9 NICS App. 61, IN THE WELFARE OF FIVE INDIAN MINORS (February 2010)

IN THE PUYALLUP TRIBAL CHILDREN’S COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

In the Welfare of Five Indian Minors.

Puyallup Tribe of Indians, Appellant,

v.

S.T.S., Appellee.

No. PUY-CW-09-08-064; -065; -066; -067; -068 (February 10, 2010)

SYLLABUS^*

Children’s Court issued order returning five Indian minors to in-home placement with parents; despite previous orders finding all five children to be in need of care pursuant to tribal code, granting temporary legal custody of all five children to the tribal children’s services agency, and approving a change of placement by the agency. Court of Appeals holds (1) a memorandum order which terminates litigation on specific issues and determines the rights of the parties, even though not the final order in the case, constitutes a final order for purposes of appeal; (2) Children’s Court committed legal error by treating a pre-authorized change-of-placement as an original removal proceeding; (3) use of inaccurate form by tribal police did not convert change-in-placement to removal; (4) Children’s Court erroneously interpreted tribal code and Indian Civil Rights Act in concluding that parents’ due process rights had been violated; and (5) Children’s Court abused its discretion by ordering children to be returned to a home which the overwhelming evidence showed to be an unsafe placement. Children’s Court order vacated.

Before:            Randy A. Doucet, Chief Judge; Gregory M. Silverman, Associate Judge; Suzanne Townsend, Associate Judge.

Appearances:    Simone N. Green, Attorney for Appellant Puyallup Tribe; Chrishendra Tucker-Scruggs, Attorney for Appellee S.T.S.

OPINION

Doucet, C.J.:

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I. INTRODUCTION

This matter comes before the Puyallup Tribal Children’s Court of Appeals pursuant to a Notice of Appeal filed by the Puyallup Tribe of Indians (“Tribe”), Appellant, on June 12, 2009.¹ The Tribe challenges the return of five children to an in-home placement after the Children’s Court determined that tribal agencies violated child removal procedures and also violated the parents’ rights to due process.³

II. PRELIMINARY MATTER

This appeal consists of five cases. The facts and issues in each case are essentially the same. To avoid copying five (5) court files, this Court selected one case to represent all five cases. The Order Accepting Appeal gave the parties notice that this court was reviewing one representative case and gave them the opportunity to draw the court’s attention to any unique documents or evidence from any of the other cases that might have a bearing on this appeal and that might be overlooked otherwise.

S.T.S., the children’s mother and Appellee herein, filed a motion to strike exhibits D, E, F, G and P from the Tribe’s opening appeal brief. The exhibits in question are:

The mother’s basis for the motion comes from language in this court’s Order Accepting Appeal:

If either party believes there are documents or evidence unique to one of the other cause numbers that would not be included in the record of PUY-CW-09-08-064

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and would have a bearing on this appeal, that party may file a motion no later than Friday, July 10, 2009 specifying the documents or other evidence from the other cause number(s) that the party believes should be included in the record for review. (Emphasis added.)

The mother brought the motion because the Tribe did not seek to have the exhibits included for review by the Court of Appeals as required by the Order Accepting Appeal. For unknown reasons, the Tribe attached exhibits from other children’s cases to the Tribe’s opening brief. Nevertheless, the challenged documents were already in the record being reviewed. They were included in L.S.’s case file as exhibits to the Tribe’s response brief to the mother’s motion to return the children. CR 73.³  Even if those documents had not been previously filed with the Children’s Court, Puyallup tribal law gives the Court of Appeals authority to review all of the orders and petitions in the five cases submitted for appeal. PTC 4.03.540. Therefore, the mother’s motion to strike exhibits is denied.

III. FACTS

On September 2, 2008, the Tribe filed a petition seeking a determination whether L.S. and four of her minor siblings were children in-need-of-care as defined by the Puyallup Tribal Code. Appellant’s Exhibit B.⁴ The petition alleged that the children:

Id. at pages 2-3.

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Prior to filing the petition, Puyallup Tribal Police had taken the children into protective custody after a home welfare check by the Puyallup Tribe’s Child Protective Services (“CPS”) resulted in a CPS determination that the children were not safe in their home. Id. at 3.

