9 NICS App. 1, IN THE MATTER OF E.M. (January 2009)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

In the Matter of E.M., a minor.

Minor’s Mother, Petitioner and Appellee,

v.

Minor’s Father, Respondent and Appellant.

No. JC-07-027/A-08-001 (January 5, 2009)

SYLLABUS^*

Separated parents filed multiple competing petitions and motions concerning custody and visitation of their minor child, an enrolled member of the Tribe. The Chief Judge of the trial court held multiple hearings and issued multiple orders during a three month period, the last of which indicated the father was to have 50% custody, but continued the matter in order to review a supplemental pleading filed by the mother on the day of the hearing. Five days later, a pro tem judge hearing the matter in the absence of the Chief Judge issued a decision adverse to the father, who then filed this appeal. Court of Appeals holds that (1) the decision of the pro tem judge, though not a final order, is appealable because it has the effect of a judgment on a dispositive motion that in all practical respects establishes the rights of the parties; and (2) the pro tem judge abused his discretion by issuing an order that effectively reversed the prior findings of fact and conclusions of law of the Chief Judge in the proceeding without establishing that the prior findings were clearly erroneous or setting forth the evidence supporting different findings. Trial court order reversed and remanded, with additional direction to the trial court to adhere to the procedural requirements of the Tribe’s Domestic Relations Code.

Before:            Michelle Demmert, Chief Justice; Eric Nielsen, Justice; Suzanne Ojibway Townsend, Justice.

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 2

OPINION

Ojibway Townsend, J.:

I. Introduction

Appellant, the minor’s father, appeals from a February 13, 2008 order entitled “Order After Hearing (02/12/2008).” The order was entered by the trial court in a parenting plan dispute filed by Appellee, the minor’s mother. The mother sought sole decision making authority for the minor child of the parties and a limited visitation schedule for father.

The trial court’s February 13, 2008 order granted “primary physical custody” to the mother and “joint legal custody”. The father was granted visitation on Sunday, Monday and Tuesday from 9 A.M. to 4 P.M., and certain holiday visits.

For the reasons set forth below, we REVERSE and REMAND to the trial court for further action in accordance with this opinion.

II. Factual Background and Procedural History

The parties are the parents of the minor and were never married. Both parties are enrolled members of the Hoopa Valley Tribe, as is their minor child.

This case has a tortured history, which is necessary to explain in some detail. In November 2007, the mother filed a “Petition for and Affidavit in Support of Parenting Plan” in Hoopa Valley Tribal Family Court, seeking both a temporary and permanent parenting and visitation plan. The mother filed her 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 her Petition, the mother requested the court order E.M. reside with her and that she have sole decision making authority in the areas of E.M.’s education, health care, and religious or spiritual upbringing, with weekend visitation for the father. The mother also filed a Motion and Declaration for Restrictions in Parenting Plan, alleging that the father’s use of drugs, alcohol or other substances impaired his ability to parent and that the father had a history of domestic violence. The restriction the mother requested was that E.M. reside solely with her and that she be the sole decision maker for the child in the areas mentioned above.

The father opposed the mother’s proposed parenting plan, and filed a response on November 7, 2007. In his response, the father accepted the schedule proposed by the mother (E.M. would live with the father each week from 6:00 p.m. Friday through Sunday at 5:00 p.m. with additional time on certain holidays) and sought equal access to the child under any

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 3

temporary parenting plan. The father also proposed E.M.s residence be with both parents and they share decision making authority in the areas of education, healthcare, and religious or spiritual upbringing. The father proposed mediation for the remaining issues regarding where the child would spend holidays. The father also filed a Motion and Declaration for Restrictions in Parenting Plan wherein he alleged that the mother withheld access to the child from him for a protracted period without good cause. As a remedy, the father sought an immediate order for “50% custody.” He also filed a motion denying his ability to parent E.M. was impaired by substance abuse and that he had a history of domestic violence. The father acknowledged one instance about two years prior wherein domestic violence had been alleged, and noted that he had completed a court-ordered anger management class as a result. He further alleged there was never any physical violence, and that to the extent mental abuse existed in the relationship, it was mutual.

