10 NICS App. 29, In the Guardianship of Three Indian Minors (September 2011)
MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON
NO. MUC-G-04/10-069, -070, and -071 (September 20, 2011; corrected October 17, 2011)
SYLLABUS*
Grandmother filed petitions for guardianship and visitation concerning three grandchildren over the objections of the custodial parent. Youth Court reviewed the petitions under the general guardianship provisions of the Youth Ordinance and denied the petitions based on a finding that the custodial parent was not unfit. Court of Appeals holds that because the petitions collectively alleged that the youth were being neglected and abused, the Youth Court erred in reviewing the petitions under the general guardianship provisions of the Ordinance and should instead have immediately initiated youth in need of care proceedings as required by the Ordinance. Upon taking judicial notice that the Youth Court found the allegations of neglect and abuse to be without merit following a full and fair hearing that was observed by Tribal child welfare and law enforcement personnel, Court of Appeals vacates the Youth Court decision and orders the petitions dismissed with prejudice.
OPINION
Per Curiam:
Petitioner/Appellant appeals from the order of the Muckleshoot Youth Court denying her Petitions for Guardianship of three minors. The Youth Court denied the Petitions because it found that the minors’ mother was fit to care for the children.
This appeal raises a question of paramount importance1 to the Muckleshoot Tribe: May the Muckleshoot Youth Court hear a petition for guardianship under the general guardianship
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provisions of the Muckleshoot Youth Ordinance instead of under the youth in need of care provisions of the Ordinance if the petition alleges that a youth is being abused or neglected? We hold that the Court may not, and we therefore vacate the Order of the Youth Court with instructions as follow.
I. FACTS AND PROCEDURAL HISTORY
Appellant is the maternal grandmother of the three minor children. On April 28, 2010, Appellant filed Petitions for Guardianship for each of the three children, naming the mother, the fathers of two of the children, and the putative father of the third child as respondents.2 The Petitions collectively allege that the mother was not protecting the children from physical abuse by unidentified persons, was not using good reasoning abilities, and was abusing alcohol. The Petitions are on Muckleshoot Youth Court forms which state that “This Court has jurisdiction over this matter pursuant to Chapter 12A.12 of the Muckleshoot Youth Ordinance.” Despite the allegations that the children were being abused and neglected, the Petitions do not seek to initiate a youth in need of care proceeding under MTC 12A.09 and do not mention MTC 12A.09.
On the day the Petitions were filed, the Youth Court issued a Notice of Guardianship Hearing, dated April 28, 2010, setting hearing for July 27, 2010. The Notice of Hearing stated the purpose of the hearing was “to hear testimony to establish a legal basis for the petition and to present evidence as to what is in the best interest of the youth regarding the petitioner’s request for guardianship.” The Notice of Hearing further states “Muckleshoot Indian Child Welfare is required to submit a Guardianship Report with the petitioner’s qualifications and ICW recommendations included.” At no point in this case did the Muckleshoot Indian Child Welfare Program intervene or file dependency proceedings.
On May 19, 2010, Appellant filed a “Motion for Visitation” with the three children. The motion is supported by an affidavit alleging that the children “have suffered tramatic [sic] experiences of being beat” by a babysitter, and that the oldest child was “being sexually molested” by the mother’s boyfriend. On May 20, 2010, the trial court issued a Notice of Hearing for a “Show Cause Hearing For Motion and Affidavit for Visitation” with hearing date set for June 22, 2010. There is no documentation in the trial court record as to whether the June 22 hearing ever occurred.
On the July 27 hearing on the Petitions for Guardianship, Appellant filed a “Trial Brief for Non-Parental Custody.” Petitioner’s brief includes extensive citations to Washington State statutory and common law concerning the ability of nonparents to sue for custody in situations
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where the parents are unfit. The brief alleges that “there is substantial evidence that [the mother] is unfit as a parent and/or a detriment to the children” and repeats and expands upon the allegations made in the petitions and the Motion for Visitation. The brief makes no mention whatsoever of Muckleshoot Tribal law, and as with all of petitioner’s other filings, does not seek to invoke the youth in need of care provisions of the Muckleshoot Youth Ordinance. On that same day, the trial court approved a joint motion by the parties to continue the July 27 hearing to August 10, 2010.