On September 4, 2008, the Children’s Court found probable cause to believe that:

Appellant’s Exhibit C.

Out of home placement was ordered for all of the children pending an adjudicatory hearing. Id. The children were made wards of the court and Puyallup Tribal Children Services (“PTCS”) was granted temporary legal custody of the children. Id. at 3. The Children’s Court order authorized PTCS to place or modify placement of the children as it deemed appropriate, and the order further stated that “[n]o one shall interfere with placement or take the child[ren] without Children’s Services permission.” Id. An adjudicatory hearing was scheduled for November 20, 2008. Id.

The record of this case does not contain an Order of Adjudication regarding the children. Rather, the next order entered was an Order on Dispositional Hearing in a “Child-In-Of Care” Proceeding [sic] (“Order of Disposition”) for each child. Appellant’s Exhibits D, E, F, and H. The children were “adjudged” to be “children-in-need-of-care as defined by 7.01.120(6),⁶ after

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… an agreed Adjudicatory Hearing.” Id.⁷ The Orders of Disposition granted the Tribe temporary legal custody of the children “until these proceedings are terminated.” Id. The Orders of Disposition also provided as follows:

… [PTCS] may place or modify placement as it [deems] appropriate, depending on circumstances as they may arise. No one shall interfere with placement or take the children without [PTCS] permission. Furthermore, [PTCS] has full discretion to determine the frequency, duration, and terms of visitation between the children, the parents, guardians, and custodians.

Id. The children were ordered placed in an “in-home placement” that could “not be altered absent a Court Order or emergency circumstances.” Id. (Emphasis added.)

The disposition orders set out a case plan for the mother, for the children and for PTCS. The case plan for the mother included the following:

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With respect to the children, the case plan provided that their mother would provide for their daily needs upon her discharge from treatment, and that her “significant other” would provide for the children’s needs while she was in treatment.⁸ PTCS was charged to “[e]nsure that the children’s needs are being met in any/all respective homes” and to “[a]ssist parents in completion of the case plan ….” Id. A review hearing was scheduled for February 19, 2009. Id.

The event that caused the controversy leading to this appeal took place on January 16, 2009, when the Tribe determined that the parents were unable to meet the needs of the children placed in their care and moved them to an emergency placement.

On January 21, 2009, the Tribe filed an “Ex Parte Notification of Placement Change”. The stated reason for the action was, “The in home placement has been unable to meet the needs of the child placed in their care and she was moved to an emergency placement on 1/16/09 until an approved foster home was available where she was moved through Puyallup Tribe Children Services on 1/20/09.” Tribe’s Exhibit I. On January 22, 2009, the Children’s Court issued an “Order on Tribe’s Ex Parte Motion Authorizing Medical, Dental and Education Care” granting the Tribe’s ex parte motion.

On January 26, 2009, the mother filed a motion and affidavit objecting to the change of the children’s placement; denying that some of the physical abuse of the children that resulted in the change of placement had occurred; and complaining that CPS had not “proven” that the abuse occurred.⁹ Appellant’s Exhibit J. A hearing on the mother’s motion was held on January 29, 2009. The order from the hearing indicates the court’s interest in learning the reasons for the children’s removal from their in-home placement. The court made no findings of fact after this hearing, but noted that the CPS worker testified that she had relied on the statements of the children regarding their abuse and the use of alcohol by their father. The court scheduled another hearing on the matter for February 18, 2009. CR 25. Order filed 2/2/09.

