6 NICS App. 129, IN RE THE MATTER OF THE GUARDIANSHIP OF L.S. (September 2003)
IN THE SWINOMISH TRIBAL COURT OF APPEALS
SWINOMISH INDIAN RESERVATION
LACONNER, WASHINGTON
In re the Matter of the Guardianship of L.S., an Indian Youth
Phillip Stone, Petitioner.
No. SWI-G-4/98-058 (September 5, 2003)
SYLLABUS*
Trial court issued order dissolving guardianship. Court of Appeals holds that guardian’s claims of error generally lack merit and in any event fail to meet tribal code requirement that alleged errors have an effect on the outcome of the case. Trial court order affirmed.
Before: Lisa E. Brodoff, Chief Justice; Lisa A. Atkinson, Justice; Gary Bass, Justice.
OPINION
JURISDICTION
The Swinomish Tribal Court of Appeals has jurisdiction to hear and determine appeals from Tribal Trial Court final judgments, rulings that substantially alter the course of trial court proceedings, sentencing or disposition orders, pursuant to §2‑3.020 of the Swinomish Tribal Code (hereinafter "Code”).
DISCUSSION
The Petitioner, Phillip Stone, filed an appeal with this Court of Appeals on June 19, 2003. Mr. Stone appeals from the trial court's Order Dissolving Guardianship entered on May 19, 2003. Petitioner’s appeal was timely filed under §2‑3.030(a) of the Code. The Court of Appeals, having now reviewed the records and files herein, and having listened to the audiotape of the May 19, 2003, hearing on Swinomish Family Services' motion to dissolve the Guardianship of L.S., hereby orders this appeal denied for failure to meet the requirements of the Swinomish Tribal Code §2‑3.030(c)(4), which states. in relevant part:
A Notice of Appeal shall be entitled as such and shall:
….
6 NICS App. 129, IN RE THE MATTER OF THE GUARDIANSHIP OF L.S. (September 2003) p. 130
(4) List each error of law or procedure which the appellant claims was committed by the Swinomish Tribal Court and its effect on the outcome of the case.” (Emphasis added.)
This Court holds that Petitioner's Notice of Appeal fails to comply with subsection (4) in that its listing of eight alleged errors (hereinafter "Bases") does not set out the effect each would have on the outcome of the case.
Mr. Stone's first two Bases for appeal generally allege that he was not prepared for the dissolution hearing. We hold that Bases #1 and #2 lack merit because Petitioner was in fact represented at the hearing by spokesperson Amy Frederick, who could have requested a continuance if necessary to prepare further for the hearing. Ms. Frederick made no specific request for continuance, nor does the Notice allege that a request was made and denied by the trial judge.
Basis for Appeal #3 lacks merit because the action complained about here is with respect to the filings in Washington State Superior Court dependency action, not the dissolution of the Guardianship. The Swinomish Trial Court has no power over the service of the dependency action in State Court.
Basis #4 alleges a due process violation. Mr. Stone fails to specify the due process rights which were allegedly violated or how these alleged violations affected the outcome of the case.
In Bases #5 and #6, Mr. Stone alleges that he was not able to present certain evidence and that the testimony of his former spouse was not subject to review. After reviewing the tape recording of the hearing, We hold that Bases #5 and #6 lack merit. There is no evidence on review of the tape that Petitioner attempted to present and was denied the opportunity by the trial court to present witnesses, testimony, or other evidence at the hearing. Furthermore, with regard to Basis #5, even if all the allegations made are presumed to be true, this evidence would have no effect on the outcome of the case (i.e., dissolution of the guardianship). The purpose of the Swinomish Juvenile Code Title 8 is:
To insure that young Indian people of the Swinomish Indian Tribal Community receive assistance and guidance in their own homes, whenever possible, separating the youth from his/her parent(s) only when necessary for his/her welfare. Section 8‑1.010(E) (Emphasis added.)
The original guardianship was established because it was, at that time, necessary for the child's welfare to remove her from her parents' home. While the Guardianship chapter of the Juvenile Code §§8‑27.010 ‑ .060 does not specifically address when a guardianship should be dissolved, the overall purpose of the Code to place children with their parents is paramount. Therefore, a guardianship should be dissolved in favor of placement with a child's biological parents when they are both willing and deemed fit to resume custody, regardless of whether the
6 NICS App. 129, IN RE THE MATTER OF THE GUARDIANSHIP OF L.S. (September 2003) p. 131
current court‑appointed guardians are willing and capable of remaining the primary caregivers.1 None of the evidence proffered by Petitioner's Basis #5 addresses or alleges the inability of L.S.'s parents to care for their daughter. Even if Petitioner could prove the facts alleged in Basis #5, they would have no effect on the outcome of the case given the current fitness of L.S.'s biological parents to care for their daughter.
Basis #7 alleges further evidence that Petitioner would have presented in support of his position. Basis #7 lacks merit because Petitioner could have requested a continuance if additional time was needed to establish facts relevant to his claim, or could have testified himself at the hearing on the dissolution of the Guardianship. Petitioner did neither and is, therefore, precluded from now raising these facts before the Court of Appeals.
Basis #8 alleges that all of the evidence presented at the hearing was hearsay. This Court disagrees. The Trial Court's order is properly based on sworn affidavits, testimony, and the certified Order of Protection on file with the Court, and not on impermissible hearsay. Furthermore, Petitioner made no hearsay objections to the court below and is now barred from raising this issue for the first time on appeal.
ORDER
We hold that none of the eight errors alleged by the Petitioner meets the requirements of Swinomish Tribal Code §2‑3.030(c)(4) in that the Notice of Appeal fails to show how each had an "effect on the outcome of the case." Therefore, Petitioner's appeal is hereby denied.
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.
While law from other jurisdictions is not binding on this Court, it is often useful in providing guidance. This Court notes that other tribal youth codes express similar concerns with preserving and restoring the relationship between Indian children and their biological parents. See Chehalis Youth Code §§12.01.010 and 12.06.010; Muckleshoot Youth Ordinance §§12.01.010 and 12.06.010; Nooksack Youth Code § 15.01.010; Tulalip Tribal Youth Code, Ordinance #8l.