6 NICS App. 200, FERN v. TORRES (October 2004)
IN THE CHEHALIS TRIBAL COURT OF APPEALS
CHEHALIS INDIAN RESERVATION
OAKVILLE, WASHINGTON
Lindsey Fern, Appellant,
v.
Victor Torres, Respondent.
No. CHE-CIV-5/01-011 (October 26, 2004)
SYLLABUS*
Trial court granted non-custodial parent’s petition for change in custody. Court of Appeals holds (1) failure of trial court to clearly label relevant findings of fact and conclusions of law as such does not require reversal when the relevant findings and conclusions can be found within the court’s order; (2) laws of the State of Washington do not apply where, as here, the tribal code directly addresses the issues before the court; and (3) the record contained substantial evidence supporting the trial court’s order. Trial court order affirmed.
Before: Katherine M. Eldemar, Chief Justice; Lisa A. Atkinson, Justice; Martin C. Bohl, Justice.
OPINION
Per curiam:
Appellant, Ms. Lindsey Fern (Ms. Fern) petitioned the Chehalis Court in June of 2001 for primary residential custody of "B.T.", the biological minor child of Respondent, Mr. Victor Torres (Mr. Torres). At that time, Mr. Torres agreed to Ms. Fern's proposed parenting plan. However, in September of 2002, Mr. Tories filed a petition to modify the agreed residential schedule and custody decree, specifically requesting in the petition that the court find adequate cause to revisit the residential schedule. While the record is unclear on this point, we accept that the court found adequate cause to revisit the plan. The court appointed a Guardian ad Litem ("GAL") in November of 2002. The record reflects that Ms. Fern failed to participate in the GAL investigation for several months. The court issued several orders directing that Ms. Fern participate or appear and show cause why she should not be held in contempt for her failure to do so.
6 NICS App. 200, FERN v. TORRES (October 2004) p. 201
The GAL submitted a report to the court in May of 2003. In September 2003 the court granted a partial amendment to the parenting plan in an order on motion, allowing additional visitation for Mr. Torres. Ultimately, the court set a trial on the merits of the petition and issued Findings of Fact and Conclusions of Law ('Findings of Fact") in this matter on April 1, 2004. This appeal followed on April 15, 2004.
Ms. Fern challenges several findings and conclusions and the parties agree that the Chehalis Tribal Code does not set out a standard for reviewing the trial court's factual findings. This court will review the findings of fact and conclusions of law and define a standard of review for this purpose. We encourage the Chehalis tribe to define appropriate standards in their laws. Until such time, this appellate court shall adopt the standards as set forth herein.
Ms. Fern urges this court to adopt the complex statutory scheme defined by the State of Washington. We recognize that Washington and Chehalis both lend great weight to the principle of custodial continuity; nonetheless, Chehalis has not adopted Washington law verbatim and this court declines to do so. The Chehalis Tribal Council is the appropriate body to adopt or define broad statutory constructs.
We shall work within the framework of the existing Chehalis code and were the code is silent we shall look to common law principles to fill in the gaps. Title 5 of the Law & Order Code, Appellate Rules, section 5.03.030 (Scope of the Review) reads as follows:
The Court of Appeals shall limit its review to 1) the record of proceedings from the Chehalis Court of Justice, 2) errors of law and procedure raised by the Ms. Fern in his or her written brief, and 3) oral argument presented at a hearing before the Court of Appeals.
The code sets no standard to review the trial court's factual findings. We deduce, however that this is a mere oversight as the code directs us to review errors of law. A fact finder commits an error of law when she makes findings that are unsupported in the record. Consequently, a review of trial court facts must be anticipated. We believe that any other interpretation of this language would be strained and would place the review of trial court facts beyond our jurisdiction; this interpretation would defy logic. Consequently, we deduce that Chehalis intended this court to review factual findings for accuracy. We shall therefore set a standard to review factual findings until Chehalis clarifies the standard with further legislation.
STANDARD OF REVIEW
We shall examine the lower court's findings to determine whether the court abused its discretion in making a particular finding. Abuse of discretion is
…synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that the appellate court is of the opinion that
6 NICS App. 200, FERN v. TORRES (October 2004) p. 202
there was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment—one is that clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law. State v Draper, 83 Utah 115, 21 P2d 39; Ex Parte Jones, 246 Ala. 433, 20 So.2d 859, 862. Abuse of Discretion, page 10, Black's Law Dictionary, Sixth Edition, 1990, emphasis added.
In order to determine if the trial court abused its discretion in making a particular finding, we examine the record to determine whether the court's findings are supported by substantial evidence. The substantial evidence test is nearly universally applied in state, federal and tribal courts. It is an acceptable and well reasoned standard for reviewing trial records. The Tulalip Court of Appeals has ruled,
When reviewing the findings of fact of the lower court, this Court must find some abuse of discretion on the part of the judge before we may disturb the lower court order. And abuse of discretion does not exist if the findings of the judge are supported by substantial evidence. Davis v. Tulalip Tribes, 5 NICS 11, 14 (August 1997).1
Substantial evidence has been defined in varying ways in many jurisdictions but the essence of the standard is universal. It is "evidence which would convince an unprejudiced, thinking mind of the truth of a declared premise." See, Lower Elwha v Elofson, 4 NICS App. 99 at 103 (Lower Elwha 1996), citing Freeburg v Seattle, 71 Wash. App. 367, 859 P. 2d 610 (1993). Alternatively, "Substantial evidence is that which a reasonable mind would regard as adequately supporting a particular conclusion." See, Walker v North Carolina Dep't of Human Resources, 100 N.C. App. 498, 503, 397 S.E. 2d 350, 354 (1990). If substantial evidence is lacking, the fact finder will be deemed to have abused her discretion and committed an error of law.
