IN RE WELFARE OF A.C. and D.Z.C.

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019)

IN THE PUYALLUP TRIBAL CHILDREN’S COURT OF APPEALS

PUYALLUP INDIAN RESERVATION

TACOMA, WASHINGTON

In Re Welfare of: A.C. and D.Z.C.

Venetia Case, Respondent/Appellant,

Puyallup Tribe Children’s Services, Petitioner/Appellee.

NO. PUY-CV-AP-2018-0078 (March 14, 2019)

SYLLABUS^*

Appellant alleged Children’s Court erred when it continued the out-of-home placement of her children because the court relied on inadmissible hearsay evidence, did not give proper deference to guardian ad litem’s recommendations, failed to recognize that the case plan did not conform to code requirements and its findings did not support continuation of the out-of-home placement. Court of Appeals affirmed Children’s Court order as Court of Appeals did not find error in any interpretation or application in law regarding these issues nor any abuse of discretion by the Children’s Court.

Before:	Gregory M. Silverman, Chief Judge; Ric Kilmer, Judge; Lisa M. Vanderford-Anderson, Judge.
Appearances:	Emily Schultz and Josh Williams, for Venetia Case; Calvin Rapada, Juvenile Presenting Officer, for Puyallup Tribe Children’s Services.

OPINION

Per Curiam:

This matter comes before the Puyallup Children's Court of Appeals pursuant to the Notice of Appeal filed June 21, 2018, by Appellant, Venetia Case, mother of A.C. and D.Z.C., appealing the Findings, Conclusions of Law, Discussion and Order of the Puyallup Children's Court entered on May 23, 2018.

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 29

A.C. and D.Z.C. are the children of Venetia Case and Rigoberto Zamora-Calvo. In February of 2017, A.C. was 10 years old, D.Z.C. was 11 years old, and they were both living with their father. Their parents had divorced and, pursuant to the July 2016 Puyallup Children's Court Parenting Plan, the father enjoyed joint legal custody and primary physical custody—especially during the school year.

On February 15, 2017, Puyallup Tribe's Children Services received a Child Protective Services (CPS) referral from the State of Washington concerning the children. The day before, the police had taken the children into protective custody. On February 14, 2017, in the afternoon after school, the children’s father had locked the children out of their apartment and left in his car, telling them to sit in the unheated stairwell of the apartment building and wait for his return.

Eventually, the children called their mother for help. Ms. Case, who was recovering from surgery and unable to drive, called the police and sent a friend to retrieve the children; but by the time the friend arrived, the children were already in protective custody. The children told the police officers who took them into protective custody that they had been sitting in the cold stairwell without access to a bathroom for over three hours.

On February 22, 2017, as a result of the father’s abandonment of the children and the mother’s inability to care for them due to her recent surgery, Puyallup Tribe's Children’s Services filed a Child/Family Protection Petition with the Children’s Court of the Puyallup Tribe, asking the court to find that A.C. and D.Z.C. Children to be “in need of care” and to intervene and supervise their care. The Puyallup Tribe's Children’s Services also moved the court for authorization to pick up the children from the State, to make an emergency placement of the children, and to be granted temporary custody of the children. The Children’s Court granted the motion and the children were placed with their cousin pursuant to PTC 7.04.840.

As required by PTC 7.04.03, within 72 hours of the removal of the children, an Initial Hearing was held on February 24, 2017. This Initial Hearing was continued and ultimately concluded on May 5, 2017, at which time the Children’s Court found that it was reasonable to believe that continuing absence from the home was necessary to protect the well-being of the children. At this time, the Children’s Court also set a date for a formal hearing to address unresolved issues within 90 days pursuant to PTC 7.04.490. Subsequently, the children’s mother waived the 90-day requirement for the formal hearing and moved the court to appoint a guardian ad litem for the children. The Children’s Court granted this motion and appointed a guardian ad litem (GAL) on June 16, 2017. The GAL submitted her initial report on September 19, 2017.