The Hoopa Tribal Court, the Honorable Judge Blake presiding, held a hearing on temporary custody and entered an order on November 20, 2007 awarding shared legal custody of the child to the parties, with sole physical custody to the mother. A visitation schedule was set out for the father.¹

On November 21, 2007, the court ordered a December 18, 2007 confidential hearing on the Motions for Restrictions in Parenting Plan. On November 26, 2007, the father filed a Petition for Modification of the Child Custody Order entered on November 20, 2007, seeking to change his Friday visitation with the child to Tuesday, due to a change in his work schedule. After the December 18, 2007 hearing, the trial court ordered both parents to submit to drug and alcohol assessments. The court again ordered sole physical custody to the mother, with visitation for the father from 12:00 P.M. to 6 P.M. on Tuesdays, Wednesdays and Sundays, and additional daytime visitation on Christmas Eve and Christmas Day. The matter was set for another hearing on January 7, 2008, on the parties’ motions to restrict the parenting plan.

After the January 7, 2008 hearing, the trial court entered an order granting an increase in visitation hours to the father. The court left in place the prior orders granting temporary joint physical custody and sole legal custody to the mother. In addition, the court ordered the child be exchanged for visitation in front of the Hoopa Valley Police Department and allowed the father’s

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 4

mother to pick up the child if the father could not. The trial court’s order contained no findings with respect to any of the issues raised in the motions to restrict the parenting plan.²

The parties then filed competing motions to modify the order. The father sought to clarify and add persons who could pick up the child and require that the child be transported in a proper child safety seat. The mother objected to the part of the order that allowed the father’s mother to pick up the child, arguing that the father would have to prove that he was unavailable to pick up the child before his mother could take on that task. The father also filed a motion requesting to share custody of E.M. and for a decision about who could claim E.M. for tax purposes and for protection of E.M.’s per capita trust fund. He further requested the right to provide child care as a first option when the mother could not care for the child and asked for a holiday visitation schedule. In addition, the father asked for resolution of the issues raised in the motions to restrict the parenting plan. The court scheduled a hearing for January 11, 2008.]

After the hearing on January 11, 2008,³ the trial court ordered that only the parties’ grandmothers could be involved in the exchange for visitation purposes. The mother and father were also ordered to arrange counseling. The Court scheduled a hearing on “the parenting plan” for February 4, 2008.

On February 5, 2008, the mother filed a response to the father’s January 9, 2008 Motion to Modify. The father filed a response to the mother’s response on February 6, 2008.

On February 7, 2008, the court held another hearing. At the hearing, the court heard testimony about the child’s medical issues and the status of the tax exemption claims for the child. Judge Blake entered an oral finding that the father’s “requests are not unreasonable.” (02/07/08 Hearing Transcript, at page 28.) Judge Blake further noted that there would have to be “good cause shown why [the father] cannot have 50 percent custody,” and that he had not seen such good cause. Id. In addition, the court stated the hearing was “just to make certain that this child is not going to be at risk.” Id. When Judge Blake began to announce what was apparently to be his final order, the spokesperson for the mother interrupted to offer an unnamed document

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 5

into evidence. Judge Blake thereupon re-scheduled the matter to February 12, 2008 before a different judge. However, Judge Blake clearly stated that based on the evidence submitted to date, he had found nothing to prevent the father from being granted the shared custody the father sought. Id. at 30.⁴ On February 12, 2008, the mother filed a pleading entitled “Supplemental Petition Motion for Primary Physical Custody of Minor-at-Issue.” In the Supplemental Petition, the mother argued because of E.M.’s age (two years) and stage of development, it would be harmful to grant joint custody. The Supplemental Petition contained allegations about the child’s behavior after visits, and referred to an article (attached to the Supplemental Petition) entitled Judicial Oversight of Parental Visitation in Family Reunification Cases.⁵

Judge Henry presided at the February 12, 2008 hearing.⁶ It appears from the record that Judge Henry allowed the parties to address anew many of the issues that had been the subject of prior hearings before Judge Blake, including: the health issues of the child; the domestic violence allegations; the living situation of the father; and issues relating to the allegations of substance abuse by the father.⁷ In addition, the Court heard argument about the article attached to the Supplemental Petition.⁸

