8 NICS App. 20, IN THE MATTER OF A.N. (June 2007)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
In the Matter of A.N., A Minor Indian Child.
Kevin Norton, Petitioner and Appellee,
v.
Pamela Branham, Respondent and Appellant.
No. JC-05-021/A-06-006 (June 22, 2007)
SYLLABUS*
In an order entitled “Custody Order Following Hearing,” trial court granted custody of a minor to the minor’s father, with supervised visitation to the mother. Court of Appeals holds that because the trial court order does not set forth a permanent parenting plan and does not meet other statutory requirements, it is not a final judgment and is therefore not an appealable order. Appeal dismissed and matter remanded for entry of a final judgment.
| Before: | Michelle Demmert, Chief Justice; Matthew Fletcher, Justice; Suzanne Ojibway Townsend, Justice. |
| Appearances: | Pamela Branham, pro se; Kristi Shelloner, Spokesperson for Appellee Kevin Norton. |
OPINION
I. Introduction
Appellant/Respondent Pamela Branham appeals from an October 9, 2006 entitled “Custody Order Following Hearing (10/09/06).” The order appealed from was entered by the trial court in a civil child custody dispute filed by Appellee/Petitioner Kevin Norton. Mr. Norton’s original petition was filed on July 28, 2005 under the provisions of the Hoopa Valley Tribe’s Domestic Relations Code. Mr. Norton sought joint custody and visitation with A.N., the minor child of the parties.
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 21
The trial court’s October 9, 2006 order modified a previous custody order temporarily awarding joint legal and physical custody to both parties. The October 9, 2006 order granted sole legal and physical custody to Appellee/Petitioner Norton, with supervised visitation to Appellant Branham.
For the reasons set forth below, we DISMISS the appeal and REMAND to the trial court for further action in accordance with this opinion.
II. Factual Background and Procedural History
Pamela Branham, Appellant/Respondent, and Kevin Norton, Appellee/Petitioner, are the parents of A.N., a minor child. Ms. Branham and Mr. Norton were never married. Ms. Branham and Mr. Norton are both enrolled members of the Hoopa Valley Tribe, as is their minor child, A.N. Both parents and the minor child reside on the Hoopa Valley Reservation.
In July 2005, Mr. Norton filed a “Petition for and Affidavit in Support of Parenting Plan” in Hoopa Valley Tribal Family Court, seeking both a temporary and a permanent parenting and visitation plan. Mr. Norton filed his Petition pursuant to Chapter 4 of Title 14A of the Hoopa Valley Tribal Domestic Relations Code, which governs civil child custody disputes. Hoopa Valley Tribal Code, Section 14A.4.20(B).
In his original Petition, Mr. Norton sought joint custody of A.N. He also sought a schedule for when the child would reside with each parent. At some point, presumably before or during the September 2005 hearing on his Petition, Mr. Norton amended his Petition to request full custody of A.N. See Custody Order Following Hearing (9/08/2005), Hoopa Valley Tribal Court, Case Number: JC-05-021.1
After a hearing, the trial court entered a temporary custody order entitled ”Custody Order Following Hearing (9/08/2005)”. This order awarded full physical custody of A.N. to Ms. Branham, and “split legal custody.”2 The trial court also granted supervised visitation to Mr. Norton and set the visitation schedule. Id. In addition, the trial court ordered that Lisa Hamrick, Mr. Norton’s partner, not be present during any visitation between the child and Mr. Norton. Id. Hearing on the matter was continued to May 30, 2006, for review. The trial court did not designate or enter a permanent parenting plan.3
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 22
On September 9, 2005, one day after the September 8, 2005 hearing on his original Petition, Mr. Norton sought a modification of the court’s September 8, 2005 order on the basis of new evidence. Specifically, Mr. Norton asked the court to allow his partner, Ms. Lisa Hamrick, to have contact with A.N. during his visits with the child. After hearing on the modification request, the trial court referred the dispute to mediation through Hoopa Human Services regarding the visitation issues, and cancelled all visitations pending a further hearing. Again, the court continued the matter until a future date.
