9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010)

IN THE PUYALLUP TRIBAL CHILDREN’S COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

In the Welfare of Four Indian Minors.

Puyallup Tribe of Indians, Appellant,

v.

S.T.S., Appellee.

No. PUY-CW-09-08-064; -065; -066; -068 (June 25, 2010)

SYLLABUS^*

Children’s Court issued orders closing four dependency cases after ordering affected children returned to an in-home placement with their mother. Court of Appeals holds that trial court’s findings were contrary to the evidence. Trial court orders vacated and cases remanded for additional proceedings.

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

Appearances:  Leona Martinez, Presenting Officer/Attorney for Appellant Puyallup Tribe; Chrishendra Tucker-Scruggs, Attorney for Appellee S.T.S.

OPINION

Doucet, C.J.:

I.    INTRODUCTION

The Puyallup Tribe appeals the Children’s Court orders closing four child dependency cases. The Tribe argues that the court’s findings in support of its decision to dismiss the cases were contrary to the evidence presented at the dependency review hearing. We VACATE the Children’s Court orders and REMAND the cases for modification of the Family Case Plans consistent with this opinion.¹

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 106

II.    BACKGROUND AND PROCEDURAL HISTORY

This is the second appeal filed in this case. In the first appeal this Court held that the Children’s Court erred when it found that the Tribe failed to comply with Puyallup Tribal Law and that the Tribe violated the parents’ due process rights when the Tribe changed the children’s placement without first obtaining court authorization. In the Welfare of Five Indian Minors, 9 NICS App. 61 (Puyallup Tribal Ct. App. 2010).² This Court also held that the Children’s Court abused its discretion by ordering the children returned to the parents’ home for what the Children’s Court erroneously determined were due process violations of the parents’ rights. Id.

The child-in-need-of-care case originally began on September 2, 2008, when the Tribe filed child-in-need-of-care petitions for L.S. and four of her minor siblings. At the initial hearing, the Children’s Court found probable cause to believe that:

1.   L.S. and her siblings were children in need of proper and effective parental care or control and had no parent, guardian or custodian willing to exercise care or control;

2.   The children had not been provided adequate shelter necessary for their health and well being; and

3.   The children had been or are likely to be physically and psychologically abused by parents, guardians or custodians.

Order on Initial Hearing In a “Child-In-Need-Of-Care” Proceeding, 9/4/2008.

On November 20, 2008, the Children’s Court issued an Order on Dispositional Hearing in a “Child-In-Need of Care” Proceeding. The order stated that for the children to no longer be deemed children-in-need-of-care and for the case to end, “the parties shall comply with the following Family Case Plan.” The order established the mother’s (“S.T.S”) Family Case Plan requirements as follows:

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 107

With respect to the children, the Family Case Plan provided that their mother would provide for their daily needs upon her discharge from treatment. Puyallup Tribal Children Services (“PTCS”) was ordered 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.”

At the outset of the case, the children were removed from the custody of their parents. By the time of the fourth review hearing on November 29, 2009, the children had been returned to the parents and were in an in-home dependency. Prior to the fourth review hearing, PTCS filed reports with the Children’s Court stating that the father was in substantial non-compliance with the court ordered case plan and that the mother was in partial compliance with her court ordered case plan. The report specifically addressed the mother’s non-compliance with urinalysis testing (hereinafter “UAs”), non-compliance with couples counseling, concerns about the mother’s housing situation and the mother’s demonstrated inability to follow through managing the day to day needs for herself and the children. CP 146.³

On January 20, 2010, the Children’s Court issued its findings and orders from the fourth review hearing.⁴ With respect to the father, the Children’s Court found that “at the last review hearing both the Father and Mother stated on record that they are no longer domiciled together.” CP 160. The Children’s Court found the mother to be in compliance with the Family Case Plan, rehabilitated and maintaining her family unit. CP 159. Based on the findings from the fourth review hearing, the Children’s Court dismissed all four dependency cases. CP 159. The relevant text from the order states:

The court further finds that [mother] is in compliance with the case plan entered November 19, 2009; no positive UA for non-prescription drugs or alcohol; attended alcohol and drug treatment; participated in individual and couples counseling; continued out-patient treatment and random UA’s; participated in Family Preservation; and is no longer a victim of domestic violence. [Mother] has maintained a decent family home and the children have attended their entire

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 108

dental and medical appointments; and supported her oldest daughter during in-patient treatment; and continues to support all the children in school and after school activities.

