21 NICS App. 22, IN PROTECTION OF MC (August 2023)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
Lisa Kaye Ann Collings, Respondent/Appellant,
v.
Denise Jones, Petitioner/Appellee.
NO. TUL-CV-AP-2023-0078 (August 29, 2023)
SYLLABUS*
Appellant argued trial court erred when it termed an Order of Protection – Elder as permanent despite setting a review hearing and also erred when it did not hold a full hearing per the code. Court of Appeals found trial court failed to hold a full hearing with Findings of Fact and remanded to trial court for further proceedings.
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Before: |
Daniel A. Raas, Chief Justice; Daniel A. Brown, Justice; Michael E. Taylor, Justice. |
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Appearances: |
Daniel Ehrlich, for Appellant; Denise Jones, pro se. |
OPINION
Raas, J:
INTRODUCTION AND ISSUE
MC is an adult Tulalip member whom all parties agree is in need of an adult protection order pursuant to TTC 4.30.190. Both Appellant and Respondent are sisters of MC. A proceeding was held in the Tribal Court, after which the Tribal Court issued an Order of Protection – Elder on January 12, 2023. This Order placed restrictions on the Respondent, who timely appealed. We consider two questions in this appeal: (1) Did the Tribal Court err when it termed the Order as ‘permanent’ despite setting a Review Hearing for January 11, 2024, one year after the date of entry of the Order under review? (2) Did the Tribal Court err by not holding a “full hearing” pursuant to TTC 4.30.190(7) and not setting a Review Hearing within six months of January 12, 2023?
21 NICS App. 22, IN PROTECTION OF MC (August 2023) p. 23
Each of these presents issues of law raised by Appellant. Claimed errors of law are reviewed de novo, without giving any weight to the decisions of the Tribal Court. TTC 2.20.090(4).
The relevant ordinance is TTC 4.30.190(7): Full Hearing. “A full hearing shall be set for no later than 35 days from date of the preliminary hearing under this section. At the hearing, the protection order shall be extended for a period of time not to exceed one year if the Court finds by a preponderance of evidence that the order is necessary to protect the elder’s or vulnerable adult’s health, safety or welfare. A review hearing shall be scheduled within six months of this hearing.”
1. Did the Tribal Court err by making the protection order a ‘permanent’ Order?
The Order of Protection in the Caption does not indicate if the Order as “Permanent” or ‘Temporary”: it is simply titled an “Order of Protection-Elder”, and is on a form used by the Tribal Court. On page 5 of the Order this box is checked and this explanation followed:
☐Review Hearing. Parties shall return to Court on January 11, 2024 at 9am for a Review Hearing.
Immediately below this on the form is this text:
Expiration. THIS ORDER is in EFFECT FOR ONE YEAR FROM THE DATE OF THIS ORDER UNLESS NOTED BELOW.
☐ EXPIRATION OF THIS ORDER SHALL BE: (m/d/y);
☒ This shall be a permanent non-expiring order unless changed by further order of this Court. If the duration of this order exceeds one year, the court finds that an order of one year or less will be insufficient to prevent further abuse, neglect or exploitation of the Vulnerable Adult when the order expires.
The second box is checked describing the Order as ‘permanent and non-expiring unless changed by further order of the [Tribal] Court.’ Appellant objects to this description.
Although somewhat ambiguous, when read in its entirety, the Order does not violate TTC 4.30.190(7). By its own terms it is subject to a review process, and is therefore not permanent. There is no extension of the Order for over one year, nor is there a finding that the period of one year would be insufficient to prevent ‘further abuse, neglect or exploitation’ of MC.
(2) Did the Tribal Court err by not holding a “Full Hearing” pursuant to TTC 4.30.190(7) and not setting a Review Hearing within six months of January 12, 2023?
The recording of the January 12, 2023, hearing shows that the Tribal Court conducted a discussion among the interested parties and their counsel. During this conversation, the parties and the Tribal Court explored possible reasons for changing the current guardianship of MC (the vulnerable adult), possible changes that would make the guardianship more favorable to him, and a general concern for his welfare. Such an informal meeting may lead to agreement among the
21 NICS App. 22, IN PROTECTION OF MC (August 2023) p. 24
parties in cases such as these which involve family disagreements. In such cases, if agreement is reached, discord within the family may be avoided and a resolution achieved saving hard feelings and valuable Court time. This follows the teachings in the Tulalip Rules of Court 2.1.2 B.), and in particular (B) v) ‘We show respect to every individual’ and (B) vi) ‘We strengthen our people so that they may walk the good walk’ by attempting to achieve agreement within the family rather than imposing the decision of a third party, the Tribal Court.
However such a result was not attained here, and the Tribal Court issued the Order under appeal here.
TTC 4.30.190(7) does not stand alone. It is a step in the process of insuring that vulnerable adults may receive proper care and supervision when they are unable to protect themselves. TTC 4.30.190. The jurisdiction of the Tribal Court is invoked by the filing of a petition, TTC 4.30.190(3). An ex parte hearing may be held in an emergency, TTC 4.30.190(4)(a), but a preliminary hearing is required to be held within five business days of the filing of the petition either to review the ex parte Order or to consider the validity of the petition. TTC 4.190(5). The nature of this hearing and the evidence that is received are not specified, although the adult for whom protection is sought must be given notice of the hearing and an opportunity to be heard. Id. Then within 35 days of the preliminary hearing a “full hearing shall be set….” TTC 4.30.190(7), above. The nature of this ‘full hearing’ is also not defined, and that is the question presented here. See: TTC 4.30.100 Definitions.
The change in wording from a ‘preliminary hearing’ to a ‘full hearing’ shows that a ‘full hearing’ is more expansive than the preliminary hearing. In the absence of direction from the Tribal Code, we hold that a “full hearing” must include the ability of the Petitioner(s), the alleged vulnerable adult, the appropriate Tulalip tribal agency and any other appropriate parties (which may include family or community members) to receive timely notice of the full hearing; the right to be heard at the hearing including calling, examining and cross-examining witnesses who testify under oath; the opportunity to file such pleadings as the Tribal Court may deem appropriate; and similar rights of notice and participation as may be available to litigants and other parties in civil cases before the Tribal Court.
As has been required for over fifteen years, the Tribal Court shall make and preserve a record suitable for review by this Court which shall include Findings of Fact based on the evidence properly included as part of the ‘full hearing’ and appropriate Conclusions of Law supported by these Findings of Fact. Moses v. Fleek, 13 NICS App. 25 (Tulalip 2015), Neff v. Port Susan Camping Club, 8 NICS App. 32 (Tulalip 2007). The failure to hold such a ‘full hearing’ requires that this matter be remanded for proceedings in accord with this opinion.1
This matter is REMANDED to the Tribal Court to schedule and conduct a ‘full hearing’ as described herein within 35 days of the date of this Opinion. The Order of January 12, 2023, shall remain in effect until further Order of the Tribal Court.
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 Tribal Court shall also set a review hearing of its decision within six months of that decision. TTC 4.30.190(7). We express no opinion as the scope, nature and extent of a review hearing, save that due process must be implemented.