After the GAL submitted her initial report, four status hearings followed in September, October, November and December. Although the formal hearing was originally scheduled for February 2, 2018, due to scheduling conflicts and requested postponements, it did not begin until May 11, 2018. The day before the formal hearing was held, the GAL filed a supplemental report in which she recommended that the children be returned to the care of their mother or, in the alternative, that the children be returned to their mother’s home as a home dependency or with in-home services and support.

Throughout these proceedings, the children’s mother was an active participant, but the father was completely absent. The Tribe was forced to make service by publication on the father and he never attended a single court session. The case was defaulted as to him.

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 30

Following the formal hearing, on May 22, 2018, the Children’s Court issued its Findings, Conclusions of Law, Discussion and Order (Order). In its Order, the Children’s Court concludes, inter alia, that the children are Children In Need of Care pursuant to PTC 7.04.030(f), that the allegations contained in the Child/Family Protection Petition are true, that continued intervention and supervision is warranted under PTC 7.04.610, and that specific steps should be ordered pursuant to PTC 7.04.620 in order to correct underlying problems as required by PTC 7.04.640. It is this Order that the children’s mother now appeals.

PTC 4.16.400(a), (c) and (d) provide the applicable considerations this Court can apply, in deciding whether to affirm, reverse, modify or remand the Tribal Court's order: where “there has been an abuse of discretion that prevented a party from receiving a fair trial”; “there has been error as to interpretation and/or application of the law by the Judge”; or the “decision is contrary to the law and evidence.”

The children’s mother (Appellant) argues on appeal that the Children’s Court committed several errors below and asks this Court of Appeals to reverse the Order of the Children’s Court issued on May 22, 2018. Fundamentally, the Appellant claims that the Children’s Court erred when it continued the out-of-home placement and failed to return the children to the care of the mother as recommended by the guardian ad litem. The Children’s Court was led to this erroneous decision, according to the Appellant, because: (1) its findings do not support its continuation of the out-of-home placement; (2) it relied on inadmissible hearsay evidence; (3) its case plan does not conform to the requirement of PTC 7.04.620; and (4) it did not give proper deference to the recommendations of the guardian ad litem. We consider each of these claims in turn.

A. Appellant’s Claim that the findings of the Children’s Court do not support its continuation of the out-of-home placement.

There are three possible outcomes to a formal hearing on a Child/Family Protection Petition: 1) the Children’s Court may dismiss the petition; 2) continue its intervention and supervision while returning the children to the home; or 3) order that the children remain out of the home. See PTC 7.04.590, 600 and 610. The Puyallup Tribal Code sets out a three-step process by which one of these three outcomes is achieved.

Step One: The Children’s Court must determine whether the allegations contained in the Child/Family Petition are true. If the Court finds that the original allegations in the petition are not true, then the petition should be dismissed. PTC 7.04.590. Otherwise the Court should continue with the second step.

Step Two: If the Children’s Court finds that the allegations in the petition are true, then the Court must determine if there are grounds for continuing the removal from the home. If the Children’s Court finds that there are grounds for continuing the removal from the home, then the Court should order that the children remain out of the home. PTC 7.04.610. Otherwise, the Court should continue with the third step.

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 31

Step Three: If the Children’s Court finds that there are no grounds for continuing the removal, then the Court must determine if there are unresolved problems in the home that require the Court to continue its intervention and supervision. If the Court finds that there are unresolved problems in the home, then the Court should continue its intervention and supervision as appropriate. PTC 7.04.600.

The Appellant argues that the Children’s Court erred in step one by finding that the allegations contained in the Child/Family Protection Petition were true at the time the petition was filed. Appellant argues that the Children’s Court instead should have determined whether the allegations in the petition were still true at the time of the formal hearing. In effect, the Appellant is arguing that if the Children’s Court had focused on whether the allegations in the petition were still true at the time of the formal hearing, then the Court would have been forced to conclude that the allegations were no longer true of the children’s mother at that time and, a fortiori, would have dismissed the petition.