On August 9, 2010, the Respondent filed a written “response” with the Youth Court in the form of an email. The response refuted the Appellant's allegations that the Respondent was unfit, alleged that Appellant’s Petitions were motivated by dislike of the Respondent's former boyfriend, claimed that the Respondent's relationship with the allegedly abusive boyfriend had ended, and claimed that the incidents of abuse alleged by Appellant all occurred while the children were solely in Appellant's care. The matter finally was heard on August 10, 2010. The Youth Court admitted extensive documentary evidence submitted by Appellant, heard testimony from several witnesses, and interviewed two of the three children in chambers.3 On August 19, 2010, the Youth Court issued an order denying all three Petitions for Guardianship. The order included findings that Appellant did not meet the burden of proof and concluded that the Respondent was not “unfit or detrimental to her children.”
II. APPLICABLE LAW
Under the Muckleshoot Tribal Code, the Appellate Court shall decide, by majority vote, all appeals upon the briefs, memoranda and statements filed plus the record of the trial court.4 MTC 9.03.01(g). An appeal shall proceed without oral argument unless either party requests one and convinces the Court of Appeals that oral argument will aid the Court’s decision. The Appellate Court may also decide on its own motion to hear oral argument. MTC 9.03.01(h). No request for oral argument was made by any party and this Court declined to order one.
Upon review of an appeal, the Appellate Court shall either affirm, reverse, modify or amend the decision of the Trial Court. The Appellate Court may also order the matter remanded for further proceedings or for retrial. MTC 9.03.01(i). Decisions on matters of both substance and procedure are to be based, in the following order, on:
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(1) The Constitution and Bylaws of the Muckleshoot Tribe.
(2) Statutes of the Muckleshoot Tribe
(3) Resolutions of the Muckleshoot Tribe
(4) Customary law, customs, traditions and culture of the Muckleshoot Tribe
(5) Laws, rules and regulations of the United States, States, and Indian tribes and cases interpreting such laws, rules and regulations.
(6) The common law.
MTC 9.04.01(a).
The Muckleshoot Tribal Rules on Appeal do not set forth standards of review for this Court, but direct this Court to look to the rules and procedures of the United States, states, and other Indian tribes where there is no applicable Muckleshoot law. MTC 9.04.01(a)(6), supra. “In the absence of any specified standard of review, we review issues of fact under the ‘clearly erroneous’ standard and issues of law de novo.” Johns and McGhee v. Allen, 6 NICS App. 196, 196-197 (Skokomish Tribal Ct. App. 2004).
Every court has an independent obligation to confirm its own jurisdiction, even when the issue of jurisdiction is not raised by the parties. See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
[T]he law is well settled that where constitutional or statutory provisions limit the jurisdiction of a court, as is the case here, objections to jurisdiction cannot be waived. Indeed, the rule is “inflexible and without exception” and requires the Court to deny its own jurisdiction even when not asked to do so by the parties and even when doing so will result in hardship to a party as a result of the opposing party’s failure to raise the objection.
In the Matter of S.T., 8 NICS App. 81, 83 (Squaxin Island Tribal Ct. App. 2008), citing Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 70 (Hoopa Valley Tribal Ct. App. 2005).
A court’s primary duty in interpreting any statute is to discern and implement the intent of the legislative body. Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). “The starting point must always be the statute’s plain language and ordinary meaning.” Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 69 (Hoopa Valley Tribal Ct. App. 2005). When interpreting a code provision, a court considers not only the meaning of the critical word or phrase but also its purpose and placement in the statutory scheme. Skokomish Indian Tribe, 8 NICS App. at 70.
