5 NICS App. 105, IN RE THE WELFARE OF C.H. (April 1999)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
In Re: The Welfare of C.H., an Indian Youth
No. TUL-Y-6/96-532 (April 28, 1999)
SUMMARY
Appellant appeals a trial court decision finding him in contempt of court for failure to obtain a psychosexual evaluation as required by a court-ordered Family Protection Plan dated December 1997. The scope of review for appeals arising under the Tulalip Youth Code is broad. The Court of Appeals has discretion to find lower court made a mistake in factual findings, legal conclusions, or procedure; and may reverse the trial court, order a new trial, or make a new ruling on any issue raised. The Court of Appeals is constrained only by the trial court record and the arguments of the parties
A court-ordered family protection plan constitutes a final resolution for the purpose of appeal and all parties have the right to appeal decisions stemming from such a plan. Appellant never appealed from the December 1997 court-ordered plan and is now precluded from challenging the validity of that order. Nevertheless, the Appellant was entitled to appellate review of the court order dated May 28, 1998, finding him in contempt of court.
The Appellate Court holds that the trial court did not abuse its discretion in finding Appellant in contempt of court. The trial court did abuse its discretion when it ordered the Appellant to obtain an evaluation or risk further punishment of contempt. Since the court-ordered evaluation was premised on continued contact, the Appellant would be subject to further contempt sanctions only if the Appellant actually contacts his minor son without first obtaining the evaluation. Remanded.
FULL TEXT
Before: Charles R. Hostnik, Chief Justice; Lisa Brodoff, Associate Justice; Yvonne Leveque Kobluk, Associate Justice.
THIS MATTER comes before us pursuant to a notice of appeal filed by Appellant, father of the Youth. Appellant appeals the trial court’s order finding him in contempt of court for failure to obtain an examination required by a previous trial court order.
5 NICS App. 105, IN RE THE WELFARE OF C.H. (April 1999) p. 106
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 1997, Judge Thomas Weissmuller ordered the Appellant to undergo a psychosexual exam before visitation with his minor child could be resumed. This decision ordering the exam reversed a previous judge’s order that did not require such an exam prior to the exercise of visitation. Appellant timely requested reconsideration of this order, which was denied on January 22, 1998. On February 4, 1998, Appellant filed a Motion to Stay the Order conditioning visitation on the completion of the psychosexual exam, which was also denied. Appellant never appealed the order for the exam or the denial of the stay. Nor did he have the required psychosexual exam. However, Appellant did continue to exercise visitation with his child.
At a review hearing in Tulalip Tribal Court on May 19, 1998, Judge Weissmuller found Appellant in contempt of the December 18, 1997, order. He imposed a sentence of ten days in county jail, with eight days suspended, a $500 fine and jail costs. Appellant then timely filed this appeal.
By order dated September 4, 1998, the Appellate Court limited its scope of review to include only the trial court’s Order on Review heard on May 19, 1998, dated May 28, 1998, and filed on June 1, 1998. This Court found that that order was the “only order that has been timely appealed and is before us on this appeal.” See Order Re: Scope of Appeal, at p.2. A briefing schedule was set, and the oral arguments were heard on November 13, 1998. Post hearing briefs were filed on November 30, 1998.
II. SCOPE OF APPEAL / STANDARD OF REVIEW
The scope of review for appeals from trial court decisions under the Tulalip Youth Code, Ordinance 81, is not specifically defined. Some chapters of the Tulalip Code do specifically set out a review standard related to the subject matter of the claim. For example, the scope of review for appeals of the Tulalip Employment Court is defined as follows:
The jurisdiction of the Court of Appeals in appeal from Employment Court final decisions shall be to reverse the Employment Court and direct a new trial where the decision of the Employment Court is found to be arbitrary, capricious, or unsupported by substantial evidence.
The Tulalip Tribes Human Resources Ordinances, Ordinance 84, Section X(B)(10).1
Here, where there is no specified standard under the Tulalip Youth Code, we look to the general provisions of the Tribal Court Civil Rules in Ordinance 49, Title 1. Three different sections of the Ordinance 49 refer to appellate proceedings. First, Section 1.11.1 grants the right of appeal
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to “any person who claims, in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of a case....” (emphasis added). Second, Section 1.11.10 requires that appealed cases be decided on the basis of the trial court record and any written or oral arguments presented by the parties. Finally, Section 1.11.14(c), which is most directly on point, states:
The appeals court may dismiss an appeal, reverse the trial court decision in whole or in part, order a new trial, or make any other ruling which disposes of the issues raised by the appeal.