In making this argument, however, the Appellant confuses the operation of PTC 7.04.610 in step two with the operation of § 7.04.590 in step one. In step one, the Court must evaluate the truth of the allegations in the petition. The allegations in the petition are declarative tensed statements. Specifically, they are statements written in the present tense. When a person utters or writes a declarative statement in the present tense, that person is asserting that the statement is true at the time it is uttered or written. Accordingly, the truth of the statement must be evaluated as of the time it is uttered or written. Thus, when § 7.04.590 requires the Children’s Court to “either find the allegations of the child/family protection petition to be true or dismiss the child/family protection petition”, it is requiring the Court to determine whether the allegations were true at the time that the petition was filed.

Consider, for example, the allegation in the present petition about which the Appellant is most concerned. The Petition alleges that the Appellant’s children are Children in Need of Care because they have “no parent, guardian, or custodian able or willing to provide care.” Child/Family Protection Petition at 1. When this statement was written, the petitioner placed it in the present tense because he was claiming it was true at the time that he wrote it. Nor was this fact disputed at the formal hearing. Both Appellant and Appellee agree that when the statement was made, it was clearly true: the children’s father was unwilling to provide care, and the children’s mother, because of her recent surgery, was unable to provide care. Accordingly, it is not at all surprising that the Children’s Court found this allegation in the Petition to be true, and a fortiori, that the children were Children in Need of Care at the time the Petition was filed.

In her attempt to avoid the plain meaning of PTC 7.04.590, and get the Petition dismissed, the Appellant focuses our attention on two provision of the Child and Family Protection Code. First, the Appellant quotes PTC 7.04.580, which states in relevant part that in a formal hearing, “[t]he petitioner must prove that the allegations raised in the child/family protection petition are more likely true than not, that is, by the preponderance of the evidence.” Interpreting this language, the Appellant claims that: “the clear and unambiguous language of PTC 7.04.580 places the burden on the Petitioner to prove that the allegations ‘ARE more likely true than not.’ This present tense language means that the allegations in the petition must still be present and exist at the time of trial.” Appellant’s Opening Brief at 8.

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 32

But here Appellant’s interpretation has gone astray. The Appellant fails to recognize that by the time of a formal hearing, the allegations in a petition are statements about the past. Statements about the past are true today if they accurately describe the past. Accordingly, the relevant question is whether the allegations in the Petition accurately describe the status of the children at the time the Petition was filed.

In answer to this question, the Children’s Court concluded that “[t]he allegations of the petition are true pursuant to PTC 7.04.590.” Order at 4. In finding that the allegations of the petition are true, the Court was finding that certain allegations about the past were true, namely that on February 22, 2017, when the present Petition was filed, it was true that the children did not have any parent, guardian or custodian able or willing to provide care. Whether the children still do not have any parent, guardian or custodian able or willing to provide care is a separate question, and one the Children’s Court is not required to answer by PTC 7.04.590.

The other provision of the Child and Family Protection Code on which the Appellant focuses our attention in her attempt to avoid the plain meaning of PTC 7.04.590 is the definition of “Child in need of care” This argument suffers from a similar defect. Section 7.04.030 (f) defines a “Child in need of care” as:

(1) A juvenile who is in need of proper and effective parental care or control and has no parent or guardian or custodian able or willing to exercise such care or control;

(2) A juvenile who has not been provided with adequate food, clothing, shelter, medical care, education or supervision, by his or her parent(s), guardian or custodian necessary for his or her health and well-being;

(3) A juvenile who has been abandoned by his or her parent(s), guardian or custodian;

(4) A juvenile who has been or is likely to be physically, emotionally, psychologically or sexually abused by his or her parent(s), guardian or custodian;

(5) A juvenile who has been sexually abused by his or her parent(s), guardian or custodian;

(6) A juvenile whose parent(s), guardian or custodian have knowingly, intentionally or negligently:

(A) Placed the child in a situation that may endanger his or her life or health; or

(B) Tortured, cruelly confined or cruelly punished him or her;

(7) A juvenile who has committed delinquent acts as a result of parental pressure, guidance or approval.

