IN RE: WELFARE OF C.B.

8 NICS App. 42, IN RE: WELFARE OF C.B. (January 2008)

IN THE CHEHALIS TRIBAL COURT OF APPEALS

CHEHALIS INDIAN RESERVATION

OAKVILLE, WASHINGTON

In Re the Welfare of: C.B.

C.S., Appellant,

M.M., Appellee.

No. CHE-J-4/07-104 (January 17, 2008)

SYLLABUS^*

Trial court issued an order awarding guardianship of a minor based in part on a report prepared for the court that was not provided to the parties until immediately before the hearing on the merits. Court of Appeals holds that because (1) the code does not require parties to be provided with such reports; (2) the parties were in fact provided the report and given the opportunity to respond to it; and (3) other evidence in the record supported the court’s ruling, there was no deprivation of due process or abuse of discretion by trial court. Trial court order affirmed.

Before: Lawrence Numkena, Chief Justice, Lorintha Umtuch, Justice, Lisa L. Atkinson, Justice.

Appearances: Randal B. Brown, Attorney for Appellant C.S.; M.M., pro se.

OPINION

Numkena, C.J.:

This matter came before the Chehalis Tribal Court of Appeals on December 14, 2007 pursuant to Appellant’s Notice of Appeal filed on September 5, 2007. Appellant appeals the Trial Courts Orders Denying Guardianship and Granting Guardianship filed on August 30, 2007.

8 NICS App. 42, IN RE: WELFARE OF C.B. (January 2008) p. 43

JURISDICTION

The Chehalis Court of Appeals has jurisdiction over C.B., an Indian youth who is a descendant of the Chehalis Tribe, Quinalt Tribe, and Puyallup Tribe, residing within the exterior boundaries of the Confederated Tribes of the Chehalis Reservation, as well as subject matter jurisdiction pursuant to Chehalis Title 17.

ISSUE ON APPEAL

Whether Appellant’s allegation of procedural error by the trial court constitutes denial of due process and abuse of judicial discretion is supported by facts on the record.

STANDARD OF REVIEW

This Court’s prior decisions establish that an abuse of discretion does not exist when the trial judge has followed proper procedures and there is substantial evidence in the record that supports each of the judge’s findings of fact. If substantial evidence in the record supports the judgment and the judge has followed procedures and applied the law correctly, the judgment must be affirmed. See, e.g., Fern v. Torres, 6 NICS App. 200, 201 - 203 (Chehalis Tribal Ct. App. 2004)

DISCUSSION

On April 16, 2007, the Appellee filed a Guardianship Petition. On May 21, 2007, the Appellant filed a Guardianship Petition.

A Guardianship Report was submitted to the court dated August 17, 2007 pursuant to Title 17, § 17.18.030.

A hearing on the petitions was held on August 22, 2007.

The Appellant stated the report was given to her five minutes before the hearing with a report attached from the internet on Reactive Attachment Disorder that is non-specific to Native American children. The Appellant contends the author of the report was not present in court which denied her the opportunity to cross examine the author of the report and that the judge placed a great deal of weight on the report. The Appellant also contends there was not adequate time to prepare for the report. The Appellant argued that the standard for child custody concerns and due process considerations should have been followed pursuant to Fern v. Torres, 6 NICS App. 200 (Chehalis Tribal Ct. App. 2004), and In Re: Custody of B.S., 6 NICS App. 113 (Chehalis Tribal Ct. App. 2003).

8 NICS App. 42, IN RE: WELFARE OF C.B. (January 2008) p. 44

Upon review of the record this court finds the Appellant was afforded due process with an opportunity to be heard. Neither party requested a continuance and the Appellant did not ask the court for a continuance or to subpoena the author of the report. The author of the report met with all parties. Title 17, § 17.18.030 Guardianship Report only requires the filing of a report with the court within two days before a guardianship hearing. There is no statutory requirement that the guardianship report be provided to any of the parties. Although the code only requires a report be filed with the court, in future cases it would be appropriated to improve fairness and openness of proceedings to allow parties to review non-confidential information in advance.

Title 17, § 17.18.010, (d) states “In appointing a general guardian of a youth, the court is to be guided by what appears to be for the best interests of the youth in respect to the youth’s general welfare.” Upon review of the record this court finds the trial court provided the parties with the report and allowed the parties an opportunity to respond. There was no rebuttal to the report or request to cross examine the author.

Finally, this Court, in coming to this final determination, did not take into consideration documents submitted by the Appellee purporting to be Appellee’s Brief as ordered in our scheduling order, as those documents were merely an attempt to introduce evidence rather than a brief to respond to the merits of Appellant’s appeal.

This court finds there is no violation of due process or abuse of judicial discretion. There is substantial evidence in the record, including, but not limited, to the studies complained of by Appellant, supporting the trial court’s orders.

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.