We find that these three sections, when read together, grant broad review power to the appellate panel. We have the discretion to find that the trial court made a mistake in either its factual findings, legal conclusions, or the procedure it followed. We can reverse the trial court in whole or part, order a new trial, or make a new ruling on any of the issues raised by the parties. We are only constrained by the trial court record2and the arguments of the parties.
This broad review standard stands in stark contrast to the more constrained standard in the Employment Code, Ordinance 84. In employment appeals, this Court can only reverse factual findings when the trial judge’s decision is unsupported by substantial evidence, and a new trial must be ordered in that case. Legal conclusions can be reversed in the court’s discretion, without the need for a new trial.3By contrast, in Youth Code appeals, we need only decide if a mistake has been made, and we are not required to order a new trial.4
III. JURISDICTION TO HEAR APPEAL
Counsel for Respondent, on behalf of Beda ‘Chelh, the Tulalip children’s services agency, argues that this Court does not have jurisdiction to hear this appeal. This argument is based upon that provision of the Tulalip Law and Order Code which only permits this Court to hear appeals from final judgements. See Ordinance 49, Tulalip Law and Order Code, Section 1.11.1. Respondent argues that no final judgment occurs in a minor-in-need-of-care proceeding unless, and until, the case is terminated. It is the Respondent’s position that since the appeal in this case was based upon a Contempt Order, which arose as a result of failure to follow a previous Review Order, both orders are interlocutory in nature and cannot be appealed.
We find this position particularly disturbing. We find it hard to believe that the agency placed in charge of children’s welfare on this reservation feels that while a Youth in Need of Care case is active, that there is no right by any party to appeal any decision made by the trial court during
5 NICS App. 105, IN RE THE WELFARE OF C.H. (April 1999) p. 108
that case. Here, that argument results in depriving Appellant of the ability to have an appellate court review the propriety of the trial court’s decision placing him in jail. It would be the Respondent’s position that Appellant has no right to review of that decision.
Respondent’s argument would equally deny Beda ‘Chelh the opportunity to appeal a decision of the trial court which that agency felt was not in the child’s best interest. For example, if in this case the trial court had ordered that Appellant should have unlimited unsupervised visitation, the agency would have no right to appeal that decision.
This argument offends all notions of fairness and due process which is the cornerstone of any proceeding in this tribal court. A basic notion of any system of justice is to provide the opportunity for appellate review of trial court decisions. If a youth was found in need of care at birth, and if those Youth in Need of Care proceedings continued until the youth reached age eighteen (18), it is the Respondent’s position that there would be no right of any party in that proceeding to appeal any decision of the trial court made during the eighteen years that the case was pending. Preserving any right of appeal until the case is terminated, potentially eighteen years later, effectively eviscerates any notions of due process or basic fairness. We cannot agree with Respondent’s position.
First, we do not believe that it is the intent of the Tulalip Board of Directors to deny the right of appeal from a trial court decision until the case is terminated, as advanced by Respondents. We glean this intent directly from Ordinance 81 itself. Section 81.8.26 (c) states as follows: “The court- ordered Family Protection Plan constitutes a final purposes for appeal.” Tulalip Tribal Youth Code, Section 81.8.26 (c).
These proceedings are structured so that once an initial family plan is approved by the court, the court periodically reviews the status of the case and modifies the plan to meet the changing circumstances of the parties involved in the case. Tulalip Tribal Youth Code, Section 81.8.27. Only in this fashion can the best interests of the child be served. The Tulalip Tribal Court, the child placing agency, the parents, and other parties involved are constantly adapting as the child matures and his or her needs change. This is specifically designed to be a dynamic process.
Section 81.8.27 mandates this constant review process to occur. The Youth Code permits the trial court wide discretion to enter a variety of court orders for the protection and well-being of the child and family. Tulalip Tribal Youth Code, Section 81.8.26(b); Section 81.8.30. In this case, the order under attack is a modification of the conditions authorizing visitation. As such, it modifies the court’s previous family protection plan. It therefore became final for purposes of appeal and all parties had the right to have the decision appealed. Tulalip Tribal Youth Code, Section 81.8.30; Section 81.8.26(c). This ensures fairness and due process during the course of the proceedings.