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 33

According to the Appellant: “[t]hat PTC 7.04.030(f)(l) is written in the present tense and PTC 7.04.030(f)(2-7) are written in past tense should be presumed to be indicative of the legislative intent that (f)(l) should be applied to the present.” Appellant’s Opening Brief at 8. Here the Appellant fails to distinguish a definition from its application. The use of the present tense in a definition does not mean that the definition must be applied to present circumstances.

A definition simply expresses the general conditions that must be satisfied for the defined term to apply, irrespective of whether one is applying that term to circumstances in the past, present or future. In this respect, a definition, like the mathematical statement ‘2+2=4’, is a general, timeless statement. Thus, according to the definition of a child in need of care in PTC 7.04.030(f), children who do not have a parent, guardian or custodian able or willing to provide care on February 22, 2017, are children in need of care on February 22, 2017, while children who do not have a parent, guardian or custodian able or willing to provide care on May 5th, 2018, are children in need of care on May 5th, 2018. A child may have satisfied the definition in the past, but may not satisfy it in the present, and vice versa. Whether a term’s definition applies at one moment in time is a separate question from whether it applies at another time.

Accordingly, the Children’s Court did not err when it concluded that “[t]he allegations of the petition are true pursuant to PTC 7.04.590.” But this conclusion is only relevant to step one of the required analysis. Having determined that the allegations of the petition are true, the Children’s Court had to continue to step two.

In step two, pursuant to PTC 7.04.610, the Children’s Court must determine whether there are grounds for continuing the removal of the children from the home. Section 7.04.610 lists seven grounds for continuing the removal: section 7.04.610(a)-(g). On the basis of its findings, the Children’s Court concluded that “[c]ontinued intervention and supervision should be ordered pursuant to PTC 7.04.560¹ and 6.04.610 due to the findings of the court entered herein above and pursuant to 7.04.610(a) (c) (g).” Order at 4. Any one of these three alone would be sufficient to justify continuing the removal of the children.

The seventh ground listed is PTC 7.04.610(g): “The child has suffered, or is likely to suffer, emotional damage which causes or creates a substantial risk of impaired development.” From the Children’s Court’s discussion of its findings and conclusions, it is clear that the Court is particularly concerned that if the children are returned to their mother’s home, they are “likely to suffer emotional damage which causes or creates a substantial risk of impaired development.” The Court noted that:

All of the findings together present the court with a situation that contains the following that are of concern to the court: the mother Venetia Case has a history of relationships in which she was the victim of domestic violence, including the one she is in with Jarvis Big Lake; she has refused to acknowledge being the victim of domestic violence by Jarvis Big Lake in the fact of a police report that clearly shows she was; Jarvis Big Lake was convicted of kidnapping, and assault on a female on 9/1/16; he has not been evaluated for his domestic violence behavior although recommended to do so by the GAL...

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 34

Id. The Court continued:

Here we have two incidents of domestic violence we know about which are within a year of each other. The incidents themselves were violent Incidents, not minor. The children must be shielded from such violence as it has a profound, damaging long lasting effect on the children. The court has to take measures to ensure that the children will not be exposed to further domestic violence.

Id. at 5 (emphasis added). The italicized language shows that among the three reasons cited by the Court for continuing the removal of the children from the home, the Court places the greatest weight on section 7.04.610(g). Moreover, the findings regarding possible domestic violence in the home and the evidence supporting them are sufficient to justify the Court’s reliance on section 7.04.610(g) to continue the removal of the children from the home.

B. Appellant’s Claim that the Court Improperly Admitted Hearsay Evidence

Appellant also argues that the Tribal Court violated rules of evidence by allowing hearsay evidence and “irrelevant evidence.” In particular, the Court admitted Exhibits B, C, D, E, F and G over her objections. These exhibits primarily concerned past CPS referrals, past domestic violence police reports concerning the mother and her then-boyfriend, relations between previous partners, and a letter from a mental health counselor regarding the children's ongoing needs.

