was a change in circumstances and that the mother’s home was appropriate for the child and that custody to the mother. would be in the best interest of the child.
This Court finds the guardianship was properly terminated pursuant.11
CONFLICT OF INTEREST
The appellant argues that the trial court judge had a personal relationship with the court clerk and Josephine Charley because Josephine Charley baby-sat for the court clerk, which therefore created a conflict of interest.
During the course of court business a friendly relationship between the judge and court personnel is normal and promotes professionalism and efficiency and is not in and of itself a conflict of interest There are no facts presented to show the slightest indication that the court clerk influenced the judge in any way in her decision in the case at hand.
The Court finds no conflict of interest.
JUDICIAL ABUSE OF DISCRETION
Abuse of discretion is synonymous with a failure to exercise sound, reasonable judgment, and legal discretion.12
6 NICS App. 113, IN RE CUSTODY OF B.S. (March 2003) p. 119
The judge followed the letter and spirit of the Chehalis Tribal Code by terminating the guardianship and placing the custody of the child with his mother. Further the court recognized Appellant’s important and valuable attachment to the child and therefore memorialized visitation between child and his grandmother, Jerrie Simmons and the Appellant
The Court finds there has been no judicial abuse of discretion.
ORDER
The trial court’s decision is AFFIRMED and the appeal is dismissed.
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.
It appears that Spokesperson Desmond Kolke represented Christine Hicks in the negotiations of the stipulation and Josephine Charley was pro se.
25 USCA sec. 1302(8)
Grannis v. Ordean, 234 U.S. 385, 394 (1914)
Armstrong Q v. Manzo, 380 U.S. 552 (1965), Goldberg v. Kelly, 397 U.S. 254, 267 (1969)
In Re The Matter Of, BRENT SIMMONS, Indian Youth, Case No.: CHE-J-2/94-089
Tab #6 Case Status Sheet.
Chehalis Tribal Code Section 12A.12.080 (a), (b).
Chehalis Tribal Code Section 12A. 12.066.010
Chehalis Tribal Code Section 12A. 12.06.020
Black’s Law Dictionary 7th Edition
Chehalis Tribal Code Section 12A.12.070
Black’s Law Dictionary 7th Edition