Section 1.11.1 of Ordinance 49, the Tulalip Law and Order Code, is the general jurisdictional provision for the Tulalip Tribal Court of Appeals. We view Ordinance 81, the Tulalip Tribal Youth Code, as a more specific statement of jurisdiction for proceedings arising under the Youth Code. Adhering to the general rule of statutory construction, that the more specific controls over the more
5 NICS App. 105, IN RE THE WELFARE OF C.H. (April 1999) p. 109
general, mandates our interpretation that §81.8.26(c) operates to modify the more general standard of review set forth in Ordinance 49. To the extent that any conflict exists between the two statutes, our jurisdiction in this case is to be governed by Ordinance 81.
We believe this is a reasonable analysis under the Tulalip Tribal Code. This is also an analysis that preserves, rather than forfeits, basic notions of due process and fairness. Therefore, we hold that under §81.8.26, each trial court order that modifies the court’s previous orders concerning the protection and well-being of a child that is issued as a result of a review hearing is final for purposes of appeal. Such orders, appealed timely, give this Court jurisdiction to hear the arguments of the parties and to review the propriety of such trial court orders.
IV. VALIDITY OF DECEMBER TRIAL COURT ORDER
The Appellant has argued that before this Court can review whether the Contempt Order was validly issued, we must review the proceedings which resulted in the underlying court order. Appellant argues that there was a lack of due process which resulted in the underlying court order. He argues that there was a lack of due process in the December 1997 review proceedings and, therefore, the order issued as a result of that proceeding was invalid and cannot be the basis for contempt. Appellant argues that contempt for failure to follow a court order must be interpreted to mean that contempt is only appropriate for failure to follow a valid court order.
It is the December order in this case which required Appellant to submit to the examination. Rather than submit to the examination, he first moved for reconsideration, which was denied by order dated January 22, 1998. Appellant then filed a Motion to Stay Order on February 4, 1998. In that Motion he stated:
“Petitioner/Appellant intends to file an appeal with appellate court within twenty days of the court’s order, dated January 22, 1998.”
Motion to Stay the Order, filed on February 4, 1998. Despite this clear expression of intent, however, the record does not contain a notice of appeal from that trial court order.
Appellant, although proceeding pro se, was clearly familiar with appropriate courses of action to follow to have the trial court’s December order reviewed. Appellant appropriately asked the trial court to reconsider its decision, and then clearly indicated his intent to appeal. This is an appropriate and normal course of action to obtain review of that December order.
The record does not explain why Appellant did not appeal the trial court’s December 1997 order. As discussed above Appellant clearly had the right to appeal that order. However, not having appealed that order, he has waived the right to question the validity of that order. For purposes of this appeal, that order must be deemed valid, and the scope of this Court’s jurisdiction on appeal prevents us from inquiring into the circumstances surrounding generation of that order.
5 NICS App. 105, IN RE THE WELFARE OF C.H. (April 1999) p. 110
Appellant’s argument on this issue must fail for a second reason. The record on appeal before us is inadequate to inquire into the circumstances surrounding that December order and therefore, the validity of the order. We have no transcript of the December 1997 proceeding. We have no basis to determine what occurred at that proceeding. We therefore have no basis to determine whether Appellant’s argument of lack of due process is a valid argument.
As noted in Tulalip Code §4.44.1, our review on appeal is confined to the record before us. We are not permitted to go beyond the record to take new evidence on appeal. During oral argument when the panel was questioning Appellant’s representative for the basis of his argument, an objection was raised by the representative for Beda ‘Chelh to the extent that facts not in the record before us were being asserted during the course of oral argument. That objection was well taken. The record before us simply does not provide an adequate basis to determine the validity of Appellant’s argument that the trial court’s December order was invalid on the ground of lack of due process.
V. PROPRIETY OF CONTEMPT
The trial court Review Hearing Order of December 18, 1997, ordered the Appellant “to obtain a psychosexual evaluation, and it is in the youth’s best interest that this requirement remain in effect if continued contact between (C.H.) and his father is allowed by the court.” On January 7, 1998, the Appellant filed a Motion for Reconsideration of the trial court order; which was denied. On May 28, 1998, the Appellant admitted that he had continued contact with his son in violation of the court’s order. The court found the Appellant in contempt for continued contact with his son and for the failure to obtain and complete the evaluation.