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The second hearing on the mother’s motion was held on February 18, 2009. The judge indicated concern about the fundamental rights of the parents and whether the “removal” constituted a violation of the parents’ rights from unreasonable search and seizure under the Indian Civil Rights Act. The Children’s Court had received a report on February 6, 2009, from Linda Charette, the CPS investigator. Ms. Charette investigated the circumstances of the children prior to their change of placement. Appellant’s Exhibit R.¹⁰ PTCS also filed a report with the Court on February 11, 2009. Appellant’s Exhibit S. These documents indicated that the CPS investigation of the children’s welfare had been instigated by a referral from the law enforcement officer at the children’s school. Appellant’s Exhibit R at page 2. Among other concerns, the school indicated that one of the children had come to school soiled, “as if she were sleeping in urine,” and had had numerous occasions of soiling herself at school; the children had reported that the parents were fighting and that the mother was gone; the older children reported that they were taking care of the younger children; one child reported that his father had physically abused him and was “hitting us everyday”; the children reported that the father was drinking; the children reported that there was no food in the house; and the school nurse reported that one child’s cheek was swollen. Id. The reports further indicated that when law enforcement and Tribal CPS went to the children’s home, they found it in “extremely deplorable” condition, and having an extremely “foul odor.” Id. at 3. In addition, the CPS investigator found that the parents were out of compliance with their court ordered services, and that they had taken no action to arrange for needed dental and medical services for the children. Id. The February 11, 2009 PTCS report also advised the Children’s Court that the mother had provided no evidence that she had completed inpatient treatment or outpatient services, nor had she signed up for or participated in individual counseling; the mother had not submitted any evidence that she was in counseling with her significant other; the mother had had positive UA’s based on her failure to appear to provide urine for analysis; the home was neither clean nor sanitary; and the mother was not working with the Family Preservation Program.¹¹ PTCS recommended that the children remain wards of the court, under the supervision of PTCS, and that the children remain in their foster care placement. Id. at 3. After the motion hearing, the Children’s Court issued an order requiring that the children be “immediately returned to the parent(s)”, finding there was “no credible evidence, filings or testimony, that the children would be at risk if returned to the parents ....” Appellant’s Exhibit N, at page 2. The order primarily addressed the judge’s opinion that the change of placement had in some manner violated the parents’ “rights to be protected from unreasonable search and seizure” under the Indian Civil Rights Act. Id.

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On February 19, 2009, the first review hearing for the dependency case was conducted. The review hearing date had been previously set by the dispositional order issued on November 20, 2008. The court determined that the mother was in “substantial non-compliance” and ordered continued out-of-home placement. Appellant’s Exhibit P. The Children’s Court struck its own order of the previous day returning the children to the in-home placement. Id. at 3.

On April 3, 2009, the Guardian Ad Litem (“GAL”) for the children filed a report with the Children’s Court. The GAL’s report stated that on her first visit to the home, the home was not clean, but on second visit to the home, she found it to be clean. No dates of the GAL’s visits were provided in the report. The GAL further reported that the mother had been depressed; that she recently found out that she was pregnant; and that the family needed a larger house. The GAL submitted a “report” from Puyallup Tribal Health Authority indicating that the mother had attended four group meetings in March, and that she had not yet scheduled one-on-one counseling sessions. The GAL further reported that the mother had not undertaken an Alcohol and Drug Evaluation.¹² The GAL’s report concludes that the parents were “in compliance” and recommended that the children be returned to their care.¹³

After a hearing on April 16, 2009, the Children’s Court issued an order without making findings with respect to the status of the children or the parents. The Children’s Court ordered the parents be allowed a visitation with the children. Another hearing was scheduled for April 23, 2009. CR Exhibit 61. Order dated April 16, 2009.

On April 20, 2009, the mother filed a motion seeking immediate return of the children. The basis of the motion was that the Tribe had failed to follow the code provisions regarding notice and opportunity for hearing before removing the children from their in-home placement on January 16, 2009. The mother’s motion to return her children was heard on May 7, 2009. The Children’s Court issued a Memorandum Order on May 15, 2009, that made no findings of fact regarding the health and welfare of the children. Rather, the order described the procedural history of the case in great detail. The Children’s Court concluded that the parents were denied due process of law when the Tribe changed the placement of the children on January 16, 2009. The Children’s Court ordered that the children be immediately returned to their parents for an in-home placement period of six months. Appellant’s Exhibit A, page 11.

The Tribe appealed arguing that based on the overwhelming evidence of danger to the health, safety and well-being of the children in their mother’s home, the Children’s Court abused its discretion by ordering the return of the children to in-home placement.