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 23
On November 22, 2005, another hearing before the trial court was held, which the trial court titled a “further hearing on mediation.” The mediation at Hoopa Human Services had been held and had resulted in partial agreement, but did not result in agreement concerning the length of the visits with Mr. Norton, where the visits should take place, and whether the visits should be supervised. At this hearing, Ms. Branham testified that Mr. Norton was currently on probation with Humboldt County Juvenile Court and that the terms and conditions of his probation required that Mr. Norton not have contact with any female under the age of 16 years. Mr. Norton agreed with the testimony regarding his probation status. The trial court thereafter continued its previous temporary custody and visitation order, and ordered that visitations be supervised pending clarification of Mr. Norton’s probation order. Once again, the matter was continued for further hearing at a future date.
On February 13, 2006, the court held an emergency child custody hearing. At this hearing, Mr. Norton again sought full custody of A.N., this time on the basis that Ms. Branham was incarcerated and A.N. was in the physical custody of a caretaker, Misty Marshall. At the conclusion of this emergency custody hearing, the trial court placed A.N. in the temporary custody of Misty Marshall, and ordered the parents to contact Hoopa Human Services to set up visitation with the child.4 In its order, the trial court noted that it had concerns about whether Ms. Branham required residential treatment for substance abuse issues. The trial court also noted that it had received a “Court Order” from Mr. Norton’s Humboldt County probation officer clarifying that the terms and conditions of Mr. Norton’s probation did not include a prohibition of contact with Mr. Norton’s own children. 5 The trial court determined that as a result of this clarification, “the [tribal] court cannot consider Mr. Norton a risk to his child based on his conviction.” Nevertheless, the trial court did not award Mr. Norton custody of the child, and the matter was again continued for hearing at a future date.
The court next reviewed the child custody situation on February 27, 2006, at which hearing both parents appeared. Ms. Branham requested that A.N. be returned to her custody.
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 24
The hearing was continued by the court for trial on March 17, 2006.6 A.N. was left in the temporary custody of Misty Marshall pending the March trial date. The trial court left in effect all prior temporary orders not inconsistent with the change in custody to Ms. Marshall. The trial court again noted a concern about the suitability of Ms. Branham as a custodial parent because she had not completed a residential program to address substance abuse issues.
Both parents appeared on March 17, 2006 for trial, and each for the first time was represented by a Spokesperson. The trial court judge did not take testimony at the hearing, but did meet with counsel in chambers and off the record. The March 17, 2006 trial date was thereafter continued to April 6, 2006.
Although testimony was apparently taken and argument had at a hearing on April 6, 2006, the trial court did not issue a written order following that hearing. The trial court clerk’s abbreviated hearing notes for the hearing refer to another “in chambers” meeting between the trial court judge, the parties and their Spokespersons, and to an oral ruling from the bench concerning visitation dates for Ms. Branham and for Mr. Norton. The specifics of the oral order are not clear from the clerk’s notes. The matter was set for review on April 20, 2006.
A hearing was held on April 20, 2006. Following the hearing, the court issued an order referring to the April 20 hearing as a “review before Trial date.” In this order, the trial court determined that as a matter of law, the trial court had authority to order an evaluation of both parents.7 However, the trial court did not order that the parties be evaluated. A.N. was again left in the temporary custody of Misty Marshall and all previous orders of the court not inconsistent with the temporary custody order were left in place. The matter was continued for a pretrial conference on June 8, 2006, and a new trial date of June 21, 2006 was ordered.
On April 27, 2006, the court issued a written order clarifying the visitation rights of the parties pending the next court hearing. Apparently the clarification was to an earlier oral order that is not included in the record on appeal. In its clarification order, the trial court stated that both Mr. Norton and Ms. Branham were to have unsupervised visits with A.N. during certain specified times, and that the parents had been ordered to not speak ill of the other parent in the presence of the child, and not to use, possess or be under the influence of illegal drugs or alcohol.
