In re Welfare of Five Indian Minors, (2010)

• Decision Date: 10 February 2010
• Docket Number: PUY-CW-09-08-064,PUY-CW-09-08-065,PUY-CW-09-08-066,PUY-CW-09-08-067,PUY-CW-09-08-068
• Citation: In re Welfare of Five Indian Minors (Puyallup Tribal App. Ct. 2010)
• Parties: IN THE WELFARE OF FIVE INDIAN MINORS. v. S.T.S., APPELLEE.
• Court: Puyallup Tribal App Court

IN THE WELFARE OF FIVE INDIAN MINORS. PUYALLUP TRIBE OF INDIANS, APPELLANT, S.T.S., APPELLEE.

Nos. PUY-CW-09-08-064, PUY-CW-09-08-065, PUY-CW-09-08-066, PUY-CW-09-08-067, PUY-CW-09-08-068

Puyallup Tribal Children's Court of Appeals Puyallup Indian Reservation Tacoma, Washington

February 10, 2010

SYLLABUS BY THE COURT

SYLLABUS^*fn1

Children's Court issued order returning five Indian minors to in-home placement with parents; despite previous orders finding all five children to be in need of care pursuant to tribal code, granting temporary legal custody of all five children to the tribal children's services agency, and approving a change of placement by the agency.Court of Appeals holds (1) a memorandum order which terminates litigation on specific issues and determines the rights of the parties, even though not the final order in the case, constitutes a final order for purposes of appeal; (2) Children's Court committed legal error by treating a pre-authorized change-of-placement as an original removal proceeding; (3) use of inaccurate form by tribal police did not convert change-in-placement to removal; (4) Children's Court erroneously interpreted tribal code and Indian Civil Rights Act in concluding that parents' due process rights had been violated; and (5) Children's Court abused its discretion by ordering children to be returned to a home which the overwhelming evidence showed to be an unsafe placement.Children's Court order vacated.

Simone N. Green, Attorney for Appellant Puyallup Tribe; Chrishendra Tucker-Scruggs, Attorney for Appellee S.T.S.

Before: Randy A. Doucet, Chief Judge; Gregory M. Silverman Associate Judge; Suzanne Townsend, Associate Judge.

OPINION

DOUCET, C.J.

I.INTRODUCTION

This matter comes before the Puyallup Tribal Children's Court of Appeals pursuant to a Notice of Appeal filed by the Puyallup Tribe of Indians ("Tribe"), Appellant, on June 12, 2009.^[2]

The Tribe challenges the return of five children to an in-home placement after the Children's Court determined that tribal agencies violated child removal procedures and also violated the parents' rights to due process.^[3]

II.PRELIMINARY MATTER

This appeal consists of five cases.The facts and issues in each case are essentially the same.To avoid copying five (5)court files, this Court selected one case to represent all five cases.The Order Accepting Appeal gave the parties notice that this court was reviewing one representative case and gave them the opportunity to draw the court's attention to any unique documents or evidence from any of the other cases that might have a bearing on this appeal and that might be overlooked otherwise.

S.T.S., the children's mother and Appellee herein, filed a motion to strike exhibits D, E, F, G and P from the Tribe's opening appeal brief.The exhibits in question are:

1) Exhibit D from PUY-CW-09/08-065, a court order from the dispositional hearing issued on November 20, 2008.

2) Exhibit E from PUY-CW-09/08-066, a court order from the dispositional hearing issued on November 20, 2008.

3) Exhibit F from PUY-CW-09/08-068, a court order from the dispositional hearing issued on November 20, 2008.

4) Exhibit G from PUY-CW-09/08-067 is the Tribe's Petition for Initial Hearing Re: Child in Need of Care filed on September 2, 2008.

5) Exhibit P from PUY-CW-09/08-066 is a court order from the first review hearing that was issued on February 19, 2009.

The mother's basis for the motion comes from language in this court's Order Accepting Appeal:

If either party believes there are documents or evidence unique to one of the other cause numbers that would not be included in the record of PUY-CW-09-08-064 and would have a bearing on this appeal, that party may file a motion no later than Friday, July 10, 2009 specifying the documents or other evidence from the other cause number(s) that the party believes should be included in the record for review.(Emphasis added.)