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IV. STANDARD OF REVIEW

Resolving the issues of law before this court will require interpreting Puyallup tribal law. The Puyallup Tribal Code provides that a decision of the trial court may be reversed, modified, or remanded “where there has been an error as to interpretation and/or application of the law by the judge.” PTC 4.03.590(3). The Puyallup Tribal Code does not address whether this court is to give any deference to the trial court’s interpretation of the law. In the absence of a court rule or tribal law, we look to persuasive and well-reasoned decisions from other jurisdictions for guidance. Skokomish Indian Tribe v. Cultee, 8 NICS App 68, 70 (Skokomish Tribal Ct. App. 2008). The interpretation of a statute is a question of law that appellate courts review de novo under an error of law standard. Id. citing, Jeldness v. Pearce, 30 F.3d 1220, 1222 (9th Cir. 1994); Muckleshoot Indian Tribe v. Washington Dept. of Ecology, 112 Wn.App. 712, 720, 50 P.3d 668 (2002).

The Children’s Court decision to return the children to an in-home placement concerns whether the trial court abused its discretion. The Puyallup Tribal Code provides that a decision of the trial court may be reversed, modified, or remanded “where there has been an abuse of discretion that prevented a party from receiving a fair trial.” PTC 4.03.590(1). Abuse of discretion occurs if a decision is "manifestly unreasonable or based upon untenable grounds or reasons." See, e.g., Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App 32 at 43 (Suquamish Tribal Ct. App. 1995), citing Industrial Indem. Co. of N.W., Inc, v. Kallevig, 114 Wn.2d 907, 926, 792 P.2d 520 (1990); Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). There is no abuse of discretion if the findings of the judge are supported by substantial evidence. See, e.g., Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 263 (Hoopa Valley Tribal Ct. App. 1993). Substantial evidence is “evidence which would convince an unprejudiced, thinking mind of the truth of a declared premise.” See, e.g., Lower Elwha v. Elofson, 4 NICS App. 99, 103 (Lower Elwha Tribal Ct. App. 1996), citing Freeburg v. Seattle, 71 Wash. App. 367,859 P.2d 610 (1993). The factual review undertaken by an appellate court is deferential to the trial court, and requires review of the evidence in “the light most favorable to the party who prevailed in the highest forum that exercised fact finding authority.” Id.

V. DISCUSSION

A. Is the Children’s Court Order a Final Order for Appeal Purposes?

The Court of Appeals can only review appeals authorized by Puyallup Tribal law. PTC 4.03.420. The Puyallup Child and Family Protection Code (“Children’s Code”) allows any party to a Children’s Court hearing to appeal a final Children’s Court order. See PTC 7.01.2700; PTC 7.01.2710; PTC 4.03.510. For this appeal to proceed, the Children’s Court memorandum order issued on May 15, 2009, must have been a final order.

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The term final order is defined as, “One which terminates the litigation between the parties and the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.” Black’s Law Dictionary 630 (6th ed. 1990). The question is whether the order being appealed terminated litigation regarding the merits of the case. There is no question that the Children’s Court issued an order to enforce by execution what had been determined. Litigation is defined as, “A lawsuit. Legal action, including all proceedings therein.” Id. at 934. Merits means “…the strict legal rights of the parties.” and “The substance, elements, or grounds of a cause of action or defense.” Id. at 989.

The Children’s Court order does not indicate whether it was a temporary order, interim order or final order.  The final sentence of the order states that the children shall be returned to the mother “for a period of six (6) months” and “that there shall be two reviews at three (3) month intervals.” Appellant’s Exhibit A, pp. 11-12.  The nature of dependency cases are that if the allegations in the petition are found to be true then the litigation has the potential to go on for years with many review orders being issued. The Children’s Code requires that the “status of all children subject to the Child and Family Protection Code shall be reviewed by the Court at least every six (6) months…”  PTC 7.01.1700.  One of the possible outcomes of a review hearing is that the placement of a child could change. PTC 7.01.1710. As a result, in dependency cases there is always the possibility that an appeal of a child’s placement can become moot before the appeal process can be completed. In this case, it took approximately seven months from issuance of the order being appealed to the date set for oral arguments.