The abuse of discretion standard, as opposed to the de novo standard, affords appropriate deference to the fact finder, recognizing that she has examined the witnesses first hand and is therefore better equipped to make determinations relative to credibility. Consequently, there may be substantial evidence to support findings for either side of a contested issue yet we should refrain from disturbing the trial court's findings even if, in the balance, we disagree with them. This is why substantial evidence is often defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion and consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." See, Marker v Finch, D.C.Del.,
6 NICS App. 200, FERN v. TORRES (October 2004) p. 203
322 F. Supp. 905, 910. Here, the record contains substantial evidence to support the trial court's findings that adequate cause existed to revisit the residential schedule.2
LEGAL STANDARDS FOR CHANGE OF CUSTODY
Ms. Fern challenges two basic conclusions. First she challenges that the court erred when it concluded that the custody decree should be revisited. Second, she challenges the conclusion that B.T. should be placed in Mr. Torres' primary residential care.
Ms. Fern argues that the Trial Court did not apply the correct legal standards for making a change in child custody. We disagree. Ms. Fern supports her claim by drawing a similarity between Chehalis and Washington law and then proceeds to argue Washington statutory provisions and Washington case law in support of her contention. We disagree; while this Court may look to federal or state law for guidance in situations where Tribal law does not speak to an issue, we have tribal law on point here.
After determining that the court’s findings were supported by substantial evidence, we must examine whether the findings support the conclusions that (1) the residential schedule should be revisited, and (2) that B. T. should be placed in Mr. Torres' primary residential care, given the standards for changing placement defined in the Chehalis code.
The standard for revisiting a custody decree is defined in Chehalis Tribal Family Code, section 11.04.08, which provides in relevant part as follows:
Provisions for the custody of a child … may be modified at any time following entry upon a showing of good cause and changed circumstances.
The record clearly supports this conclusion even though the trial judge did not articulate the conclusion verbatim in any court order. (See the discussion in footnote 2.) We are free to surmise that the conclusion was met in the eyes of the trial judge because the judge entertained a petition, which requested an adequate cause finding and a trial notation. The court held several hearings on the petition, appointed a GAL, assisted the parties in overcoming many difficulties
6 NICS App. 200, FERN v. TORRES (October 2004) p. 204
relative to Ms. Fern's apparent unwillingness to participate in the investigation, and noted the matter for trial. The judge simply failed to state the conclusion in an order. We find no error here.
The standard for changing placement is designated in Chehalis Tribal Family Code, section 11.04.05(a) (3) (i).
Section 11.04.05 (a) provides that:
(a) The Court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards, the Court shall retain the custodian established by the prior decree, unless:
(3) the child's present environment is detrimental to his physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child:
(i) Provided, however, that if the child's present environment is adequate to his physical, mental and emotional health but a change in custody would result in a significantly improved environment which would clearly outweigh the detriment caused by the disruption of the child's living pattern, the Court may order a change in custody.
Here again, there is substantial evidence in the record to support the trial court's findings. The trial court did not, however, specifically articulate the conclusion anticipated in section 11.04.05 (a) (3) (i). Rather, the Findings and Conclusions at page 7, lines 21‑26 and page 8 lines 1‑22 strongly suggest that the appropriate conclusions were made but that they were misstated. We conclude that the trial court applied the correct standard.
We now review the record to determine whether the court erred in drawing the conclusion. We conclude that there is no error here. The findings entered by the trial court support the conclusion that the child's present environment was detrimental to his physical, mental, or emotional health and that the harm likely to be caused by a change of environment was outweighed by the advantage of a change to the child. Further, we find substantial evidence in the record to support the court's findings on this issue. We also conclude that the trial courts findings support the conclusion that the child's present environment may have been adequate to support his physical, mental and emotional health, but a change in custody would result in a significantly improved environment which would clearly outweigh the detriment caused by the disruption of the child's living pattern. Consequently, the Court appropriately ordered a change in custody. We therefore affirm.
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.
The Prot Gamble S’Klallam Court of Appeals applies the same standard. See Decouteau v. Ives, Jr., 2 NICS 170, 174 (August 3, 1992).
Having recognized that substantial evidence exists to support findings for either side, we will not dwell unnecessarily on the facts; however, by way of example, we will review some evidence that supports the conclusion that a substantial change in circumstances has arisen. Ms. Fern sought and received a restraining order against her former husband subsequent to the original custody decree. This alone may constitute a substantial change in circumstances. Ms. Fern admitted to resuming a relationship with a man who abused her. She stated that this man has,
thrown me on [the] ground and strangled me, pushed me, pulled my hair, punched me in the face leaving a black eye, threatens to cause bodily harm, throws whatever is near him in my direction. A lot of verbal abuse, his temper is such that one can't predict he behavior and not only am I frightened when he explodes but the children are also very scared and confused as to why their father is throwing things and yelling at me. Appellant's Petition for Order of Protection, page 4, "Statement," filed January 7, 2002.