The mother brought the motion because the Tribe did not seek to have the exhibits included for review by the Court of Appeals as required by the Order Accepting Appeal.For unknown reasons, the Tribe attached exhibits from other children's cases to the Tribe's opening brief.Nevertheless, the challenged documents were already in the record being reviewed.They were included in L.S.'s case file as exhibits to the Tribe's response brief to the mother's motion to return the children.CR 73.^[4] Even if those documents had not been previously filed with the Children's Court, Puyallup tribal law gives the Court of Appeals authority to review all of the orders and petitions in the five cases submitted for appeal.PTC 4.03.540.Therefore, the mother's motion to strike exhibits is denied.

III.FACTS

On September 2, 2008, the Tribe filed a petition seeking a determination whether L.S. and four of her minor siblings were children in-need-of-care as defined by the Puyallup Tribal Code.Appellant's Exhibit B.^[5] The petition alleged that the children:

1.Were in need of care and control and had no parent, guardian or custodian able to provide care.That their father was "arrested for [domestic violence] against mother while children were in the room witnessing the assault."That the father was allegedly abusing alcohol and illegal drugs in the home.That the mother was allegedly abusing illegal drugs.That the home was in "deplorable living condition with dirty diapers, food, garbage and mountains of clothing piled in every room."

2.Had not been provided with adequate shelter because of the deplorable living conditions.

3.Had suffered or were likely to suffer physically and psychologically due to physical abuse and verbal abuse between the parents that "is openly conducted in front of the children."One of the children (age 1 year) was alleged to have been in a backpack on the back of the father during a physical altercation between the parents.

Id. at pages 2-3.

Prior to filing the petition, Puyallup Tribal Police had taken the children into protective custody after a home welfare check by the Puyallup Tribe's Child Protective Services ("CPS") resulted in a CPS determination that the children were not safe in their home.Id. at 3.

On September 4, 2008, the Children's Court found probable cause to believe that:

1.L.S. and her siblings were children in need of proper and effective parental care or control and had no parent, guardian or custodian willing to exercise care or control; ^[6]

2.The children had not been provided adequate shelter necessary for their health and well being; and

3.The children had been or are likely to be physically and psychologically abused by parents, guardians or custodians.

Appellant's Exhibit C.

Out of home placement was ordered for all of the children pending an adjudicatory hearing.Id.The children were made wards of the court and Puyallup Tribal Children Services ("PTCS") was granted temporary legal custody of the children.Id. at 3.The Children's Court order authorized PTCS to place or modify placement of the children as it deemed appropriate, and the order further stated that "[n]o one shall interfere with placement or take the child[ren] without Children's Services permission."Id.An adjudicatory hearing was scheduled for November 20, 2008.Id.

The record of this case does not contain an Order of Adjudication regarding the children.Rather, the next order entered was an Order on Dispositional Hearing in a "Child-In-Of Care" Proceeding [sic]("Order of Disposition") for each child.Appellant's Exhibits D, E, F, and H.The children were "adjudged" to be "children-in-need-of-care as defined by 7.01.120(6),^[7] after . an agreed Adjudicatory Hearing."Id.^[8] The Orders of Disposition granted the Tribe temporary legal custody of the children "until these proceedings are terminated."Id.The Orders of Disposition also provided as follows:

.[PTCS] may place or modify placement as it [deems] appropriate, depending on circumstances as they may arise.No one shall interfere with placement or take the children without [PTCS] permission.Furthermore, [PTCS] has full discretion to determine the frequency, duration, and terms of visitation between the children, the parents, guardians, and custodians.

Id.The children were ordered placed in an "in-home placement" that could "not be altered absent a Court Order or emergency circumstances."Id.(Emphasis added.)

The disposition orders set out a case plan for the mother, for the children and for PTCS.The case plan for the mother included the following:

1.Completion of the "inpatient treatment" in which the mother was enrolled and compliance with all outpatient recommendations;

2.Individual counseling;

3.Couple's counseling with mother's "significant other";

4.Mother to remain clean and sober at all times;

5.Mother to maintain a clean, sober and sanitary house;

6.Mother to work with the Family Preservation Program within PTCS;

7.A required criminal background check for all persons residing in the home or caring for the children;

a) A juvenile who is in need of proper and effective parental care or control and has no parent or guardian or custodian able or willing to exercise such care or control;

b) A juvenile who has not been provided with adequate food, clothing, shelter, medical care, education or supervision, by his or her parent(s), guardian or custodian necessary for his or her health and well-being;

c) A juvenile who has been abandoned by his or her parent(s) guardian or custodian;

d) A juvenile who has been or is likely to be physically, emotionally, psychologically or sexually abused by his or her parent(s), guardian or custodian;

e) A juvenile who has been sexually abused by his or her parent(s), guardian or...