On February 13, 2008, Judge Henry issued an order entitled “Order After Hearing (2/12/08)” granting joint legal custody to the parties, with primary physical custody to the mother.⁹ Judge Henry also ordered a “visitation schedule” for the father and entered decisions about tax returns for 2007 and 2008; distribution of per capita trust funds; who could pick up the child for visitation; and granted the father a right of first refusal for non-employment related child care. Judge Henry’s order 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 include all the provisions required in a permanent parenting plan under Section 14A.4.40(E) of the Hoopa

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 6

Valley Tribal Domestic Relations Code and does not set a hearing date for a final determination in this matter.

The father appeals from the February 13, 2008 order. The father alleges the trial court ignored Judge Blake’s previous oral findings that joint legal and physical custody of the child are in the best interests of the child.

III. 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, No. A-04-009 at 3 (Hoopa Valley Tribal Ct. App. 2005); Dodge v. Hoopa Valley Gaming Commission, No. A-02-002 at 3 (Hoopa Valley Tribal Ct. App. 2005). Matters of discretion are those that are not controlled by statute. See, e.g., Pierce v. Underwood, 487 U.S. 552, 558 (1988).¹⁰ The abuse of discretion standard is highly deferential to the lower court. See, e.g., Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000) (“Normally, the decision of a trial court is reversed under the abuse of discretion standard only when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.”). Abuse of discretion “does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge ….” Black’s Law Dictionary, at 10 (6th Ed. 1990).

While courts have defined “abuse of discretion” in a number of ways, there is broad agreement that a court abuses its discretion when it acts unreasonably or exercises unsound judgment in the exercise of its discretion. See Hoopa Valley Tribal Court v. Taylor, 7 NICS App. 3, 5 (Hoopa Valley Tribal Ct. App. 2005) (abuse of discretion involves a “clear error of judgment”), In the Membership of Julie Bill Meza, et al., 7 NICS App. 111, 114 (Sauk-Suiattle Tribal Ct. App. 2006) (abuse of discretion requires finding that trial court’s actions “were manifestly unreasonable, exercised on untenable grounds, or for untenable reasons”); Ravelo Monegro v. Rosa, 211 F.3d 509, 511 (9th Cir. 2000) (court abuses its discretion “by striking an unreasonable balance of relevant factors”), Calderon v. Thompson, 523 U.S. 538, 539 (1998) (court abuses its discretion “[u]nless it acts to avoid a miscarriage of justice”); Black’s Law Dictionary at 10 (6th Ed. 1990) (abuse of discretion is “synonymous with a failure to exercise a sound, reasonable, and legal discretion”).

IV. ANALYSIS

A.    The Order After Hearing (2/12/08) is an appealable order.

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 7

We first consider whether, as a matter of law, the trial court’s February 13, 2008 Order After Hearing (2/12/08) is either a “final judgment” or a “judgment on a dispositive motion” for purposes of appeal. Hoopa Valley Tribal Code § 2.6.01.

The February 13, 2008 order is not designated a final order, and it does not contain all the provisions for a final parenting order required by the Hoopa Valley Tribal Domestic Relations Code. The order also does not set a hearing date on the parenting plan and custody of the child. The transcript makes clear that Judge Henry believed the hearing involved the recent motions filed by both parties seeking to modify Judge Blake’s earlier temporary orders. (02/07/08 Hearing Transcript, at page 1.) The transcript also reveals that Judge Henry heard unsworn testimony on a pleading the mother filed and served the day of the hearing, entitled “Supplemental Petition Motion for Primary Physical Custody of Minor-at-Issue.”¹¹

As this Court has stated “[a] final judgment is one which leaves nothing open for future dispute and which sets at rest the cause of action between the parties.” In the Matter of A.N., No. JC-05-021/A-06-006, Slip Op. at 10 (Hoopa Valley Tribal Ct. App. 2007). We hold that the February 13, 2008 order is not a final order, but another in a line of temporary orders regarding the parenting plan.