Without entering into the details of the different exhibits and testimony to which the Appellant objects, we need simply note that even if the exhibits and testimony to which the Appellant objects constituted or included hearsay, this would not be a basis for reversing the Order of the Children’s Court. Under the rules of evidence applicable in a formal hearing, hearsay is allowed.

Section 7.04.130 states that “[t]he procedures in the Children’s Court shall be governed by the rules of procedure for the Tribal Court which are not in conflict with this Code.” Moreover, section 7.04.520 states that although “[t]he records of the initial hearing shall not be admissible at the formal adjudicatory hearing [, t]his shall not be construed to prevent the admissibility of any evidence that was presented at these hearings which would normally be admissible under the Court’s rules of evidence.” Both of these sections indicate that a formal hearing in the Children’s Court is conducted according to the normal rules of evidence in the Tribe’s Civil Procedure Code.

PTC 4.08.220 of the Tribe’s Civil Procedure Code “governs the presentation of evidence in civil actions.” Although it allows the Court to order, or the parties to agree to, the application of other rules of evidence, this was not done in present case. Accordingly, the default general evidence rules set forth in PTC 4.08.220 apply in the preset case. These rules are:

(a) Evidence presented in a civil action in the Puyallup Tribal Court must be related to the issues before the Court. When questioned by the Judge or another party, the party who wishes to present certain evidence shall explain why he or she thinks the evidence is relevant;

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 35

(b) Where there is more than one kind of evidence about the same subject, the Court should allow the most reliable kind of evidence;

(c) The testimony of persons having personal knowledge, such as firsthand observation and direct knowledge of or participation in a described event, shall be preferred and be afforded greater weight than the testimony of persons with second hand knowledge of the event;

These three sub-sections of PTC 4.08.220, read together, provide that all relevant evidence is admissible, and that there can be more than “one kind” of evidence. The Court is instructed only that it “should”—not must—allow the “most reliable kind of evidence.” And subsection (c), specifically and explicitly is about second-hand—hearsay—evidence. Any such hearsay evidence, if relevant, is admissible, although firsthand evidence is preferred.

Appellant argues, however that PTC 7.04.460, governing the Initial Hearing in child-in-need-of-care proceedings “allows for hearsay in informal hearings but that this express allowance of hearsay is NOT expressly authorized in the rules pertaining to adjudicatory hearings....” Appellant's Opening Brief at p. 11. She also argued, particularly at oral argument, that PTC 7.04.560, which allows for a child hearsay exception, is further proof of Puyallup legislative intent, that hearsay evidence in these Chapter 7.04 child protection cases is limited to only these two instances and that hearsay evidence is therefore not allowed elsewhere in this Chapter.

But we do not read the evidence rules that way. Just because Chapter 7.04 explicitly allows for the admission of hearsay evidence in two instances, this does not entail that hearsay evidence is not allowed elsewhere in that Chapter. As already noted, section 7.04.520 implies that the rules of evidence set forth in the Tribe’s Civil Procedure Code should govern proceedings in the Children’s Court, and these rules permit relevant hearsay. Moreover, PTC 7.04.460 emphasizes that Initial Hearings regarding the removal of a child in dependency hearings are informal; and that in “the Court’s discretion, hearsay evidence may be admissible.”

That hearsay evidence is admissible in a formal hearing is further confirmed by section 7.04.560: the Child Hearsay Exception. PTC 7.04.560 allows for the hearsay statements of children under the age of eleven if there is also some corroborative evidence. Section 560 goes on to state that the “Judge may look at the weight of the evidence, taking this hearsay exception into account, while looking at other reliable corroborative evidence in light of this rule.”