The Appellant argues that (1) the court-ordered psychosexual evaluation violated the Appellant’s civil rights under the Indian Civil Rights Act; (2) he was denied the opportunity to argue the factual basis underlying the allegation which resulted in the court-ordered evaluation; (3) he was denied the opportunity to confront his accuser and to examine the factual basis of the evidence against him; (4) there was no offer of proof regarding the documents that were a part of the State of Washington’s investigation; and (5) the court failed to weigh the Appellant’s denial of the underlying charges.
This Court does not have jurisdiction to rule regarding the trial court’s December 18, 1997, order. Tulalip Ordinance 49, Rule 4.43.1 provides that an appeal shall be filed within twenty (20) days after the judgment is rendered or decision made.5If the judgment or decision is not appealed, the judgment or decision becomes final and this Court has no jurisdiction to review. Pursuant to this Court’s order of September 8, 1998; however, this Court does have jurisdiction to hear an appeal
5 NICS App. 105, IN RE THE WELFARE OF C.H. (April 1999) p. 111
from the May 28, 1998, trial court order. The May 28, 1998, order found the Appellant in contempt of court.
Appellant admitted unsupervised visitation with C.H. in violation of the previous court order. During the appellate hearing Appellant stated he was aware the December 18, 1997, court order required him to undergo a psychosexual evaluation if he wished to continue contact with his child. Despite the court’s order, the Appellant continued contact with his son but did not obtain the evaluation. The trial court found the Appellant in contempt and ordered ten days in jail, with eight days suspended, and a five hundred dollar fine. The court additionally ordered that the Appellant must obtain a complete psychosexual evaluation and release its findings to the court or the Appellant would be subject to further contempt sanctions.
It is within the sound discretion of the trial court to find contempt and order sanctions. The appellate court’s review of the trial court decision is limited to reviewing the record for a clear showing of abuse of discretion. Discretion is abused if it is exercised on untenable grounds or for untenable reasons. Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App. 32 (Suquamish 1995). Absent a clear abuse of discretion the appellate court will not substitute its judgment for that of the trial court.
The Appellant knowingly violated the December 18, 1997, court order requiring a psychosexual evaluation as a prerequisite for continued contact between the Appellant and C.H. Contempt is a remedy available to punish such conduct. The trial court determined that jail time was the proper remedy for contempt for the knowing violation of the trial court’s order. The Appellate Court finds that the trial court acted within its sound discretion to find the Appellant in contempt of court for knowingly contacting his son without obtaining an evaluation. The court’s order of two days jail time and the five hundred dollar fine shall not be overturned.
The court abused its discretion, however, when it ordered the Appellant to obtain an evaluation or risk further punishment for contempt. Such a ruling is not consistent with the court’s December 1997 order. The evaluation was premised on continued contact. If there is no continued contact there is no need for an evaluation.
The remedy for failing to obtain an evaluation is no further contact, supervised or unsupervised, between the Appellant and his son. This is consistent with the court’s December ruling. If the Appellant wishes to visit and contact his son, he must obtain the evaluation. If the Appellant contacts his son without obtaining the evaluation he will be subject to further contempt sanctions.
This matter is remanded to the trial court for further proceedings consistent with this Court’s opinion.
See Tulalip Gaming Agency v. Murray, 5 NICS A pp. 90 (Tulalip 1998), for an in depth discussion of the meaning of this standard in the context of employment appeals.
Even with that, the appellate court can hear additional evidence if a refusal to do so would result in a “clear injustice.” Ordinance 49, Section 1.11.10.
See discussion in Tulalip v. Murray, supra at pp. 91-92.
Should the tribe desire a more stringent or different review standard for Youth Code appeals, it should consider adopting a standard specific to these types of appeals, as in the case of HRO 84 Section X(B )(10).
We note that this 20 day appeal provision is inconsistent with Ordinance 49, Section 1.11 .2(a), which sets forth a 10 day appeal period. However, we need not resolve this conflict because any purported appeal of the order at issue occurred more than 20 days after the order was entered.