WHEREFORE, the court finds that the respondent, [mother] has rehabilitated and is maintaining her family unit; and

THEREFORE, IT is Hereby Ordered, that this entire matter be dismiss [sic] forthwith and with prejudice, the files to be closed and sealed.

CP 159.

The Tribe appeals the order to dismiss the four dependency cases. The Tribe focused its appeal on the issues of whether the Children’s Court made erroneous findings and closed the case against the clear weight of the evidence. The Tribe argues that the mother had not complied with the “no positive UA” requirement when she was a “NO SHOW” for three UAs during the reporting period. The Tribe disputes the finding that the mother participated in couples counseling when she self-terminated counseling without authorization from the court. The Tribe disputes the finding that the mother maintained a decent family home when there was evidence that she might be evicted for non-payment of rent. Finally, the Tribe argues that there is no evidence in the record to support findings that the mother was ensuring that the children were attending dental and medical appointments, supporting the oldest daughter during in-patient treatment, and supporting the children with school activities.

III.    STANDARD OF REVIEW

A decision of the trial court will be reversed, modified, or remanded only where there has been an abuse of discretion that prevented a party from receiving a fair trial, or where the decision is contrary to the law and the evidence. PTC 4.16.400 (a), (d) (formerly PTC 4.03.590 (1), (4)).⁵ 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). 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

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 109

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.

IV.    DISCUSSION

There are fundamental procedural problems with this case that start at its beginning. After the initial hearing, the Children’s Court did not enter an adjudicatory order, as required by the Puyallup Tribal Code. PTC 7.04.500 (formerly PTC 7.01.1400), et. seq. Rather, the first order issued after the initial hearing is entitled “Order on Dispositional Hearing in a ‘Child-In-Of Care’ Proceeding.” In this order, issued on November 20, 2008, the Children’s Court states that the child has been “adjudged to be “children-in-need-of-care” as defined by 7.01.120(6)⁶ after … an agreed Adjudicatory Hearing.” However, there is no separate order regarding the agreed Adjudicatory Hearing, and thus the Court made no specific findings regarding the grounds for the continuing removal of the children from their home, as required by PTC 7.04.580 (formerly PTC 7.01.1450).

This departure from a fundamental procedural requirement at the early stages of the case created problems that compounded as the case moved forward. This is so because it is at the adjudication stage of the proceedings that the determination is made, not only that the children are in need-of-care, but also the grounds for removal. PTC 7.04.580 (formerly PTC 7.01.1450). The purpose of the formal adjudicatory hearing is to have the Children’s Court specify in its order the necessary intervention and appropriate steps, if any, the parents must follow to correct the underlying problems. PTC 7.04.590 (formerly PTC 7.01.1455). Because there is no record of, and no order following, an adjudicatory hearing, it is unclear whether the parties agreed to all of the allegations in the original petition, or something else.

If the Children’s Court finds the allegations of the child/family protection petition to be true, as it did in this case, and out of home placement necessary, which took place at the outset of this case, then “with the accomplishment of specified action by the parent(s)… the child may be returned absent good cause to the contrary.” PTC 7.04.600 (formerly PTC 7.01.1460). The Children’s Court is required to issue an order that specifies the actions, and the time frames for such actions, that the parents must accomplish before the child is returned. Id. Finally, the Children’s Court is required to issue a written order specifying the facts, grounds, and code sections upon which it relied to make its decision. PTC 7.04.620 (formerly PTC 7.01.1470).

In this case, based on the Family Case Plan, we are left to assume that the problems that led to the child-in-need-of-care petition were alcohol and drug abuse, poor housekeeping to the point of unhealthiness, lack of stable housing, and domestic violence. We assume this because the “Order on Dispositional Hearing” attempts to address these issues, presumably to comply

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 110

with the requirements of PTC 7.04.590 (formerly PTC 7.01.1455).⁷ However, there is another problem: the Family Case Plan (“case plan”) adopted in the disposition order does not address some of the issues in a manner that could reasonably allow the court to determine whether the intervention and required “steps” resulted in a correction of the “underlying problems” that presumably led to the initial decision to take the children into care. For example, the case plan requires Mother to “enter into individual counseling” and to “enter into couple counseling”. How would simply “entering into” counseling address the problems of domestic violence, unstable housing and lack of adequate parenting of the children? In these examples the case plan is missing “outcome” provisions and timeframes for accomplishing requirements, and thus any provision by which the Children’s Court could measure progress, completion, or determine whether the ordered interventions were successful.