A “judgment on a dispositive motion” is a judgment that effectively and finally disposes of the dispute between the parties.” Hoopa Valley Tribal Code, Title 3, Rule 29(c)(1); In the Matter of A.N., No. JC-05-021/A-06-006, Slip Op. at 11 (Hoopa Valley Tribal Ct. App. 2007). We hold that the order is a “judgment on a dispositive motion” because, in the order, the trial court ruled as follows:

Petitioner Mother has carried her burden of proof by a preponderance of the evidence that it is adverse to the best interests of the child to share custody 50/50. In making this finding, the Court does not rely on a single issue but is making its finding based on the totality of the evidence and circumstances presented including but not limited to:

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 8

Order After Hearing (2/12/08), at 1.

By virtue of these findings, the trial court made a decision that was critical to what the father ultimately sought in the final parenting plan, which was to share decision making authority and residential provisions that would allow the father to have E.M. live with him on a regular basis. The finding that “joint custody” was not in the best interests of the child goes directly to the heart of the dispute between the parties on the mother’s motion for Restriction in Parenting Plan and is dispositive of that issue. We therefore hold that the February 13, 2008 Order After Hearing (2/12/08) is a judgment on a dispositive motion for purposes of appeal.

B.    The Trial Court Abused Its Discretion

Title 14A.4.40(B) of the Hoopa Valley Tribal Domestic Relations Code (“the Code”) provides that before entering a parenting plan, the Court shall determine whether one parent is entitled to preference in the awarding of custody. Custody preference must be measured by “the best interests of the child” standard.

Title 14A.4.10 of the Code provides that the “tribe recognizes the fundamental importance of the parent-child relationship and that the relationship between the child and each parent should be fostered unless inconsistent with the best interests of the child.”

Section 14A.4.40(H) sets forth reasons the Tribal Court may restrict or limit any provision of a parenting plan, in relevant part as follows:

(1)    Willful abandonment * * * ;

* * *

(3)    A history of acts of domestic violence;

* * *

(5)     Neglect or substantial non-performance of parenting functions;

* * *

(7)    Long term impairment resulting from drug, alcohol or other substance abuse that interferes with the performance of parenting functions;

* * *

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 9

(8)    Withholding from the other parent access to the child for a protracted period without good cause;

* * *

The trial court scheduled a series of four hearings on the parenting plan petition originally filed by the mother. The November 19, 2007 hearing resulted in a November 20, 2007 temporary parenting plan order that included a “visitation” schedule. The December 18, 2007 hearing was specifically scheduled to hear testimony on the cross motions for Restriction in Parenting Plan, and resulted in another temporary order dated December 12, 2007. The court stated that further information was needed before ruling on the motions and set another hearing. The January 7, 2008 hearing was held to determine whether to amend the temporary custody order and whether restrictions on either parent were necessary. The court orally found that no restrictions were necessary and increased visitation for the father. The January 11, 2007 hearing was again for the purpose of hearing new motions to modify the temporary custody order. None of these hearings resulted in findings that would support restrictions on the father’s request for shared decision making and shared living arrangements for the child under the requirements in Section 14A.4.40(H). Rather, Judge Blake’s rulings merely set out and then amended temporary custody orders and “visitation” schedules.

It appears to this Court that the February 12, 2008 hearing was held for the sole purpose of allowing the court to review a document proffered at the end of the February, 7, 2008 hearing. No further evidence was anticipated or required, and indeed, no sworn testimony was heard.¹² The article provided to Judge Blake at the February 7, 2008 was the only matter left for the Court to consider and was of no obvious relevance to the proceeding at issue.

The February 13, 2008 order sets out factual findings. However, the five factual findings made by Judge Henry differ radically from the oral findings made by Judge Blake after numerous prior hearings.

The lack of a clear written record of his earlier findings was a failure on the part of Judge Blake, a disservice to the parties, and likely made it difficult for Judge Henry. It was incumbent upon Judge Henry, however, to determine the exact purpose of the February 12, 2008, hearing and the nature of Judge Blake’s prior oral findings.

Although Judge Blake did not set out his findings from the various hearings in his written orders, in his oral findings Judge Blake found no basis for the mother’s allegations concerning

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 10

the father’s parenting skills.¹³ In addition, Judge Blake appears to have been satisfied that the father’s living arrangements were appropriate and he found there was no good cause shown why the father could not have 050 percent legal and physical custody. Transcript of Court Proceedings 1/7/2008, at 7, lines 4-8.; Transcript of Court Proceeding 2/7/08 at 28, lines 4-8.