The parties again came before the court on June 8, 2006 for further hearing. The trial court heard from the Spokespersons for the parties, but apparently did not take evidence at the
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 25
hearing. The trial court set a new trial date of July 12, 2006, and reaffirmed that custody of the child would remain temporarily with Misty Marshall.8
Another hearing was held, this time entitled a “trial on child custody,” on July 12, 2006. Both parents appeared and were represented by a Spokesperson. The court thereafter issued an order entitled “Custody Order Following Hearing (7/12/06)”. The order removed the child from the custody of Misty Marshal and placed A.N. in the joint legal and physical custody of both parents, in a “50/50 split.” Exchanges were ordered to occur at the Hoopa Valley Tribal Police station. Among other provisions, the parenting plan order removed all restrictions concerning who could be present when the child was in either parent’s custody.
Although the trial court’s Custody Order Following Hearing (7/12/06) appears to comply in major part with the provisions of the Hoopa Valley Domestic Relations code governing parenting plan orders, see Tribal Code Section 14A.E and note 3, supra, the order is not designated as a final decree or as a modification of a final decree. In fact, the order scheduled yet another review hearing on the child custody matter for January 22, 2007.
On October 9, 2006, another hearing was held in response to Mr. Norton’s motion to modify the trial court’s previous custody order. Mr. Norton again sought sole legal and physical custody of A.N. and he requested that visitations with Ms. Branham be supervised. Mr. Norton’s petition for modification also sought an order enjoining Hoopa Human Services from “involving themselves in (the) case except under a strict interpretation of Title 14.”9
The trial court’s order following the October 9, 2006 hearing again is not designated as a final decree, a final parenting plan order or a modification of a final decree or parenting plan order. The order does not set out the requirements for a permanent parenting plan as required by the tribal code, but does schedule the child custody dispute for a review hearing in October 2007.
It is the trial court order following the October 9, 2006 hearing that Appellant Pamela Branham appeals.
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 26
Ms. Branham alleges error as follows:
|
1. |
The trial court judge was biased and should have recused himself. |
|
2. |
Appellant requested a set-over at the October 9, 2006 hearing in order to obtain a new Spokesperson, which request was refused. |
II. Standard of Review
Decisions by the trial court are divided into three categories for purposes of the standard of our review: questions of law (reviewable de novo); questions of fact (reviewable for clear error); and matters of discretion (reviewable for “abuse of discretion”). Hoopa Valley Housing Authority v. Doolittle, 7 NICS 45, 47 (Hoopa Valley Tribal Ct. App. 2005); Dodge v. Hoopa Valley Gaming Commission, 7 NICS 51, 54 (Hoopa Valley Tribal Ct. App. 2005).
III. Decision
We first consider whether, as a matter of law, the trial court’s October 9, 2006 Order Following Custody Hearing, is an order that may be appealed. Child custody disputes under the Hoopa Valley Domestic Relations Code are governed by the civil procedures provisions set out in Title 2 of the Hoopa Valley Tribal Code.10 Hoopa Valley Tribal Code Section 14A.4.20. Hoopa Valley Tribal Code Section 2.6.01(A) provides as follows:
Appeals
(A) Within twenty (20) days from the entry of a final judgment, or judgment on a dispositive motion, a party dissatisfied with the judgment may file a notice of appeal with this court.
