4 NICS App. 138, CLINE v. MILLER (October 1996)
IN THE NOOKSACK TRIBAL COURT OF APPEALS
NOOKSACK INDIAN RESERVATION
DEMING, WASHINGTON
Tami N. Cline, Appellant
v.
Scott Miller, Respondent
Nos. NOO-Y-592-014, 015 (October 17, 1996)
SUMMARY
Appeal of trial court denial of petition for custody. Trial Court’s denial was based on previous trial court order which purported to change a guardianship proceeding into a custody proceeding. We find the earlier order was invalid because the change from guardianship to custody was neither explicit nor authorized. The trial court order is in error. We reverse and remand.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Douglas W. Hutchinson, Justice; and Rose E. Purser, Justice.
Appearances: Tami Cline, appellant; Kathleen Hathaway, attorney for appellant; Scott Miller, respondent; Robert Och, Attorney for respondent.
This matter came before the Nooksack Tribal Court of Appeals pursuant to Appellant Tami N. Cline’s Notice of Appeal filed on May 29, 1996. Ms. Cline appeals the Order of the Nooksack Tribal Court, dated May 16, 1996, denying her petition for custody of the parties’ two minor children, C.M. and K.M.
I. JURISDICTION
This Court has personal jurisdiction over Appellant Tami N. Cline because she is a member of the Nooksack Indian Tribe and resides on the Nooksack Indian Reservation. This Court has personal jurisdiction over Respondent Scott Miller and the parties’ two minor children because they reside on the Nooksack Indian Reservation. The act which is the subject of this appeal occurred within the exterior boundaries of the Nooksack Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this appeal pursuant to § 15.03.020 of the Nooksack Youth Code.
4 NICS App. 138, CLINE v. MILLER (October 1996) p. 139
II. STATEMENT OF FACTS
On May 8, 1992 Scott Miller petitioned the Nooksack Tribal Court for custody of his two minor children, C.M. and K.M. Pursuant to a hearing which the children’s mother, Tami Cline, did not attend, Judge E. Dulik issued a Guardianship Order. The June 18, 1992 Guardianship Order made C.M. and K.M. wards of the Nooksack Tribal Court and appointed Mr. Miller their general guardian “until otherwise ordered by [the] Court.” The court also granted visitation rights to Ms. Cline.
On October 12, 1993, Ms. Cline moved the court to dissolve the guardianship. On October 21, 1993 Judge M. Pearson held a review hearing pursuant to that motion and issued an Order on Motion to Dissolve Guardianship (hereinafter, October 1993 Order). The actual order of the court set a hearing on the matter for November 18, 1993. There is nothing in the record that indicates whether the hearing ever took place.
The children resided with Mr. Miller, with visitation by Ms. Cline on alternating weekends, until the summer of 1995. At that time, Mr. Miller and Ms. Cline agreed that the children would reside with Ms. Cline until the end of the 1995-1996 school year.
On April 17, 1996 Ms. Cline filed a Motion to Dissolve Guardianship. On April 19, 1996 Ms. Cline petitioned the court for custody of C.M. and K.M. The trial court heard the matter on May 16, 1996. In a May 16, 1996 Order (hereinafter May 1996 Order) the trial court, relying on the October 1993 Order, denied Ms. Cline’s Petition for Custody.
Ms. Cline timely appealed from the May 1996 Order. This Court accepted the appeal on May 31, 1996. Oral arguments were held on August 26, 1996.
III. ISSUE ON APPEAL
In her Notice of Appeal and subsequent supporting brief, Ms. Cline alleges a number of trial court errors, including several alleged violations of due process. For reasons we will discuss in the following section, we need not reach those assignments of error. The sole issue on appeal is whether there was prejudicial error which warrants reversal of the May 1996 Order.
IV. DISCUSSION
Ms. Cline cites several grounds for her appeal. Most of those are based on Nooksack Youth Code § 15.09 and allege that the trial court deprived her of due process during the May 16, 1996 hearing. This Court need not address those assignments of error because it finds that the trial court, in rendering its May 1996 Order, relied upon and upheld an invalid order.
4 NICS App. 138, CLINE v. MILLER (October 1996) p. 140
Judge Pearson’s October 1993 Order purports to change the status of the proceedings from a guardianship, as ordered in 1992 by Judge Dulik, to a custody:
The guardianship was entered by the Honorable Emma Dulik on June 18, 1992. Ordinarily, a guardianship is established when the custodial person is not a parent. This Court, however, will treat the Guardianship Order of June 18, 1992, as an Order for Custody and the Motion being filed by Tami Cline as a Motion for Modification of Custody.
October 1993 Order at 1, lines 17-21. These statements, however, are included in the text of the document as part of the discussion concerning the background of the case. The actual order of the court merely provides for a hearing on the matter to be held on November 18, 1993.1 There is nothing in the record that specifically and formally orders such a change; furthermore, there is no code provision which authorizes the court to do so.
Nevertheless, pursuant to its expressed intent to treat the proceedings as custody proceedings, the trial court instructed the parties:
The Court will expect the Petitioner to show that the best interests of the child require a change in custody, i.e. that “The child’s present environment is detrimental . . . and the harm likely to be caused by a change of environment is outweighed by the advantage of change to the child” . . . .
October 1993 Order at 1, lines 22-25 [emphasis added]. The trial court then proceeded to schedule a custody hearing.
In rendering its decision on May 16, 1996, the trial court relies upon the discussion in the October 1993 Order regarding the requirements for awarding “a change in custody”. The May 1996 Order denies Ms. Cline’s petition for custody based on its finding that she had failed to meet the standard for a change in custody as set forth in the October 1993 Order. The October 1993 Order is invalid insofar as it purports to change the proceedings into a custody matter; that change is neither explicitly ordered nor expressly authorized.
The trial court’s reliance on an invalid order in rendering its May 16, 1996 decision was prejudicial error requiring reversal. Therefore, based on the foregoing,
4 NICS App. 138, CLINE v. MILLER (October 1996) p. 141
ORDER
It is hereby ordered that the Order denying Ms. Cline’s Custody Petition, dated May 16, 1996, is reversed.
It is further ordered that this matter is remanded to the trial court for a full permanent-custody hearing on the merits within sixty (60) days from the date of this Order.
It is further ordered that, in anticipation of the permanent-custody hearing, the Nooksack Youth and Family Services shall conduct a complete home study and shall consult with the youth’s parents and conduct interviews with both minor children. Pursuant to the home study and prior to or at the time of the hearing, the Nooksack Youth and Family Services shall provide a report and evaluation to the trial court.
It is further ordered that the parties shall appear at the permanent- custody hearing on the date to be set by the trial court, and that the parties be fully prepared to participate in the proceedings.
It is further ordered that the minor children C.M. and K.M. shall remain wards of the Nooksack Tribal Court, and that temporary physical custody of C.M. and K.M. shall remain with their father, Scott Miller, subject to the provisions of the June 18, 1992 Guardianship Order, which remains in full effect until the trial court makes its determination regarding permanent custody.
The order issued by Judge Pearson on October 21, 1996 contains several directives: (1) it orders Ms. Cline to prepare, serve, and file an affidavit setting forth her allegations; (2) it provides for visitation; (3) it orders the parties not to use alcohol or drive without a valid license; (4) and it sets the matter for a hearing on November 18, 1993.