The two failures described above, the failure to specify the grounds for removal in an adjudicatory order, and the failure to adopt a carefully crafted case plan to address the underlying problems in the family, led, perhaps inevitably, to the confusing and disjointed court review resulting in the order on appeal.

The Puyallup Children’s Code provides that after adjudication, the Children’s Court must review the status of all children who are “subject to the Children and Family Protection Code” within 90 days following the adjudicatory hearing and at least every six months thereafter. PTC 7.04.740 (formerly PTC 7.01.1700). After such review, a child must be returned home “unless the Court finds that a reason for removal as set forth in PTC 7.04.580 still exists.” PTC 7.04.750 (formerly PTC 7.01.1710). If the Court finds “unresolved problems in the home”, court intervention and supervision may be continued. Id. Written findings are required if the court determines after review that continued court intervention is necessary. PTC 7.04.760 (formerly PTC 7.01.1720). Because the order on appeal dismisses the matter, the dismissal means that the Children’s Court found that all of the reasons for removal had been remedied, and that none of the reasons set out in PTC 7.04.580 existed at that time.

Because the relevant tribal code refers to all reasons for removal set out in PTC 7.04.580, we shall use both the general provisions of PTC 7.04.580 and the case plan adopted by the court, including the modifications to the plan included in the Order on 3rd Review Hearing, to determine whether the Children’s Court decision in the Order on 4th Review Hearing was contrary to the evidence.

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 111

A.        UAs

The first Children’s Court finding at issue concerns the mother’s compliance with Urine Analysis (“UA”) testing. The basis for the UA requirements were initially ordered in the November 20, 2008 Family Case Plan, and also more specifically in the Order on 3rd Review Hearing issued on August 21, 2009. CP 128. The specific requirement from the Family Case Plan states, “Mother to remain clean and sober at all times.” The Order on 3rd Review Hearing requires, “Mother shall submit to random UAs upon notification that she is required to do so.” CP 128, pg. 5.

The evidence provided to the Children’s Court for the fourth review hearing indicated that the mother was a “NO SHOW” at three UA appointments during the reporting period.⁸ CP 146. The mother did not attend UA appointments on August 26, 2009, October 2, 2009 and October 29, 2009. Id. The Tribe argues that a “NO SHOW” is considered a positive result. The mother did not provide the Children’s Court with evidence to support her reasons for missing the UA appointments.

In the January 20, 2010, Order on 4th Review Hearing, the Children’s Court found the mother to be in compliance with the Family Case Plan. With respect to UA’s, the Children’s Court found “no positive UA for non-prescription drugs or alcohol”. CP 159.

The Children’s Court findings with respect to the UAs are contrary to the evidence presented at the fourth review hearing. The reason the mother had “no positive UA…” tests, was due to her failure to appear for UA testing, which she was required to do in the Order on 3rd Review Hearing. CP 128, pg 5. The mother was clearly in non-compliance with the requirement to submit to random UA’s. Further, it is reasonable to presume that failure to attend a UA or avoiding a UA may be due to the donor’s concern that the result may be unfavorable. If the mother had good cause grounds for failing to attend the UA’s, then the Children’s Court should have taken that evidence and made the appropriate findings. However, failing to attend three UAs during a reporting period, even if there was good cause, should not be treated as having “no positive UA.” Taking into consideration the whole purpose of the dependency case, to remedy the problems leading to the dependency, the Children’s Court should treat such situations as an unresolved problem and continue court intervention until there are sufficient UAs administered to satisfy the court that the mother is clean and sober. The Children’s Court had ample grounds to continue court intervention due to the mother not participating in court ordered UA requirements, when she failed to attend three UA appointments during the reporting period. PTC 7.04.760(e) (formerly PTC 7.01.1720 (5)).