On the other hand, if the Children’s Court makes an error of law or misapplies procedural rules, then the parties must live with an incorrect decision for the rest of the case, and perhaps in future cases as well if the incorrect decision becomes the way of doing business. Judges of the Court of Appeals have a duty and the authority to determine the meaning, interpretation, and application of the Tribal Constitution and laws and, where appropriate, other authorities. PTC 4.03.450(2).

The Children’s Court held a hearing on the mother’s motion to return her children. The mother sought a decision as a result of her belief that the Tribe had violated her rights. A motion hearing is a legal proceeding that takes place within a lawsuit. The merits of the motion concerned the rights of the parties and whether rights had been violated. The Children’s Court order was a final determination on the specific merits of the litigation raised by the motion. The specific issues of law raised by the mother’s motion are not the type of issues litigated during a dependency review hearing. Review hearings are statutorily required at least every six (6) months to review the status of all children to determine whether court supervision shall continue. PTC 7.01.1700.

The challenged Children’s Court order concerns matters of significant interest to the Puyallup Tribe, because the legal conclusions affect the application of tribal law and procedures in other dependency cases that may come before the court. The decision impacts the welfare of

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children and calls into question the appropriate procedures for how to protect children by removal or change of placement. The best interests of children may be jeopardized without clear procedural guidance for changes of placement and removals.

The memorandum order terminated litigation on issues of law and procedure. Regularly scheduled dependency review hearings are not held to re-litigate determinations of law and procedure. Therefore, we hold that the memorandum order is a final order.

B.     Did the Court err when it found that the Tribe failed to comply with Puyallup Tribal Law and due process requirements?

When the Children’s Court ordered the children returned to an in-home dependency, it indicated its concern that the fundamental rights of the parents had been infringed and that the “removal” constituted a violation of the parents’ rights from unreasonable search and seizure under the Indian Civil Rights Act. The Children’s Court determined that “removal must comply with due process.” Appellant’s Exhibit A, pg. 10. The Children’s Court further determined that, “There must at least be an investigation or filing with the court such as a petition to remove the minor children. See, Puyallup Tribal Child and Family Protection Code, §§7.01.820-830.” Id. at 10. The Children’s Court held that “This was not done by the presenting officer or Children Services and thereby denied the parent(s) right to due process of law and encroached and violated the fundamental liberty interests of the parent(s).” Id. Based on this conclusion of law, the trial court ordered, “That the minor children be immediately returned to the parents …” Id. at 11.

We first determine whether the action taken by the Tribe on January 16, 2009, was a “removal” or a “change of placement” and discuss the significance of the meaning of those two terms. In the memorandum order issued on May 15, 2009, the Children’s Court determined that, “The minor children were removed from the in-home dependency…” (Emphasis added.) Appellant’s Exhibit A, pg. 2.

The term “removal” and authority for removal are found in PTC 7.01.820, “If the person investigating a report of child abuse or neglect finds that the grounds for removal…have been met, such person may, with the assistance of Law Enforcement or a court order, remove the child from the home ….” The grounds for emergency removal are provided for in PTC 7.01.830. See also Power to Remove in PTC 7.01.840, and Notice of Removal in Subchapter IX of the Children’s Code.

This case started on August 28, 2008, when the Puyallup Tribal Police took the children into protective custody. This initial action was a removal requiring the Tribe to initiate a dependency case by filing a child/family protection petition. If a child has been removed from the home, then a child/family protection petition shall be filed with the Children’s Court no later than 72 hours, excluding Saturday, Sunday and holidays, following the removal. PTC 7.01.1110

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(1). The Tribe filed the appropriate petition on September 2, 2008. Removal of children from the custody of their parents is a first step to the start of a dependency case.

The code requires an initial hearing regarding the removal of a child within 72 hours of filing of the child/family protection petition. PTC 7.01.1200. The Children’s Court held the initial hearing on September 4, 2008, and found probable cause to believe the children were in-need-of-care pursuant to PTC 7.01.120(6) and ordered an out-of-home placement pending an adjudicatory hearing.

