In re J.H.A., (2006)

• Decision Date: 14 July 2006
• Docket Number: POR-J-9/04-151
• Citation: In re J.H.A. (Port Gamble Sklallam Tribal Ct. of App. 2006)
• Parties: IN RE THE WELFARE OF: J.H.A., AN INDIAN YOUTH v. GEORGE SPARKS, APPELLEE.
• Court: Port Gamble Sklallam Tribal Court of Appeals

IN RE THE WELFARE OF: J.H.A., AN INDIAN YOUTH DAWN DEAM, APPELLANT, GEORGE SPARKS, APPELLEE.

No. POR-J-9/04-151

Port Gamble S'klallam Tribal Court of Appeals

July 14, 2006

SYLLABUS BY THE COURT

Trial court, presiding over a custody dispute between a tribal member and nonmember Indian, ruled it had jurisdiction over the non-member Indian because a letter submitted by the non-member seeking a continuance constituted consent to jurisdiction.Court of Appeals holds that the letter in question was submitted in a separate proceeding, that the trial court erred in not distinguishing the two proceedings and that even if the letter had been submitted in the current proceeding, it constituted neither a general appearance or a responsive document for purposes of establishing consent to personal jurisdiction under the tribal code.Trial court order reversed and case dismissed.

Dawn Dean, pro se; Randal Brown, for AppelleeGeorge Sparks.

Before: Edythe Chenois, Chief Justice; Suzanne Ojibway Townsend, Justice; Eric Nielsen, Justice.

OPINION

NIELSON, J.

I.Factual Background and Procedural History

J.H.A., an Indian youth, was born August 26, 2004 to Dawn Deam and George Sparks.Deam, J.H.A.'s mother, is a member of the Suquamish Tribe.Sparks, J.H.A.'s father, is a member of the Port Gamble S'Klallam^[1] Tribe.J.H.A., like his mother, is a member of the Suquamish Tribe.

Sparks lives on the Port Gamble S'Klallam Indian Reservation.Deam lives on the Port Madison Indian Reservation.J.H.A. lives with Deam and has lived with her during the course of these proceedings.

On August 27, 2004, one day after J.H.A.'s' birth, Sparks filed a Parenting Plan, Visitation Schedule and Child Support petition in the Port Gamble S'Klallam Tribal Court.The court scheduled a hearing on the petition for October 19, 2004 and sent notice of the hearing to Deam by regular mail and certified mail, return receipt requested.The notice sent to Deam by certified mail was returned unsigned.

On October 13, 2004 Deam sent a letter to the court.In her letter, Deam requested the court continue the hearing to November 16, 2004.She requested the continuance because she did not receive the notice until October 6, 2004, was still suffering from health issues as a result of J.H.A.'s birth and she wanted time to seek the assistance of legal counsel.Sparks did not object to the request.

On October 19, 2004, the trial court granted the continuance.It also ordered that, "Mr. Sparks can visit his son as this is his right."It did not, however, specify when, where, or how long such visits were to occur.

On October 20, 2004 attorney Scott Wheat entered a notice of appearance on behalf of Deam.The notice of appearance states in part that Deam was not "waiving any defenses, including but not limited to lack of jurisdiction."On October 26, 2004 Deam promptly filed a motion to vacate the October 19, 2004 visitation order on the ground the court did not have personal jurisdiction.

On November 16, 2004, before the court ruled on Deam's motion, the parties filed a Joint Motion to Dismiss.The parties requested the dismissal on the grounds that "[b]oth Mr. Sparks and Ms. Deam (the Parties) stipulate that jurisdiction was perfected in the Suquamish Tribal Court matter, and that the Suquamish Tribal Court is an appropriate forum to resolve issues of paternity, custody, and child support."That same day the motion was granted and the court dismissed the case without prejudice.

On May 5, 2005, Sparks filed a motion to Set Temporary Visitation Schedule and Set Temporary Child Support and Notice of Hearing.The motion was filed under the same cause number as the case dismissed by the court on November 16, 2004.

On June 21, 2005, Deam filed a Motion to Dismiss on the grounds the court lacked jurisdiction and under the doctrine of forum non conveniens.The court held a hearing on the motion and denied the motion from the bench.On September 20, 2005, the court memorialized its oral ruling in a written order.

In its order denying the motion, the court ruled it had personal jurisdiction over Deam under Chapter 21.01.04(c) of the Port Gamble S'Klallam Tribal Code (PGSTC).Orderat 7-8.PGSTC 21.01.04(c) provides, in part, that a nonresident consents to personal jurisdiction by "filing a responsive document."The court reasoned that Deam's October 13, 2004 letter requesting a continuance was a "responsive document."Id.The court also opined, but did not decide, that Deam's sporadic visits to the Port Gamble S'Klallam Reservation for dental care at the clinic located on the Reservation constituted consent to jurisdiction under PGSTC 1.02.03. Id.