In short, we find nothing in the Child and Family Protection Code that supports Appellant’s contention that the admission of hearsay is limited to only two instances in an Initial Hearing. Rather, liberally interpreting and constructing the Code,² we read the Child and Family Protection Code as incorporating PTC 4.08.220 and, therefore, as allowing all relevant evidence to be admitted, even hearsay evidence. While firsthand personal knowledge is preferred, and is to be “afforded greater weight than the testimony of persons with secondhand knowledge of the

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 36

event,” hearsay evidence is admissible. Accordingly, we hold that all relevant evidence is admissible in civil proceedings generally and in under all Chapter 7.04 proceedings in particular.

Our conclusion applies equally to documentary and testimonial evidence. All relevant evidence is admissible, both documentary and testimonial.³ If there is a CPS history, the Court should know about it. In fact, PTC 7.04.300 requires that mandatory reporters include in their reports to the Tribe's Children's Services department any previous CPS referrals and outcomes of abuse or neglect of the child or his siblings, if known. We would expect the Tribe, in turn, to share any such information with the Court, even during adjudicatory proceedings. (Obtaining the appearance and firsthand testimony of the original CPS referral participants would likely be difficult for many obvious reasons.) In fact, PTC 7.04.310 requires that such reports, investigations and evaluations be maintained in a Central Registry and “shall be made available only with the approval of the Director of the Department to the Children’s Court” and others. Therefore, the Court should be able to admit into evidence any relevant hearsay evidence—subject to the general evidence rule of PTC 4.08.220, preferring any firsthand evidence that may be available, and giving it such weight as the Court, in its discretion, deems appropriate.

Any evidence of alleged domestic violence in the home, and relationships with other partners, also paints a fuller picture for the Court to help it in its decisions to protect the children and family and devising any case plan. Thus, along with past CPS referrals, this too should be available to the Court.

The only issue, therefore, is whether the Court abused its discretion in admitting the exhibits to which the Appellant objected. “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.” In the Welfare of Five Minor Indians, 9 NICS App. 61, 69 (Puyallup Court of Appeals, 2010). Moreover, a judge is to be accorded broad discretion in determining the probative value of proffered evidence.⁴

In light of this deference owed to the trial Court and the broad discretion accorded to the trial judge, we cannot not find that the judge has abused his discretion in the present matter, nor that there has been error as to the interpretation or application of the law by the Judge resulting from the Court’s admitting the exhibits over Appellant's hearsay objections.⁵

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 37

C. Appellant’s Claim that the Case Plan does not conform to the requirements of PTC 7.04.620.

The Appellant also argues that this Court should reverse the Order of the Children’s Court because the case plan is contrary to law. The relevant law is PTC 7.04.620. If the Children’s Court concludes that there are grounds under section 7.04.610 for continuing the removal of the children from the home, then “[t]he 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).” PTC 7.04.620.

According to the Appellant:

the case plan addresses primarily the court's finding that there has been one act of domestic violence committed by Ms. Case's husband, Jarvis Big Lake, against Ms. Case, that Ms. Case has a history of relationships with domestic violence, and that the court has continued concerns about whether or not Mr. Big Lake has addressed past alcohol issues. There is no discussion as to the how the court is addressing the underlying parental issue that was the basis for the dependency: the fact that Ms. Case could not be physically present in February of 2017 to pick up the children due to her medical restriction at the time. The fact that the Order doesn't address this issue is, in fact, logical: the issue no longer existed. However, the PTC requires, then, that the children be returned home immediately. If there is no longer an underlying problem, there is no need for a case plan to address it or to warrant continued removal.

Appellant’s Opening Brief at 14 (emphasis added).

From the preceding passage, it is clear that the Appellant interprets the phrase “underlying problem(s)” in section 7.04.620 as referring to the circumstances that justified the children’s status as children in need of care and set forth in the Child/Family Protection Petition. In the present case, those circumstance were the Appellant’s inability to retrieve her children on February 14, 2017 due to her recent surgery. But for her surgery, it would not have been true that the children did not have “any parent, guardian or custodian able or willing to provide care.” If the Appellant’s interpretation of this phrase were correct, her argument would be a compelling one. The Appellant’s interpretation, however, is not correct.