Although Judge Henry’s order states he read and considered the “entire Court’s file” (sic), his findings of fact conflict with Judge Blake’s earlier oral findings. Given that Judge Henry did not preside over the hearings where testimony was heard on the facts he ultimately found and he made factual findings that differed from the oral findings based on the same evidence made by Judge Blake, who did preside at those hearings, it was incumbent upon Judge Henry to explain why the evidence supported his findings and why he found Judge Blake’s earlier findings “clearly erroneous.” See, e.g., Rule 33, Hoopa Tribal Court Rules (providing that written findings of fact should not be set aside unless clearly erroneous.) Judge Henry failed to do either, an omission that was unreasonable under the circumstances of this case. For these reasons, we hold that entry of the February 13, 2008 order constitutes an abuse of discretion.

Normally, we would simply remand the case for entry of appropriate curative findings without further comment. However, there is an additional problem this case presents that we are compelled to address. We have previously interpreted the Hoopa Valley Tribal Domestic Relations Code to require that the trial court hold a trial on the merits on a Petition for a Permanent Parenting Plan and enter an appealable final judgment or decree setting forth a Permanent Parenting Plan within a reasonable amount of time after the filing of a Petition for Permanent Parenting Plan. In the Matter of A.N., No. JC-05-021/A-06-006, Slip Op. at 12 (Hoopa Valley Tribal Ct. App. 2007). In this case, although the trial court promptly held a hearing on a petition for temporary parenting plan, and promptly scheduled a hearing on the Restrictions on Parenting motions, it failed to hold a hearing or enter an order on the motions restricting the parenting plan. It is not clear from the record whether the February 12, 2008 hearing was intended to be such a hearing. If it was intended as a hearing on the motions or trial on the merits to determine a permanent parenting plan, it was insufficient because there is nothing in the record to show it was properly noted as such and no sworn testimony was taken.

The overriding policy objective of the Hoopa Valley Tribal Domestic Relations Code is the best interests of the child. Hoopa Valley Tribal Code Section 14A.4.10. We have previously expressed our concern that it is not in the best interest of a child when the trial court presides over a series of hearings and issues temporary orders instead of conducting a formal trial and

9 NICS App. 1, IN THE MATTER OF E.M. (January 2009) p. 11

issuing a final order and permanent parenting plan as required under the Domestic Relations Code. In the Matter of A.N., No. JC-05-021/A-06-006, Slip Op. at 12 (Hoopa Valley Tribal Ct. App. 2007). It is clear that during the time the trial court delayed these proceedings, the relationship of the parents, and faith in the trial court’s ability to provide a final and fair decision, both suffered greatly. Neither of these results is in the best interests of the child. A formal trial on a permanent parenting plan and issues raised in the motions for restrictions in the parenting plan where evidence is presented and sworn testimony heard is necessary. At the conclusion of the trial, the court’s order must conform to the requirements of the Hoopa Valley Tribal Domestic Relations Code Section 14A.4.40.¹³ The trial court’s continued failure to comply with the provisions of the Hoopa Valley Code governing child custody, civil procedure and evidence is unacceptable.

V. CONCLUSION

For the reasons above, this Court holds that the trial court’s February 13, 2008 Order After Hearing is REVERSED. Further, this matter is REMANDED for prompt trial on the merits and the entry of a final judgment or decree on the Petition for a Permanent Parenting Plan and entry of such a plan.

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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.

We have previously noted that although Judge Blake uses the terms “physical custody” and “legal custody” in his domestic relations orders, the Hoopa Valley Domestic Relations Code does not define the term “legal custody”. See In the Matter of A.N., No JC-05-021/A-06-00s, Slip Op. at 2, fn 2. The Hoopa Valley Domestic Relations Code likewise does not define the term “physical custody.” In addition, the Hoopa Valley Domestic Relations Code does not speak in terms of “visitation” when referring to either parent, except in relation to a finding of domestic violence. See Hoopa Valley Tribal Domestic Relations Code, Section 14A.4.40(C)(3)and (5). To prevent confusion, the trial court should in future use the terms contained in the Code, which are “decision making authority” and “residential provisions”. See Hoopa Valley Domestic Relations Code, Section 14A.4.40(E).

