In re Welfare of D.D., (1994)

• Decision Date: 07 January 1994
• Docket Number: POR-C-5/88-64
• Citation: In re Welfare of D.D. (Port Gamble Sklallam Tribal Ct. of App. 1994)
• Parties: IN RE THE WELFARE OF D.D.
• Court: Port Gamble Sklallam Tribal Court of Appeals

IN RE THE WELFARE OF D.D.

Nos. POR-C-5/88-64

Port Gamble S'klallam Court of Appeals Port Gamble S'klallam Indian Reservation Kingston, Washington

January 7, 1994

SUMMARY

Appeal of Trial Court Order of termination of guardian rights on violation of Indian Civil Rights Act due process grounds.Appellate Court held that the ICRA applies to termination of guardianship proceedings and includes the right to: (1) receive notice of hearing; (2) an opportunity to be heard and (3) call and cross-examine witnesses.

Order terminating guardianship rights reversed and remanded to Trial Court for proceedings consistent with the ICRA.

John DeCoteau, spokesperson for appellant, Carol A. DeCoteauKathirine Horne, spokesperson for respondent, David Pulsifer.

Before: Chief Justice Elbridge Coochise, Associate Justice Douglas Hutchinson, and Associate Justice Mary T. Wynne.

COOCHISE, Chief Justice

NATURE OF THE ACTION

An August, 1988, Order of Indian Guardianship appointed Appellant, child's maternal grandmother, as guardian of minor child.On February 20, 1992, Respondent, minor child's father, petitioned trial court to determine guardianship and care of the child; trial judge subsequently ordered that the child remain with the maternal grandmother.

On May 23, 1993, Respondent moved for termination of guardianship.Trial Court subsequently granted Respondent's motion, ordering termination of guardianship in Appellant and granting guardianship in Respondent.Appellant appeals the Trial Court Order.

Carol A. DeCoteau appeals the Order on Termination of Guardianship based on the lack of the opportunity to be heard, bias, prejudice, and failure to follow court procedures.She contends she was denied due process.We agree, reverse and remand for trial.

BACKGROUND

In August, 1988, an Order of Indian Guardianship was filed appointing the maternal grandmother, Carol DeCoteau, as guardian of the minor child, D.D. Judge Rosemary Irvin granted time, place and manner visitation restrictions as the guardian deemed to be in the best interest of the child.

On February 20, 1992, David C. Pulsifer, the father, petitioned the court to determine the guardianship and care of the child.On March 17, 1992, Judge Dulik ordered that the child remain with the maternal grandmother with an alternating weekend visitation schedule.

On May 23, 1993, David Pulsifer moved the court for a termination of guardianship on the basis of his capability, willingness and ability to provide for his son and the child's desire to live with him.In September, 1993, the trial court ordered termination of guardianship in Carol DeCoteau and granted guardianship of the child to his father, David Pulsifer, effective within (2) days of the hearing, with unlimited visitations by the grandmother.Additionally, the court stated that if the child wishes to return to his maternal grandmother, the father must respect and grant the child's request by notifying the court.

Carol DeCoteau filed her notice of appeal.This Court accepted and subsequently heard this appeal on December 13, 1993.

OPPORTUNITY TO BE HEARD

Under the Indian Civil Rights Act, Indian tribes are prohibited from depriving any person of liberty or property without due process of law.25 USCA sec. 1302(8).While the meaning of due process under the Indian Civil Rights Act is similar to due process as defined under the United States Constitution it is different.An Indian Tribal Court's interpretation and application of due process represents the unique tribal sovereign, its distinctive tradition, culture and mores.

While federal, state or other Tribal law is not binding authority upon this Court, such authority can be used as guidance."'The fundamental requisite of due process of law is the opportunity to be heard.'Grannis v. Ordean,234 U.S. 385, 394(1914).The hearing must be 'at a meaningful time and in a meaningful manner.'Armstrong v. Manzo,380 U.S. 545, 552(1965)."Goldberg v. Kelly,397 U.S. 254, 267(1969).

Due process requires notice, the opportunity to be heard in a full and fair hearing, to call witnesses on your behalf, to cross-examine witnesses, and to be heard before a impartial decision-maker.DeCoteau argued that they were not afforded an opportunity to be heard before the trial court, as required by the Family Code, and any attempts to present witness testimony and evidence was curtailed by the trial court's interruptions.

The Family Code of the Port Gamble S'Klallam Tribe, section 15.03.09, states in part: The Court shall hear testimony to determine whether guardianship is in the best interest of the child and the tribal community.The Court shall consider all guardianship reports submitted for review.All parties shall be given the opportunity to contest the factual contents and conclusions of the guardianship reports.

DeCoteau argued that attempts to introduce evidence and present an argument was ignored and the Trial Court ruled without considering DeCoteau's evidence.

The trial court did not direct the parties to proceed with their argument.At one point during the hearing, the trial judge did say, ". . . I don't know what else you have to offer, if you have anything to offer Kathirine, or if you have anything more than what you have given me."(Transcriptp.4, line 20-22).The trial judge did not inquire whether Decoteau had anything to offer.In fact, when DeCoteau attempted to present the school...