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 112

B.        Counseling

The next issue was whether the Children’s Court properly found that the mother was in compliance with the couples counseling requirement. The November 20, 2008, Family Case Plan required, “Mother to enter into couple [sic] counseling with her significant other.”⁹

At the third review hearing held on August 20, 2009, the Children’s Court found, “Mother’s attendance frequency needs to be documented to show Mother is attending and participating in the counseling sessions on a regular basis, i.e., as the counselor recommends.” CP 128, pg. 2. The evidence presented to the Children’s Court indicated that, “The couple informed CW on 9/17/09 that they have decided to separate and see no reason to continue couple counseling.”¹⁰ CP 146. The findings from the Order on 3rd Review Hearing as to Father, held on August 27, 2009, were that the Children’s Court denied the PTCS motion to remove the father from the residence he lived in with the mother, the child and the child’s siblings until he was able to “demonstrate long-term stability and sobriety”. CP 135. The Family Preservation Status Report dated November 4, 2009, indicated that as of October 4, 2009, the mother and father were evicted from their house and were going to be sharing a residence until the mother could obtain suitable housing. CP 146. The evidence shows that less than a month after the Children’s Court found the mother to be in partial compliance, she self-terminated future couples counseling without authorization from the Court.

The Children’s Court ruled in the Order on 4th Review Hearing that the mother, “participated in individual and couples counseling.” CP 159, pg. 2. Technically, the Children’s Court is correct, the mother did participate in couples counseling. Unfortunately, the language used in drafting the initial Family Case Plan is not very helpful, because it states “mother to enter into couple [sic] counseling with her significant other.” A well-drafted Family Case Plan should be designed to fit the particular needs of the individual and should be written to provide sufficient notice for someone to understand when they have fully complied with a requirement.¹¹ Carefully drafted case plan requirements aid the family, the court and service providers know what constitutes satisfactory compliance.

Notwithstanding the poorly drafted case plan requirement and the Children’s Court finding that the mother participated in couples counseling, the clear weight of the evidence shows that the mother had not satisfied the couples counseling requirement. The mother was

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 113

only in partial compliance at the third review hearing on August 20, 2009. CP 128, pg. 2. Less than one month later, she self-terminated couples counseling. Only the Children’s Court has the authority to relieve a party from a court ordered Family Case Plan requirement. If the mother had cause to be relieved from the couples counseling requirement, the proper procedure would be for her to file a motion with the court. The Children’s Court could then evaluate the evidence and make the appropriate determination. Without having been granted relief from the couples counseling requirement by the court, her decision to terminate couples counseling is per se non-compliance.

In reviewing whether court ordered Family Case Plan requirements have been satisfied, the Children’s Court must analyze the evidence of parental compliance by taking into consideration the initial reason for ordering the requirement, the overall goals of the case, the intent and purpose of the Children’s Code and whether the parent’s efforts in fulfilling the requirement have resulted in helping create a safe and stable environment for the child. Therefore, there must be some finding by the Children’s Court that the intent and purpose of the requirement has been fulfilled and the problem necessitating the requirement has been resolved. That was not done for this requirement.

C.        Housing

The third issue raised by the Tribe is whether the Children’s Court properly found that the mother satisfied the requirement to “maintain a clean, sober, and sanitary house for her children to reside in.”¹² With respect to this requirement, the Children’s Court found that the “[Mother] has maintained a decent family home…” CP 159, pg. 2.

At the fourth review hearing, the Tribe argued that the mother’s housing situation was tenuous. The Tribe’s position was supported by evidence that, “She [mother] is on a waiting list for housing since her ex-boyfriend was evicted from their apartment on 10/9/09.”¹³ CP 146. The Family Preservation Status Report dated November 4, 2009, indicated that as of October 4, 2009, the mother and father were evicted from their house by Puyallup Tribal Housing Authority and were going to be sharing a residence until the mother could obtain suitable housing. Id.

On December 8, 2009, the mother’s attorney filed a Motion to Dismiss Case. CP 151. In the motion, the mother’s attorney alleges that the mother filed proof with the Court on November 30, 2009 that she is leasing a four bedroom house through the Puyallup Housing Authority. The court file contains a Rental Agreement between the mother and Puyallup Tribal Housing Authority for a dwelling located in Tacoma. CP 149. The rental agreement is dated December 1, 2009. Id.

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 114

On January 4, 2010, Puyallup Tribe Children Services Caseworker Laura Ducolon filed a declaration with the Children’s Court stating that the mother had not paid rent for January 2010, which she was required to do because she was late on the December 2009 rent payment. CP 157. The declaration stated that, “Freda has begun the eviction process due to [mother’s] failure to pay rent on-time and to have a garbage can.” Id. On January 14, 2010, counsel for mother filed a response stating that as of that date no eviction was pending. CP 158. The Children’s Court issued its Order on 4th Review Hearing on January 20, 2010. CP 159.