On November 20, 2008, the children were adjudged to be “children-in-need of care” and placed in an in-home placement. The order authorized the following:

#3 Puyallup Tribe Children Services is granted temporary legal custody of the children, under the supervision of its Director, until these proceedings are terminated. As such, Children Services may place or modify placement as it deeps [sic] appropriate, depending on circumstances as they may arise. No one shall interfere with placement or take the children without Children Services permission. Furthermore, Children Services has full discretion to determine the frequency, duration, and terms of visitation between the children, the parents, guardians, and custodians.¹³ (Emphasis added).

#4 The children shall remain in a [X] in-home placement [ ] out-of-home placement, which shall not be altered absent a Court Order or emergency circumstances.

CR 17, pg 1, paragraphs #3 and #4.

The Tribe, relying on the Children’s Court disposition order of November 20, 2009, changed the children’s placement, which it had authority to do as the temporary legal custodian in an emergency circumstance. The Tribe notified the Children’s Court of its change of placement on January 21, 2009, by filing an “Ex Parte Notification of Placement Change.” CR 19. On January 22, 2009, the Children’s Court granted the Tribe’ ex parte motion. This would have been an appropriate time for the Children’s Court to address any due process concerns with the actions taken by the Tribe to change the in-home placement.

The action taken by the Tribe on January 16, 2009, was a change of placement. The Tribe added to the confusion about whether this action was a removal by providing the mother with a “Child Protective Custody Form” citing PTC 7.01.820 for authority to remove and PTC

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7.01.830 as grounds for emergency removal. Appellee’s Reply Brief, Exhibit T, Attachments I and II. However, the use of an incorrect form by the police in an emergency situation does not convert an emergency change of placement to a removal.¹⁵

This was an active and ongoing dependency case before the Children’s Court, so there was no need for the Tribe to file another petition. PTCS had been granted temporary legal custody and had authority from the Children’s Court to change the placement of the children as

PTCS deemed appropriate according to the circumstances. CP 17, pg 1, paragraph #3. Of particular relevance to this case, the Children’s Court order authorized PTCS to alter the in-home placement in emergency circumstances. Id. at paragraph #4.

The disposition order issued on November 20, 2008, is the law of the case and sets out the rights and responsibilities of the parties. In any in-home placement in a dependency case, a change of placement is always a possibility. The Children’s Code does not specify procedures for notices or hearings to review changes of placement. If there are procedural gaps in the law for changing an in-home placement, then the Children’s Court has the responsibility to fill in those procedural gaps to give guidance to advocates, social workers and parents, so that changes of placement can occur in a fair and consistent manner.

The Tribe’s action to change placement was authorized by a Children’s Court’s order. CR 17. The children were wards of the Children’s Court and “temporary legal custody” had been granted to the Tribe. The Tribe had reason to believe that emergency circumstances existed to change the children’s placement. It was an error of law to require the Tribe to follow the Children’s Code removal procedures and the due process provisions of the Indian Civil Rights Act for a change of placement authorized in emergency circumstances by a Children’s Court order.

C.   Did the trial court abuse its discretion by ordering the children returned to the mother’s home?

The facts in the record are clear that the five children were in physical danger in their parent’s home. The home was unclean to the extent that their health was in jeopardy. The adults in the home were not providing proper food and clothing. The children witnessed domestic violence between their parents. The adults in their home were abusing drugs and/or alcohol to the extent that they were unable to properly parent and protect the children. The school-age children were being physically and mentally abused to the extent that school authorities feared

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for their health and safety. The older children were trying, unsuccessfully, to parent their younger siblings. Prior to the time the trial court issued the order being appealed, no reliable evidence in the record countered this grim state of affairs.

Despite the evidence concerning the abuse and neglect that the children were being subjected to, upon disposition, the Children’s Court ordered that all five children be returned to the home of their mother, to be cared for by an unnamed “significant other.” To protect the children, the Children’s Court approved a case plan for the mother. The case plan was intended to address the problems that resulted in mother’s inability to properly parent and safeguard her children.¹⁶ The mother failed to comply with the case plan in any meaningful fashion. There is no indication in the record that the mother’s “significant other” received any treatment or services, despite the fact that this person was implicated in the actions that placed the children in danger.