The transcript from the hearing on January 7, 2008 indicates that the alcohol and drug assessments of both parents were received and reviewed by the trial court and that the assessments did not indicate that either parent had a substance abuse problem. (Transcript of Court Proceedings, dated January 7, 2008 (“January 7th Transcript”) at pages 2-4.) The court did not take evidence on any of the other outstanding issues in the Parenting Restriction Motions, which included allegations of domestic violence and allegations that contact with the child had been unreasonably withheld by the mother. When the father sought advice from the court about what he would need to demonstrate in order to obtain joint physical custody, the court advised him that he would need to obtain his own housing (apparently the father was at the time residing with his mother) and that the housing would need to be “certified by Human Services.” January 7th Transcript, at page 9.

The trial court’s order described the January 11th hearing as a hearing only on the January 9, 2008 motion for modification filed by the father. The court apparently treated the mother’s competing motion as a response to the father’s motion. It does not appear that the court heard the January 10, 2008 Motion to Modify filed by the father, nor was a separate hearing on the motion set.

Throughout the many hearings held on this matter, the trial court clearly reviewed several documents, however in no instance were those documents received into evidence, and none of the documents are part of the court file below. The same is true for the hearing on February 7, 2008. Even though the court apparently accepted a last-minute document offered by Appellee’s spokesperson for review, the document was not received into evidence, and it is not part of the formal record. Neither is the document described on the record at the hearing. In addition, although the transcripts of the various hearings before Judge Blake indicate that Judge Blake made findings on the record with respect to various issues, none of Judge Blake’s findings made their way into the orders that issued from the hearings. Such practice by the trial court does not create an adequate record for appeal.

This article is apparently the document that was submitted to Judge Blake near the end of the February 7, 2008 hearing. The article discusses parental visitation in the context of child protection proceedings, and has no apparent relevance to this case.

All hearings prior to the February 12, 2008 hearing were conducted by Judge Blake.

We note that if Judge Blake had placed his earlier findings on these issues in his written orders, Judge Henry would have known that the issues had already been decided.

There is nothing in the transcript to indicate that testimony was taken under oath at this hearing.

We note again that “joint legal custody” and “physical custody” are not terms used or defined in the Hoopa Valley Tribal Domestic Relations Code. As in prior orders in this case, the trial court did not define these terms in its order.

Federal case law “may be cited to as persuasive argument for purposes of analysis in areas where Federal or State rules are analogous to Tribal rules and Tribal case law, but will not be relied upon as precedent requiring that the Court adopt additional rules that are not a part of this code.” Hoopa Valley Tribal Code, Title 3, Rule 9.

Leaving aside the essential unfairness of requiring the father to present evidence on a petition/motion he received at the hearing itself, the pleading itself is impossible to characterize.

See, Hoopa Tribal Court Rule 2.5.13, requiring that evidence be taken under oath.

At the December 18, 2007 hearing, the court heard testimony regarding the domestic violence allegations. The court heard evidence justifying substance abuse allegations against both parties and ordered that each obtain an assessment. At the January 7, 2008 hearing, the court heard testimony from a substance abuse counselor for the mother and reviewed the substance abuse evaluation and a certificate of completion of an anger management program for the father. While the court did not specifically state whether he found or did not find a basis for restricting visitation, the court did expand the father’s visitation after review of the evidence, strongly suggesting that the court found no basis to restrict visitation under Hoopa Tribal Code 14A.4.40H.

The court should consider adopting a uniform parenting plan form for all child custody proceedings to ensure that all issues are addressed pursuant to the Section 14A.4.40 (G) of the Hoopa Valley Tribal Domestic Relations Code. The “Order after Hearing” is a grossly insufficient mechanism to define the parties’ roles and responsibilities to each other and to the child. Furthermore, it unnecessarily delays the proceedings, allows the parties to bring new motions within the original action and further confuses the issues before the court.