A prerequisite to maintaining a decent family home is to have a dwelling in which the threat of eviction is not an imminent possibility. The term “maintain” in this context means preserve from lapse, decline, failure or cessation. Black’s Law Dictionary, Sixth Edition, pg. 953. In the same month that the Children’s Court issued its order that found, “[Mother] has maintained a decent family home”, the parties were filing court documents concerning the possibility of the mother being evicted from the house in which she had signed a rental agreement only six weeks prior. CP 157, CP 158. Even if the mother avoided eviction in January 2010, more time than a few weeks must be given to allow for the housing situation to stabilize. Successes in dependency cases are marked by long-term stability in maintaining compliance with court ordered family case plan requirements. When there is not a specific timeframe established in the family case plan, then the length of time required to determine stability for any given requirement depends on the nature of the requirement and should be considered in totality with all of the other requirements of the family case plan necessary to accomplish the overall goals of solving the problems that caused the case to be initiated. In light of the evidence presented at the fourth review hearing and thereafter, the Children’s Court decision finding the mother had maintained a decent family home was contrary to the evidence.

D.        Appointments and General Support for Children’s Activities

The Tribe challenged the Children’s Court findings that “the children have attended their entire dental and medical appointments; and supported her oldest daughter during in-patient treatment; and continues to support all the children in school and after school activities.” CP 159, pg. 2. The initial Family Case Plan issued on November 20, 2008, did not require these provisions. Although, the Order on 3rd Review Hearing did require that the, “Mother shall notify PTCS of the name/s of any other agency besides Puyallup Tribal Health Authority that she has had or will have any of the children brought to for medical, dental or other health reasons…” CP 128, pg. 6. Because the Children’s Court believed the mother’s participation in these activities were important enough to take into consideration in deciding to dismiss the cases, we will review whether the evidence supported these findings.

The specific findings from the Order on 4th Review Hearing state:

[Mother] is no longer a victim of domestic violence. [Mother] has maintained a decent family home and the children have attended their entire dental and medical

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 115

appointments; and supported her oldest daughter during in-patient treatment; and continues to support all the children in school and after school activities.

CP 159, pg. 2.

In the mother’s Response and Objection to Petitioner’s Motion and Proposed Order Received 12/22/2009, filed on December 29, 2009, in language similar to that later used by the Children’s Court in its findings, her attorney argues that the mother is in compliance as follows:

She has not been a victim of further Domestic Violence. Her children have not been abused. She maintains a decent home, and her children attended all of their medical and dental appointments. She supported her teenage daughter through in-patient treatment this past summer, and supported her other children in school and after school activities.

CP 156, pg. 3.

These arguments made by the mother’s attorney were not supported by an affidavit or declaration. Arguments of legal counsel are not evidence.

The Tribe argues that the part of the order regarding the “children have attended their entire dental and medical appointments” and “continues to support all the children in school and after school activities” is not supported by the evidence. We agree. In fact, the evidence indicates that the mother was struggling with meeting daily needs for her and the children. The Report For 4th Review Hearing In Case No. PUY-CW-09/08-064, filed on November 6, 2009, states the following:

[Mother] has demonstrated the inability to follow through managing the day to day needs of the children and her. She needs reminders to follow through with appointments for the children and her. [Mother] recently had her 6th child and multitasking all of her children’s school needs, health care needs, and housing appears to be overwhelming.

CP 146, pg. 5.

The Tribe next argues that there is no evidence in the record that the mother “supported her oldest daughter during in-patient treatment.” We agree. There is no evidence in the record that shows the mother’s efforts to support her daughter during in-patient treatment. The Tribe’s evidence during the reporting period covered by the 4th Review Hearing refers to a previous incident in which the mother had a CPS referral for giving her daughter unprescribed Oxycodone “due to not knowing what else to do since [daughter] was in pain and crying.” CP 146, pg. 6.

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 116

Argument of legal counsel is not evidence and the Children’s Court cannot base findings of fact on the statements of the mother’s attorney. We conclude that the findings by the Children’s Court were contrary to the evidence available to the Court at the fourth review hearing.

E.        The Father

The father had requirements to fulfill under the Family Case Plan issued on November 20, 2008. There was no indication in the record that the father was previously dismissed from the case or relieved of his requirements to comply with the Family Case Plan. Yet, the father’s compliance was not addressed in the order that ultimately dismissed the case. The only reference to the father was found in paragraph six of the Order on 4th Review Hearing:

At the last review hearing both the Father and Mother stated on record that they are no longer domiciled together.

CP 160, pg. 2.