The Children’s Court placed the children in the legal custody of Puyallup Tribe Social Services, and authorized PTCS to change the placement of the children in the event of an emergency. As described above, such an emergency soon materialized. Based on the evidence before the Children’s Court, it would have been an abuse of discretion, by any standard of review, to order the return of the children to parental care when the protective mechanisms the Children’s Court had ordered were not being followed and clear evidence was presented to demonstrate that the children remained in danger. In this instance, however, the Children’s Court did not merely fail to take into account the evidence, rather the record below demonstrates that the Children’s Court completely ignored evidence when making the decision to order the children’s return to parental placement. The Children’s Court erroneously interpreted both the tribal code requirements and the Indian Civil Rights Act, and ordered the children returned based on its determination that PTCS had violated the due process rights of the mother. Failing to take account of any of the overwhelming evidence that the mother was not correcting the problems that led to the children’s removal from her care was clearly an abuse of discretion.

Even assuming that the Children’s Court interpretation of ICRA and the tribal code requirements had been correct, the remedy for a violation of due process cannot be a return of five young children to a home that is unsafe and where they were being physically and mentally abused. It appears that the Children’s Court was attempting to apply the logic used if there is a violation of rights, such as in search and seizure, in a criminal case when evidence is excluded. The rational in such cases is to deter the police from illegal gathering of evidence, because the evidence will be excluded from trial. No such rule exists for child welfare case workers, nor should there be such a rule. It is not an appropriate remedy to return children to abusive and/or neglectful parents if there is a violation of the parent’s due process rights. Returning a child to

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an abusive placement in an attempt to deter conduct by a caseworker is contrary to the child’s best interests. The duty of the Tribe, child welfare agencies and the Children’s Court is to always do what is in the child’s best interest. If a judge is convinced that there has been a deprivation of due process rights, then the judge is obliged to fashion a remedy that does not involve putting children at risk.  See PTC 7.01.110 (“The Child and Family Protection Code shall be liberally interpreted and construed to fulfill the following expressed purposes: (1) To provide for the welfare, care and protection of the children and families on the Puyallup Indian Reservation; [and] (3) To take such actions as may be necessary and feasible to prevent the abuse, neglect or abandonment of children.”)

There does seem to be some tension between purpose 3 and purpose 2, which is “To preserve unity of the family, preferably by separating the child from his or her parents only when necessary.  However, while there is no ranking or prioritization of the purposes, it seems self-evident that actions necessary to prevent abuse, neglect or abandonment of children is exactly what would make it necessary to separate a child from his or her parents under purpose 2.  The Court’s ruling on this point is also supported by the Tribal Council Resolution adopting the code (Res. 180599F, certified May 15, 1999), which states that “… it is the duty of the Puyallup Tribal Council to protect and preserve the future of the Tribe by exercising their traditional powers to ensure that Indian children of the community are properly provided for …”

VI. CONCLUSION

The memorandum order issued on May 15, 2009, by the Children’s Court is a final order for purposes of appeal. The trial court erred in finding that the Tribe failed to comply with Puyallup Tribal Law and that the Tribe violated the parent’s due process rights when the Tribe changed the children’s placement on January 16, 2009. Finally, the trial court abused its discretion by ordering the children returned to the parents’ home for what the trial court determined to be due process violations of the parents’ rights. We therefore vacate the Children’s Court’s May 15, 2009 Memorandum Order.

Ordinarily, we would remand a matter such as this to the Children’s Court for further proceedings to be conducted in a manner consistent with this opinion. However, this Court is aware that the Children’s Court has already conducted additional proceedings in this matter. Those additional proceedings have resulted in a set of Orders issued January 20, 2010 that return the children to the mother’s custody and terminate the proceedings. On February 1, 2010, this Court received the Tribe’s Notice of Appeal, Motion for Stay, and Proposed Order to Stay regarding the January 20, 2010 Orders.