To determine whether the October 9, 2006 Custody Order is either a “final judgment” or a “judgment on a dispositive motion” for purposes of appeal, we look to the original Petition and the relief requested.11
As described above, this case originated with a Petition filed by Appellee/Petitioner Norton seeking both a temporary and ultimately a permanent parenting plan with respect to the
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 27
minor child A.N. Also as described above, the trial court in this matter has never entered an order or a decree setting forth a permanent parenting plan.12 Rather, the trial court has held a series of hearings over a period of more than twelve months, each of which resulted in either a temporary custody order with a future review hearing date, or in a modification or clarification of a previous temporary custody order, also with a future hearing date.13
A final judgment is one which leaves nothing open to further dispute and which sets at rest the cause of action between the parties. Cf. Hoopa Valley Tribal Code, Title 3, Rule 29 (“In all civil cases, judgment shall consist of an order of the Court awarding money damages to be paid to the injured party, or directing the surrender of certain property to the injured party, or the performance of some other act for the benefit of the injured party.”); Rule 29(a) (“In non-jury matters, the Court, after the submission of all evidence, will enter its judgment in conformity with the evidence in open court, or at the judge's discretion, within 15 days from the time of the end of the presentation of all testimony and evidence.”); Hoopa Valley Tribal Council v. Hoopa Valley Tribal Court, 4 NICS App. 181, 181-82 (Hoopa Valley Tribal Ct. App. 1997). With regard to the October 9, 2006 order on appeal, the content of the order makes clear that the order is not intended finally to settle the child custody dispute before the court. Rather, the order clearly provides that the dispute is “set for review hearing on October 1, 2007.” Thus the order was not intended to completely settle the child custody dispute, but was another in the long line of temporary orders regarding the parenting plan that was before the trial court.
In the absence of a final permanent parenting plan order, the next consideration is whether the October 9, 2006 “Order Following Custody Hearing” may be considered a “judgment on a dispositive motion” for purposes of appeal. A “judgment on a dispositive motion” would be a judgment that effectively and finally “disposed of” the dispute between the parties. See Hoopa Valley Tribal Code, Title 3, Rule 29(c)(1) (“If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against the party and may grant a motion for judgment as matter of law against that party with respect to a
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 28
claim or defense that cannot under the controlling law be maintained without a favorable finding on that issue. Motions for judgment as a matter of law may be made at any time before submission of the case to a jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.”) For the reasons described above, we must also hold that on its face the October 9, 2006 Order Following Custody Hearing belies such construction. The order not only provides that the court will review the child custody dispute in a future hearing, but also provides that Appellant may seek modification of the temporary parenting plan order at an earlier date, under certain conditions.
We therefore hold that the October 9, 2006 Order Following Custody Hearing is neither a final judgment nor a judgment on a dispositive motion.14
Despite our holding that none of the existing orders of the trial court in this matter constitute a permanent parenting plan or a final judgment or decree settling the custody dispute between the parties for purposes of appeal, it would constitute an injustice to the parties and would not be in the best interests of the minor child involved to allow the trial court’s current practice of entering continuous temporary parenting plans to continue without limitation. In addition, this practice runs counter to the policy set forth in H.V.T.C. 14.4.40(E)(6) that “ [t]he objectives of any proposed or ordered parenting plan shall be * * * [t]o encourage parents to meet their responsibilities through the parenting plan rather than by relying on Tribal Court intervention.” We therefore further hold that, interpreting the Hoopa Valley Tribal Domestic Relations Code in its entirety and as a whole, the intent of the domestic relations code is that the trial court hold a trial on the merits of a Petition for a Parenting Plan and enter an appealable final judgment or decree setting forth the Permanent Parenting Plan within a reasonable amount of time after the filing of a Petition for Permanent Parenting Plan. See Hoopa Valley Tribal Code §§ 14A.4.10 (The overriding policy of the code is the best interest of the child.); 14A.4.30 (Requiring the trial court to enter a parenting plan on the basis of the best interests of the child.)
Although we do not set out here a specific deadline or timetable for future similar cases, we hold that the trial court in this particular matter has exceeded the reasonable amount of time in which hearing on the Petition should be held and a final judgment or decree should be entered.