Guardianships are governed by the Muckleshoot Youth Ordinance, Title 12, Part A. The Youth Ordinance provides very limited circumstances under which the Youth Court may hear petitions for guardianships. Guardianships are allowed in three circumstances: first, at the
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conclusion of a Youth in Need of Care proceeding in which reunification with the parents was not in the best interest of the child, as provided by Chapter 12A.09; second, upon the termination of parental rights as provided by Chapter 12A.10; or third, under the general guardianship provisions of Chapter 12A.12.5
III. DISCUSSION
The Muckleshoot Youth Ordinance establishes a comprehensive scheme designed to protect the welfare and rights of both youth and their families whenever any person has reason to believe that a youth is “in need of care” as defined by the ordinance. A youth in need of care is defined as a child that “has been abused or neglected.” MTC 12.02.020(mm)(2). The Ordinance
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defines “abuse and neglect” to include any non-accidental physical injury of a youth, sexual abuse of a youth, any emotional abuse of a youth, failure of a parent to fulfill parental duties and any other act which is likely to result in substantial emotional or physical damage to the youth. MTC 12.02.020(a)(1-5). Chapter 12A.09 is purposed, in part, “to improve any conditions and home environment which contribute to his need of care or to his delinquency by providing a mechanism for the Muckleshoot Court of Justice and the Muckleshoot social service programs to guide and assist youths in need of care.” MTC 12.01.010. The statutory methods for initiating a Youth in Need of Care proceeding are set forth at MTC 12A.09.010(a)(1)-(5).
The Muckleshoot Tribe has established a process by which the condition of children alleged to be in need of care can be investigated, litigated and remedied. The detailed and elaborate scheme set out in MTC 12A.09 for Youth in Need of Care proceedings make it the Tribe’s intended avenue for deciding questions regarding alleged conduct that falls in line with the statutory definition of “abuse and neglect.” Contrarily, the guardianship provisions of MTC Chapter 12A.12 provide no guidance on timelines, safeguards, or general due process when addressing such allegations.
The Youth Ordinance is absolutely clear that “Any person having reason to believe that a youth is in need of care, as defined in this title, shall immediately report the matter to the tribal law enforcement department, the Youth Home Director, or a Youth Caseworker.” MTC 12A.09.020(a) (emphases added). A report of abuse or neglect then triggers the statutory duties and powers of the specified Tribal authorities to “immediately” investigate the allegations and take action to protect the youth if needed pursuant to MTC 12A.09.030, et seq. Thus, where there is a reason to believe that a child has been abused or neglected, it must be reported to the specified authorities.
The language of 12A.09.020 does not limit or restrict who is to report the matter to the proper authorities - the code supplies the broad term of “any person” without any modifier and without further definition. Reading MTC 12A.09.020 in concert with MTC 12.01.010, which states the purpose of the Youth Ordinance, 12A.09.020 requires any person, including court personnel, as well as actual or potential petitioners, to report the matter to the proper authorities.
Whatever the meaning and effect of Chapter 12A.12 (see footnote 5, supra), it does not provide an avenue for an individual petition outside of the Chapter 12A.09 process when the petition alleges that a youth may be in need of care. In this case, the Youth Court made no finding that the children were Youth in Need of Care, and in any event had no jurisdiction to do so outside of a Chapter 12A.09 proceeding. The youth must first have been adjudged a Youth in Need of Care as defined by Chapter 12.02.020(mm)(2) and the process must have been initiated in accordance with MTC 12A.09.010(a). When youth are adjudged to be in need of care, the Court must approve services for the family and set a target date for the youth’s return home, adoption placement, or for legal guardianship placement. MTC 12.02.020. Because the allegations made by Appellant in her Petitions for Guardianship fit the definitions in Chapter
10 NICS App. 29, In the Guardianship of Three Indian Minors (September 2011) p. 35
12.02.020(mm)(2) of a youth in need of care, the Youth Court should have immediately referred the case to the specified Tribal authorities for investigation, with any further Court action to be conducted strictly in compliance with the Youth in Need of Care Chapter, MTC 12A.09.