This Court will, by separate Order issued today, accept the Tribe’s appeal for review and grant a temporary stay of the January 20, 2010 orders until such time as the Court can schedule a hearing on the Tribe’s Motion for Stay, at which time this Court will determine whether the stay

9 NICS App. 61, IN THE WELFARE OF FIVE INDIAN MINORS (February 2010) p. 76

should remain in effect, and if so, under what terms and conditions. In light of these developments, a remand would not be appropriate.

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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.

Tribal agencies will be referred to collectively as the “Tribe” throughout this decision, unless the context calls for identifying a specific tribal agency.

This appeal involves the cases of five children. For the purposes of judicial efficiency, this decision will address one representative case; that of the child known as “L.S.”, unless indicated otherwise. In order to protect the confidentiality of the children as required by the Puyallup Code, we will not name the children or the parents.

“CR” refers to exhibits contained in the Trial Court Record.

“Exhibit __” followed by a letter refers to exhibits attached to the respective appellate briefs.

Despite uncertainty in the record regarding paternity, the opinion will refer to “parents” for the sake of clarity, brevity and consistency where “parents” has been used in documents cited in the opinion.

PTC 7.01.120 (6) provides as follows:

    “Child in Need of Care”-

In the absence of an Order of Adjudication and any specific findings from the trial court with respect to the agreement on adjudication, it is reasonable for this court to assume that the parties agreed to the allegations in the original petition. See Appellant’s Exhibit B, at pages 2-3.

It is not clear that the Children’s Court knew the name or the relationship of the mother’s “significant other” prior to agreeing that he should be the primary caregiver for all of the children while the mother was engaged in inpatient treatment. It is not clear why the Children’s Court believed the “significant other” would be able to keep the children safe and provide proper housing and parenting, given that this unnamed person was apparently involved in the domestic violence and the abuse of drugs or alcohol that led, in part, to the filing of the petition. No case plan was required for this “significant other.” The case plan “As to the Father” in four of the orders of disposition simply required that whenever paternity might be established, the father would be required to present himself for a case plan to be developed. CR 73, Exhibits G, H, I and J. Only the order of disposition for L.S. includes a detailed case plan “As to the Father.” That case plan tracks the case plan “As to the Mother,” with the sole exception that the father appears to have been receiving outpatient treatment whereas the mother was receiving inpatient treatment. Id. at Exhibit K.

The children were already in the temporary legal custody of the PTCS when this motion was filed.

This report is contained in the record, but has no date stamp to indicate whether it was filed with the court or received into evidence.

The February 11, 2009 report to the Children’s Court from PTCS also described the father’s compliance with, presumably, his case plan. It appears from the record that paternity for L.S. had been established and a “Family Case Plan” was ordered on November 20, 2008, which included specific terms “As to Father.” See CR 73, Exhibit K and footnote 9, supra. It appears that in regards to the four children who’s paternity had yet to be established, the trial judge did not make any findings with respect to father’s compliance, and the February 19, 2009 order states only that father’s compliance was “not applicable/not named.” In the case of L.S., the trial judge determined that, like the mother, the father was in “substantial non-compliance.” CR 41.

This Court takes note that an evaluation is the first step in a treatment program, prior to beginning any form of outpatient or inpatient treatment. Absent an evaluation, no decision is made regarding what type of treatment a client requires.

Based on the case plan contained in the record, it does not appear that the mother was in compliance with her case plan, despite this statement from the Guardian ad Litem.

This appears to be boiler plate language in a standard form used by the Children’s Court. The paragraph is not crossed out, nor is there a check box before the paragraph that would indicate that it is an optional paragraph; therefore this boiler plate language is an enforceable part of the order.

At oral argument, the Tribal Prosecutor, who is also the Tribe’s Presenting Officer, informed the Court of Appeals that the Tribe does not have a form specifically for emergency change of placements that can be given to the custodian to inform the custodian of the grounds for the emergency action and the custodian’s legal rights.  This Court strongly encourages the relevant Tribal agencies to develop such a form so as to avoid the type of confusion and litigation that seems to have ensued in this case at least in part because of the use of the incorrect form.

A case plan is usually intended to address the problems that resulted in a finding that the children are in need of protection. In the absence of an order of adjudication, the reasons for the removal of the children are not entirely clear.