IV. Conclusion
For the above reasons, this Court holds that the trial court’s October 9, 2006 Order Following Custody Hearing is not an appealable order under Hoopa Valley Tribal Code, Title 1,
8 NICS App. 20, IN THE MATTER OF A.N. (June 2007) p. 29
§ 1.4.01(a), and Title 3, Rule 61, and Appellant’s appeal is therefore DISMISSED. FURTHER, this matter is REMANDED for trial on the merits and the entry of a final judgment or decree on the Petition for a Permanent Parenting Plan.
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.
This request is not contained in the record on appeal.
The trial court did not define what it meant by the term “legal custody” and the term is not defined in the Hoopa Valley Domestic Relations Code.
As relevant here, the Hoopa Valley Tribal Code defines a "Permanent Parenting Plan" as “a plan for parenting the child, including allocation of parenting functions, which plan is incorporated in any final decree or decree of modification in an action for * * * child custody.” Hoopa Valley Tribal Code Section 14A.1.50(G). The trial court’s order following the September 8, 2005 hearing is not designated as a final decree or a modification of a final decree, and also does not include the provisions required by Hoopa Valley Tribal Code. Specifically, Hoopa Valley Tribal Section 14A.4.40 (E) provides as follows:
(E) The contents of any proposed or ordered parenting plan shall include:
(1) Dispute Resolution. A process for resolving disputes, other than Tribal Court action, shall be provided unless it is beyond the financial means of the parties, or precluded or limited by the Tribal Court as provided herein. The dispute resolution process may include counseling, mediation, arbitration or other method agreed upon by the parties. In the dispute resolution process:
(a) Preference shall be given to carrying out the parenting plan;
(b) The parents shall use the designated process to resolve disputes relating to implementation of the plan, except those related to child support, unless there is an emergency;
(c) If the Tribal Court finds that a parent has used or frustrated the dispute resolution process without good reason, the Tribal Court may impose financial sanctions against that parent; and
(d) Both parents have the right of court review of the dispute resolution process.
(2) Decision Making Authority. The parenting plan shall allocate decision-making authority to one or both parents regarding the children's education, health care, and religious or spiritual upbringing. The plan shall state that:
(a) Each parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent, including emergency decisions affecting the health and safety of the child; and
(b) When mutual decision-making is designated but cannot be achieved, the parents shall make a good faith effort to resolve the issue through the dispute resolution process.
(3) Residential Provisions. The residential schedule shall designate in which parent's home each child shall reside on given days of the year, including provisions for holidays, birthdays, vacations and other special occasions.
In addition, the order schedules a “continuation” of the “matter” to a future date. It therefore appears that this order does not constitute the trial court’s final parenting plan decree. Rather, the order appears to be an interim or temporary parenting plan order, although it is not specifically designated as such. See Hoopa Valley Tribal Code 14A.4.50; Hoopa Valley Tribal Code Section 14A.1.50(K) (defining a "Temporary Parenting Plan" as “a plan for parenting of the child pending final resolution of any action for * * * child custody.)
We find no authority in the Hoopa Valley Tribal Code authorizing placement of a child with someone other than a parent during a civil proceeding under the provisions of Hoopa Valley Tribal Code Section 14A.4, which is the Tribe’s domestic relations code. Presumably, the trial court determined after the emergency hearing on February 13, 2006, that neither parent was fit to be awarded physical custody of A.N., even on a temporary basis. Yet, the trial court did not invoke the child welfare provisions of the Hoopa Valley Tribal Code and did not involve the Tribal Human Services Department. Nor did the trial court make the requisite findings regarding the removal of a child from the custody of a parent that are required under the Tribe’s child welfare code. See Hoopa Valley Tribal Code, Title 14 Sections 1.4.4 and 1.5.19.
