24 NICS App. 1, PENNEY v. MOLINA (February 2026)

IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS

MUCKLESHOOT INDIAN RESERVATION

AUBURN, WASHINGTON

Ice’ Shay Penney, Appellant,

v.

Eustacio Molina, Appellee.

NO.    MUC-AP-09/25-163 (February 6, 2026)

SYLLABUS*

Court of Appeals reviewed custody case on remand and found the trial court’s final order lacked sufficient factual findings and failed to address key evidence, including the Guardian Ad Litem’s recommendations and appellant mother’s actions. Although correct legal standards were cited, court committed clear errors by not fully applying required custody factors and failing to provide adequate findings of fact and conclusions of law. Case remanded for new trial (trial de novo) with instructions to properly evaluate all evidence and comply with Muckleshoot Tribal Code.

Before:

Appearances:

Debra O’Gara, Chief Judge; Jerry R. Ford, Associate Judge; Lisa M. Vanderford-Anderson, Associate Judge.

Ice’ Shay Penney, pro se; Eustacio Molina, pro se.

OPINION

Per curiam:

This is the second time that this child custody action has been in front of this Panel. An Order Remanding to Trial Court was entered on December 17, 2025, requiring the entry of findings of fact and conclusions of law as required by Muckleshoot Tribal Code. We retained jurisdiction until final orders had been entered. On January 16, 2026, the trial court filed its Final Order of the Court on Remand. After review of the entire case, the Final Parenting Plan, and the Final Order of the Court on Remand, this Appellate panel finds insufficient facts set forth to support the determination of the trial court. There is little mention of the actions or inactions of the Appellant Mother and no inclusion of the evidence and recommendations of the Guardian Ad

24 NICS App. 1, Penney v. Molina (February 2026) p. 2

Litem.1 We remand this action for a trial de novo and order the trial court to enter conclusions and findings consistent with Muckleshoot Code and this Order.

STANDARD OF REVIEW

The authority of this Court is set forth in Muckleshoot Tribal Code: 3.02.070 Decisional Authority

(a)    In cases otherwise properly before the court or the Court of Appeals, decisions on matters of both substance and procedure will be based on the following. In the following order of precedent:

(1)    The Constitution and Bylaws of the tribe;

(2)    The tribal code;

(3)    Tribal Council Resolutions;

(4)    Customary law, customs, traditions, and culture of the tribe;

(5)    Laws, rules, and regulations of the United States, states and Indian tribes and cases interpreting such laws, rules, and regulations; and

(6)    The common law.

The Muckleshoot code does not provide a standard of review for this Court. In re the welfare of J.P and B.C-M 20 NICS App. 19,20 (Muckleshoot Tribal Ct. App 2022); See also 0 'Donnell v. Wyand 23 NICS App. 18 (Muckleshoot Tribal Ct. App 2025). Further, in such absence the Muckleshoot Court of Appeals shall review issues of law de novo and finding of facts under the clearly erroneous standard. In the Guardianship of Three Indian Minors, 10 NICS App. 29,32 (Muckleshoot Tribal Ct. App. 2011).

CODE PROVISIONS

The Muckleshoot Code sections applicable to Custody actions include:

14.05.020 Child Custody-Relevant Factors in Determining Custody

(a)    The Court shall determine custody in accordance with the best interests of the child and secondarily the traditions and customs of the Muckleshoot Indian People. The Court shall consider all relevant factors including:

(1)    The wishes of the child's parent or parents as to visitation privileges.

(2)    The wishes of the child, if the child is ten years of age or older, as to his custodian     and as to visitation privileges.

(3)    The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;

(4)    The child's adjustment to his home, school and community;

(5)    The mental and physical health of all individuals involved;

24 NICS App. 1, Penney v. Molina (February 2026) p. 3

(6)    The Tribal Affiliation and/or Indian heritage of the child

(7)    The extent of the participation of the parties in Tribal cultural activities.

(b)    The Court shall not consider conduct of a proposed custodial parent that does not affect the welfare of the child.2

14.05.110 Guardian Ad Litem

(a)    A Guardian Ad Litem (GAL) appointed by the Court shall have the following duties:

(1)    To represent and be an advocate for the best interest of the child by presenting relevant facts to the Court through a written report and direct testimony and to make recommendations that are in the best interests of the child.

(2)    To collect relevant information about the child's situation and the family's circumstances.

(3)    To monitor and ensure compliance with court orders and to bring to the Court's attention any change in circumstances that may require a modification of the Court's orders.

3A.04.120 Bench Trials

In an action tried on the facts before the judge, without a jury, the Court must make findings of fact and conclusions of law. The findings and conclusions may be made orally on the record after all evidence has been presented or may appear in a written opinion filed by the Court.

ANALYSIS

The trial Court used the correct code provision to evaluate this custody case. However, the trial Court's analysis has failed to include recommendations of the Guardian Ad Litem or evidence and factors concerning the appellant mother. These actions were clear errors of law.

Moving on to the findings themselves, there is a paucity of facts presented to accurately determine, upon appellate review, the intent and basis of the decisions made. During the retrial of this case, the trial Court apply the evidence for the code-based factors, both favorable and unfavorable to each party, and consider carefully the reports, testimony and recommendations of the Guardian Ad Litem.3

CONCLUSION

Due to the incomplete nature of the finding of facts and the errors in law made by the trial Court, it is not possible to clearly review the intentions and orders of the trial Court. Therefore, this case is remanded for a new trial. Any further review by this Court shall await a new Notice of Appeal.

*

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.


1

The Finding of Fact and Conclusions of law were entered as part of the Final Parenting Plan rather than as a separate document. For future clarity and ease of review, findings should be entered as a separate document.


2

The trial Court, as per the clear language of this code provision, may consider other factors, if they are set forth and proper factual findings are made.


3

On retrial, the trial Court should consider its conclusions and findings as a roadmap, so that upon review there is no question of how decisions were made.