This finding as to the domiciliary status of the parents is contradicted by the Family Preservation Status Report dated November 4, 2009. CP 146. The Report indicated that as of October 4, 2009, the mother and father were evicted from their house by Puyallup Tribal Housing Authority and were going to be sharing a residence until the mother could obtain suitable housing. Id. This information indicates that the mother and father lived together after the August 27, 2009 third review hearing.

The finding is further contradicted by the Order on 3rd Review Hearing as to Father:

At the August 27, 2009 hearing concerning the father, PTCS requested removal of the father from the residence he lives in with the mother, the child and the child’s siblings. PTCS specifically asked that the father leave the home and “demonstrate long-term stability and sobriety” before being allowed to live back in the home.

The Court denies that motion because this presiding judge does not find that evidence has been presented to show any immediate danger to the child and or her siblings that would warrant removal of the father from the home.

CP 135, pg. 5.

This determination by the Children’s Court in the Order on 3rd Review Hearing as to the father is inconsistent with the findings relied upon for dismissing the case, in regards to the domiciliary status of the parents at the third review hearing.

9 NICS App. 105, IN THE WELFARE OF FOUR INDIAN MINORS (June 2010) p. 117

Even if the father and mother were no longer domiciled together, it can be reasonably presumed that the father would continue to have visitation with the children and contact with the mother. Based on the initial probable cause determination that the children were in need of care, because “the children had been or are likely to be physically and psychologically abused by parents…”, there should have been findings and an order to address visitation or restrictions to protect the children. Compliance with the Family Case Plan is necessary to help resolve the problems that impair the father’s ability to be a safe and stable caregiver.

We conclude that the Children’s Court finding regarding the father’s domiciliary status with the mother was contrary to the evidence available to the Children’s Court at the fourth review hearing.

V.    CONCLUSION: HOLDING AND ORDER

This Court holds that the Children’s Court decisions were contrary to the evidence available prior to issuing its January 20, 2010, Orders on 4th review hearing. Those orders are hereby VACATED and these cases are REMANDED to the Children’s Court to modify the Family Case Plans to specify the actions the parents must take to resolve the family problems, as they currently exist, that led to the dependency cases, and set forth time frames to accomplish such actions before the cases can be closed based on findings made in a manner consistent with this opinion.

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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.

This appeal involves the dependency cases of four siblings. Because the issues are similar for all four cases, the Court has taken one case, that of L.S., to review as representative of the four cases.

The Opinion of the Court was filed on February 10, 2010 under the caption “in the Welfare of Five Indian Minors”, and included Cause No. PUY-CW-09-08-067, because there were originally five children subject to the proceedings. Since the filing of that opinion, one of the children has turned eighteen.

“CP” references are to the Clerk’s Papers, with the number referencing the tab number, rather than a page number, of the respective document.

The difference between the Order on 4th Review Hearing as to Mother for in-home dependency, CP 159, and the Order on 4th Review Hearing for in-home dependency, CP 160, is that the latter addresses in the findings that the father and mother are no longer domiciled together.

Subsequent to the entry of this Court’s Opinion in the first appeal and the briefing on the second appeal, the Tribe renumbered its codes as part of a project leading to publication of the entire Puyallup Code on-line. The primary citations to the code in this opinion are to the renumbered on-line version, which can be found at: http://www.codepublishing.com/WA/puyalluptribe/.

Now PTC 7.04.030(f).

PTC 7.04.590 (formerly PTC 7.01.1455) provides as follows: “Court order for continuing removal. The Court shall specify in its order the necessary intervention and appropriate steps, if any, the parent(s), guardian or custodian must follow to correct the underlying problem(s).”

Sterling Reference Laboratories reports.

Throughout the record vague and inconsistent terms are used to identify the mother’s domestic partner, who may or may not also be the father of the children, such as “significant other”, “father” and “partner”. It is not clear from the record if this is the same person for all the children. In order to prevent confusion in identification of parties, it is a best practice to identify the specific person by name in the Family Case Plan to make it clear who is supposed to abide by the specific case plan requirement.

Report for 4th Review Hearing in Case No. PUY-CW-09/09-064, pg 2.

This Court was informed at oral argument that the drafter of the Family Case Plan was the Puyallup Tribe Children Services, which was then adopted by the Children’s Court as part of the November 20, 2008 order.

Family Case Plan in the Order on Dispositional Hearing issued on November 20, 2008.

Report for 4th Review Hearing in Case No. PUY-CW-09/08-064, pg. 2.