By assuming jurisdiction under MTC Chapter 12A.12 over a case such as this that involved allegations of abuse and neglect, and basing its ruling on whether or not Respondent was a fit parent, the Youth Court effectively thwarted the intent of the Tribal Council to protect both youth and parents through the elaborate scheme the Council set out in MTC 12A.09. To cite just one concrete example of the error of proceeding in this manner, a Youth in Need of Care petition alleging abuse and neglect under Chapter 12A.09 logically requires tribal authorities to investigate the allegations of abuse and neglect to determine whether further action is needed, and to do so immediately. MTC 12A.09.030(a). This ensures that a youth who is being abused or neglected receives protection as soon as possible rather than allowing the abuse and neglect to continue. The requirement for an immediate investigation also provides good parents protection against baseless allegations. But by assuming jurisdiction over allegations of abuse and neglect under Chapter 12A.12, pursuant to MTC 12A.12.030 the Youth Court ordered an investigation of the fitness of the petitioner instead of the alleged abuse, and even then, again pursuant to Chapter 12A.12.030, the report that was ordered did not have to be delivered to the Court until two days before the guardianship hearing, which in this case was not held until nearly three and a half months after the Court received the Petitions alleging abuse and neglect. It is simply inconceivable that the Muckleshoot Tribe intended that the Youth Court could receive a petition alleging abuse and neglect of Tribal youth and then follow a process such as the Chapter 12A.12 general guardianship process that would allow the youth to remain exposed to the alleged abuse and neglect for any extended period of time.
By hearing this case and denying the Petitions for Guardianship on the basis of respondent’s fitness under Chapter 12A.12, the Youth Court in effect indicated that it believed it did have jurisdiction and the authority to award guardianships regardless of the requirements of MTC 12A.09 in a case involving allegations of abuse and neglect Such a broad assumption of authority to the Court and lack of guidelines would not serve the purposes of the Youth Ordinance, and we do not believe that was the intent of the Tribe when enacting the Ordinance. It was an error for the Court to assume jurisdiction under Chapter 12A.12 in this case and we therefore vacate the Order of the Trial Court.
Based on our ruling, the Youth Court should immediately stop using and stop providing potential petitioners with any forms that suggest the trial court automatically has jurisdiction over guardianship petitions pursuant to MTC 12A.12. A primary function of a petition under each of the three avenues to guardianship jurisdiction provided for in the Youth Ordinance is to force the petitioner to set forth the specific facts and legal basis that establish the Court’s jurisdiction. See, e.g., MTC 12A.09.130(b)(3); MTC 12A.10.030(a) and (e); and MTC 12A.12.040(c)(3) and (d). By using a form that presupposes jurisdiction regardless of the facts and law, the Youth Court is inducing petitioners to file general guardianship petitions that ignore
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the requirements of the Youth Ordinance. Any form provided by the Youth Court should instead guide petitioners to identify and comply with the specific provisions of the Youth Ordinance necessary to establish the court’s guardianship jurisdiction.
IV. CONCLUSION
This Court holds that MTC Chapter 12A.12 does not provide the Muckleshoot Youth Court with general guardianship jurisdiction in cases where the petition for guardianship or other information received by the Court alleges or otherwise gives reason to believe that a youth is in need of care as defined by the Youth Ordinance. The Court itself must fully comply with MTC 12A.09 whenever a petition or other information received by the Court suggests that a youth is in need of care. We therefore conclude that the Muckleshoot Youth Court lacked jurisdiction to hear this guardianship case. Instead, the Court should have referred the Petitions to the Tribal authorities specified in the Ordinance for proper investigation and possible action under Chapter 12A.09 of the Ordinance, with any further action on the Petitions suspended until such time as the authorities or Petitioner properly commenced a proceeding in compliance with MTC 12A.09.010(a). Based on the above, we vacate the Youth Court’s Order Denying Petitions for Guardianship and, taking judicial notice that the Youth Court found the allegations to be without merit after a full and fair hearing which was observed by Tribal child welfare and law enforcement personnel, we hereby order the petitions dismissed with prejudice.