PTC 7.04.620 only applies after the Court identifies a reason for continuing the children’s removal from the home under section 7.04.610. If it were not for the grounds under section 7.04.610 that justified continuing the removal of the children from the home, the children would be returned home. Thus, the underlying problem(s) that need to be addressed are the problem(s) that gave rise to the grounds identified by the Children’s Court for continuing the removal. Only after these problem(s) are addressed and corrected will there no longer be any grounds for continuing the children’s removal from the home.

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 38

The Appellant has failed to appreciate that the reason for finding that the children were children in need of care and their original removal from the home may be wholly different from the grounds for continuing their removal under PTC 7.04.610. It might very well be that the children were initially children in need of care because they did not have any parent, guardian or custodian able or willing to provide care, but it may also be true that although their mother is now able to provide that care, if they are returned to the home, the children may be likely to suffer emotional damage which causes or creates a substantial risk of impaired development.

Clearly, in the present case, the Children’s Court is worried that given the Appellant’s history of relationships with domestic violence and the Court’s finding that there has been one act of domestic violence committed by her husband, that the children may suffer emotional damage due to acts of domestic violence in the home. It is, therefore, the possibility of domestic violence that is the underlying problem that the Children’s Court must address in its Order pursuant to section 7.04.620. A perusal of the Children’s Court’s introduction to its Order reveals that this indeed is the principal underlying problem that the Court is attempting to address. The Court said at p. 5 of its Order:

I want Mr. Big Lake to be able to be a part of the family with Ms. Case and the children, and I think he can be with the right measures ordered by the court and his and Ms. Case's cooperation. There is a great chance of success if this is done.

With regard to the domestic violence Mr. Big Lake has committed, a domestic violence evaluation with divulging of the domestic violence he has committed is necessary to determine what steps are necessary to prevent further domestic violence, which of course can have a damaging effect if the children are around it.

Time is of the essence in this case on the part of Ms. Case and Mr. Big Lake.... The children have been out of the care of Ms. Case for a year now, and the steps the court deems necessary need to be started as soon as possible to effect early reunification. The court hopes that the welfare of the children will be most important and they will make the adjustment necessary to fulfill the requirements the court will impose in the order which follows.

Accordingly, we cannot agree with the Appellant that the Order of the Children’s Court is contrary to the law.

D. Appellant’s Claim that the Court Completely Ignored the Guardian ad Litem’s Recommendations

Appellant argues that the Court committed error when it allegedly failed to “give proper deference to the recommendations of the Guardian ad Litem.” Appellant's Opening Brief at p. 12. She then claims that the Court disregarded the GAL's recommendations. Id.

A guardian ad litem is “person appointed by the Court to represent the child’s interests before the Court.” PTC 7.04.030(y). “At any stage of the proceedings conducted under this Code the Children’s Court may appoint a guardian ad litem for the child, without affecting the

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 39

right to counsel of the parent(s), guardian(s) or other legal custodian(s), to act as a representative for the child’s best interests.” PTC 7.04.210.

Other than those two code sections, there is no further mention of GALs in the dependency sections of the Chapter 7.04. There is no statutory requirement that the Court must adopt the GAL's recommendations. Neither is there any section specifying what degree of deference the Court is to give to the recommendations. And we do not agree with Appellant's contention that the Court completely disregarded the GAL's recommendations. As Appellant admits at p. 12 of her opening brief, the Court specifically referenced those recommendations at Findings of Fact #19-22.