Neither the Humboldt County Juvenile Court Probation order nor the clarifying “court order” mentioned by the trial court in its order following the February 13, 2006 emergency custody hearing are contained in the record on appeal. The record does contain a copy of a letter dated March 14, 2006 from William Nalty, Humboldt County Deputy Probation Officer II, advising the Tribal Court Judge that Mr. Norton’s probation and wardship in Humboldt County had been terminated.
Apparently, the trial court judge did not take testimony at the February 27, 2006 hearing. Instead, the trial court judge attempted to mediate a settlement between the parents. The mediation was performed in chambers and was unsuccessful.
It is apparent from the order following the April 20, 2006 hearing that the trial court had ordered an evaluation of the parents. However, the record on appeal does not contain any reference to that court order.
In addition, the trial court amended a previous order (also not contained in the record on appeal) that the parents be evaluated by Hoopa Human Services, noting that Human Services had not performed the evaluation and had requested a more detailed directive on the issues to be addressed in the evaluation. It is not clear why the trial court elected to not provide a more detailed directive as requested by Hoopa Human Services. The trial court order also determined that neither the trial court, the parents nor Hoopa Human Services had the financial means to pay for the court-ordered evaluations of the parents, as Hoopa Valley Human Services June 2, 2006 response letter to the trial court appeared to require. It is not clear why the trial court did not attempt to enforce the tribal code obligation of Hoopa Human Services to conduct the court-ordered evaluations in child custody disputes. See Hoopa Valley Tribal Code, Section 14A.4.40(J)(2). It is likewise not clear why this continued state of affairs still did not trigger a referral by the Court to Hoopa Valley Human Services under the Tribe’s Child Welfare Code.
Ms. Branham had previously sought a modification of the trial court’s previous order regarding visitation. The record on appeal does not indicate that a hearing was held or scheduled on her motion.
The Court Rules set out at Title 3 of the Hoopa Valley Code also govern these proceedings. See H.V.T.C. 3.1 Rule 2. (“These rules are applicable to all proceedings relating to the Constitution and Bylaws of the Hoopa Valley Tribe, Law and Order Code of the Hoopa Valley Tribe; other statutes, motions and resolutions passed by the Hoopa Valley Tribal Council; * * *”)
This Court accepted this case determining that the appellant had perfected her appeal under H.V.T.C. 3.12 Rule 62. However upon further review, this court deems it necessary to assess whether the October 9, 2006 order is a final judgment or otherwise appealable.
We note that although the trial court appears to have scheduled this matter for trial on several occasions, it is difficult to determine from the record whether a trial on the merits was ever held. We further note that H.V.T.C. 3.6 Rule 13 requires all trials to be conducted in open court; that H.V.T.C. 3.6 Rule 18 requires that all testimony in a trial be taken orally in open court; that H.V.T.C. 3.7 rule 22 requires the Court “to find facts specifically and state separately its conclusions of law thereon, and further to enter its judgment in accordance with the provisions of H.V.T.C. 3.8 Rule 34; and that H.V.T.C 3.8 Rule 28 requires the trial judge entering a verdict to do so either in open court or within 15 days “from the time of the end of the presentation of all testimony and evidence.” There is no exception in these Trial Court Rules for trials under the domestic relations code.
We would note that there are evidentiary problems with the record before us. Over the course of this case, custody has switched among parents, visitation has been denied or suspended and custody even awarded to a non-party without any requisite findings identifying the evidentiary record, testimony or documentation justifying such modifications. The trial court appears to have based its decisions on broad assertions and many unrecorded in-chambers discussions with the parties. Such practice by the trial court does not create an adequate record for appeal.
The trial court appears to treat this case as a quasi-dependency in the way it has scheduled further review of its decisions. Such procedures are not envisioned within the domestic relations code or the child protection code. It is understandable how one might be concerned for the child’s safety, given the issues that both parents have or have had, that may impact their ability to parent this child. Nonetheless, the court does not retain jurisdiction in a custody matter indefinitely as was done here, nor can a custody petition morph into a child protection case without filing a new petition and complying with the terms of the child protection code.