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.
The Muckleshoot Youth Ordinance recognizes “that the young people of the Muckleshoot Indian Community are the Tribe’s most important resource and that their welfare is of paramount importance to the Muckleshoot Tribe. MTC 12.01.010.
Only the mother appeared in response to the petitions. Therefore, any references to “the Respondent” in this opinion are to the mother.
The court’s Order Denying Petitions for Guardianship indicates that the third child was no longer residing with the mother at the time of the hearing.
Appellant filed an “answer” to the Order Denying petitions for Guardianship and an appeal brief, both of which included numerous claims regarding facts that, by Appellant’s own wording, were not established in any of the hearings before the Youth Court. Appellant’s brief also included a report from a private investigation performed on behalf of Appellant after the Youth Court issued its decision. Because this Court’s review is limited to the record and decision of the Youth Court, we did not consider documents and facts asserted by Appellant that were not part of the Youth Court record. None of the respondents filed briefs.
Chapter 12A.12 is so difficult to interpret that it is unclear if the Youth Court could ever exercise jurisdiction under that Chapter. The first section of Chapter 12A.12 states that a “general guardian” shall be appointed “whenever necessary or convenient, and when no guardian has been appointed … by will ….” MTC 12A.12.010(a) (emphasis added.) Because this section uses the word “or,” the Youth Court arguably is authorized to appoint a general guardian when it is “convenient,” even though not “necessary,” with no definitions or guidelines regarding what is “convenient,” or “convenient” for whom? And because of the placement of the comma after “convenient,” it is unclear whether the “and no guardian has been appointed … by will” clause is intended to limit the appointment of a general guardian to situations where both parents are deceased, or whether the “no guardian has been appointed” clause is simply meant to describe one specific example of when it may be “necessary or convenient” for the Youth Court to appoint a general guardian. Furthermore, MTC 12A.12.050 requires notice of the general guardianship hearing to be provided to the “youth’s parents.” The requirement that notice be provided to the parents suggests that Chapter 12A.12 is not limited to situations where the parents are deceased, and read together with the “whenever necessary or convenient” clause, suggests the Youth Court could appoint a general guardian even when one or both of a youth’s parents is/are alive, has/have legal custody of the youth, and no legal proceeding is pending that would result in termination of the rights of the parent(s). However, such a reading makes no sense, since a “general guardian” would not be able to exercise any of the legal rights or responsibilities of a guardian when one or more of the parents was still alive and exercising their legal rights as a parent, and the “guardianship” would therefore be a legal nullity, unless the parents consented to the transfer of authority to the guardian. However, MTC 12A.12 arguably does not limit the Youth Court’s authority only to those situations where living parents consent, because the Youth Court is specifically required to notify the youth’s parents of the proceeding. MTC 12A.12.050.
Chapter 12A.12 may simply have been intended to provide a process whereby a guardian can be appointed for a youth whose parents are deceased and did not appoint a guardian before passing. In the alternative, Chapter 12A.12 may have been intended to provide a process whereby legal custody could be temporarily transferred to a guardian without permanently terminating the rights of the parent(s). However, the duration of a general guardianship under MTC 12A.12.080 can extend until the youth reaches eighteen years of age, which could arguably allow the Youth Court to terminate a parent’s rights whenever “convenient” with complete disregard for the detailed procedure and safeguards set forth for terminating parental rights in MTC 12A.10.010. We find it hard to believe that the Tribal Council intended to grant the Youth Court such extraordinary discretionary authority, especially given that the purposes of the Youth Ordinance include recognizing the rights of parents as well as youth, sustaining families, and providing “care, guidance and control” for youth “in [their] own home whenever possible.” MTC 12.01.010.
Because we decide this appeal based on the requirements of Chapter 12A.09 of the Youth Ordinance, we need not rule on the meaning of Chapter 12A.12, even though the Petitions in this case were filed under Chapter 12A.12. However, we do take this opportunity to encourage the Tribal Council to revise Chapter 12A.12 to address the issues we discuss here.