On July 11, 2005, Deam timely filed a Notice of Appeal from the court's order denying her motion to dismiss.On March 7, 2006, this Court entered an order accepting the appeal under PGSTC 7.03.02(b) of the Port Gamble S'Klallam Tribal Code and scheduled a conference.^[2] The conference was held telephonically on March 27, 2006.Present at the conference were the parties and Sparks' counsel, Randall Brown.Deam's counsel, Scott Wheat, was not present and has taken no further part in this case despite never moving to withdraw.^[3]

On March 30, 2006, this Court entered a scheduling order.The parties submitted their briefs and oral argument was held on June 12, 2006 at the Port Gamble S'Klallam Tribal Court.^[4]

The issue in this case is whether the trial court erred in denying Deam's motion to dismiss for lack of personal jurisdiction.We hold that it did.

II.Standard of Review

The trial court's findings are reviewed under the clearly erroneous standard.PGSTC 7.03.04.This Court, however, is not required to give any deference to the trial court's conclusions of law.Id.The trial court's findings of fact are not clearly erroneous.

Based on its findings, the trial court concluded as a matter of law that Deam consented to personal jurisdiction under PGSTC 21.01.04(c) because her October 13, 2004 letter was a "responsive document."We disagree.

III.Decision

Deam is not a member of the Port Gamble S'Klallam Tribe and she does not reside on the Port Gamble S'Klallam Reservation.Under Chapter 21 of the Port Gamble S'Klallam Tribal Code, the court acquires personal jurisdiction over a nonmember who is not a resident of the Port Gamble S'Klallam Reservation only if the person: (1) is served with a summons on the Reservation; (2) resided on the Reservation with a child who is the subject of the proceeding; (3) engaged in sexual intercourse on the Reservation when the child may have been conceived, or; (4) consents to the jurisdiction of the court by entering a general appearance, filing a responsive document, or participating in the proceeding unless participation is for the purpose of contesting jurisdiction.PGSTC 21.01.04(b-e).^[5] The only provision of the code that arguably applies is whether Deam consented to jurisdiction under PGSTC 21.01.04(c) by filing a general appearance or responsive document.

At the request of the parties, who agreed the Suquamish Tribal Court was the more appropriate forum to litigate the case, on November 16, 2004, the trial court dismissed the original petition, albeit without prejudice.A dismissal without prejudice means a case is dismissed but the plaintiff is not barred from refiling the suit.Black's Law Dictionary, 7th Ed.(1999)at 482.Sparks, however, never refiled the petition.Instead, on May 5, 2005, he filed a motion to Set Temporary Visitation Schedule and Set Temporary Child Support and Notice of Hearing under the same cause number as the suit dismissed on November 16, 2004.

Assuming, arguendo, that the May 5, 2005 motion constituted a refiling of the petition, Deam did not appear in that suit until she filed her motion to dismiss for lack of jurisdiction.^[6] Her October 13, 2004 letter, submitted in the original suit, had no bearing on this second suit.In her first appearance in this suit she contested jurisdiction.Therefore, the trial court's reliance on the October 13, 2004 letter to find that Deam consented to the court's jurisdiction was erroneous and its order denying Deam's motion to dismiss is reversed.

Even if the initial suit had not been dismissed, Deam's October 13, 2004 letter does not constitute consent to jurisdiction under the Code.In her letter, Deam requested the court continue its scheduled hearing, in part, so she could retain counsel.Deam's letter did not respond to Sparks' petition or any of the allegations in the petition.It was not a complaint, an answer, a reply to a counterclaim, a petition, an answer to a cross claim, a third party complaint, or a third party answer.The letter cannot be read as recognizing that the case was properly pending, that the court had jurisdiction, or as a response to any of the allegations in the petition.

The Code does not define "responsive document" and it is unnecessary for the disposition of this case for this Court to attempt to define all those documents that might be considered responsive.^[7]We only hold that a pro se letter requesting a continuance of a hearing for the purpose of retaining counsel, in the absence of any response to the allegations contained in a petition or motion on the merits of the case, is not a "responsive document" under PGSTC 21.01.04(c).The trial court erred in concluding the October 13, 2004 letter was a "responsive document" under PGSTC 21.01.04(c) for the purpose of consent to personal jurisdiction.^[8]

Additionally the letter was not a general appearance for purpose of consent to jurisdiction and waiver of the right to challenge the court's personal jurisdiction.The Code does not define "general appearance."Again, it is unnecessary to the disposition of this case for this...