In her supplemental report filed the day before the formal hearing, the GAL recommended that the children be returned to the mother’s home. Although the Children’s Court did not adopt this recommendation, the mere fact that the Children’s Court did not do so is not reversible error. The relevant inquire is whether the Children’s Court “completely ignored” the GAL’s evidence and recommendations or took them into account in reaching its decision. While the former is error, the latter is not. See In re Welfare of Five Indian Minors, supra at 74,(“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. . . . 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.”)(emphasis added); accord In re the Guardianship of a Tulalip Minor, 13 NICS App. 12, 19 (Tulalip Tribal Court of Appeals, 2015)(“The trial court [ ] erred by disregarding the only independent evidence of what constituted the best interests of the child.”)(emphasis added).

Reviewing the record, the Appellant’s contention that the Court disregarded all of the GAL’s evidence and recommendations cannot be sustained. First, in the GAL’s report filed on July 21, 2017, the GAL recommended that the Appellant’s husband undergo a drug and alcohol evaluation as well as a domestic violence assessment. The Court accepted this recommendation and in the first two paragraphs of its Order required the Appellant’s husband to undergo a drug and alcohol evaluation and a domestic violence assessment.

Second, in the section of the Order entitled Conclusions of Law, in response to the GAL reporting that the caregiver with whom the children had been placed “was going out a lot at night since she and her husband broke up” and “was coming home in the early morning hours,” the Court concluded that “[t]he placement of the children is not adequate and must be changed.” Moreover, in the Order itself, the Court included a paragraph requiring that Puyallup Tribe Children’s Services “arrange for a different placement for the children.” Order at 5 & 6.

Third, in the section of the Order entitled Findings of Fact, the Court goes into great detail about the three reports submitted by the GAL, demonstrating that the Court read them in a thorough and careful manner.

Finally, in the discussion section of the Order, sensitive to the fact that it is not going to follow the GAL’s recommendation, the Court explained why it is pursuing a different approach than the one recommended by the GAL. Therein, the Court writes that “[i]t should be noted that this judge has been the presiding judge in specialized healing to wellness and domestic violence

17 NICS App. 28, IN RE WELFARE OF A.C. and D.Z.C. (March 2019) p. 40

courts in Indian Country for a considerable time, and the experience gained in those courts are what is driving the measures to protect the children.”

Accordingly, although the Court did not enter into a lengthy and explicit discussion of the GAL’s different recommendations in the section of the Order entitled “Discussion,” in reaching its decision it clearly took into account the evidence and recommendations provided by the GAL. We find no error in any interpretation or application in the law regarding this issue, nor any abuse of discretion by the Court.

For the foregoing reasons, this Court holds that under the standards set forth in PTC 4.16.400, the Children’s Court did not commit reversible error in the present matter. Accordingly, the Order the Children’s Court is affirmed.

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.

While the Court cites section 7.04.560, in the present context it appears to be a scrivener’s error and the section intended is 7.04.590.

See PTC 7.04.020 (“The Child and Family Protection Code shall be liberally interpreted and construed to fulfill the following express purposes[.]” Various purposes concerning children and their families are then enumerated.).

PTC 4.08.220(d) provides: “Copies of written records, photographs, and other documentary evidence may be presented as long as they are reliably identified by the party offering them or if they are certified as true and accurate copies by a reliable source.”

PTC 7.04.570, which authorizes the Court to conduct unrecorded in-camera interviews with children under age 18, presumably with no one else present, including the parties, is further proof of legislative intent that the evidence rules under Chapter 7.04 are to be liberally applied and the Court is to be accorded broad discretion in this regard. “The Judge has full discretion to consider the probative value of the child’s statements, along with other corroborative evidence, before making a final decision regarding whether to establish a dependency.”

The Appellant also argues that the Order should be reversed because the recording of the formal hearing is inaudible at key moments in the Court’s ruling on Appellant’s objections to the admission of these exhibits. We note that an inaudible recording is not grounds for vacating an order unless the parties are unable to agree about what is missing from the record and the missing parts are essential to determining whether the court committed reversible error. In the present matter, there is no indication that the Appellant attempted to obtain the Tribe’s agreement as to the missing parts of the transcript, nor are the missing parts essential to determining whether the Court committed reversible error.