In re Welfare of H.T., (1989)

• Court: Lummi Tribal Court of Appeals
• Decision Date: 03 February 1989
• Docket Number: 88-JVDP-0775
• Citation: In re Welfare of H.T. (Lummi Tribal Ct. of App. 1989)
• Parties: IN RE THE WELFARE OF H.T. AND C.T., MINOR INDIAN CHILDREN

IN RE THE WELFARE OF H.T. AND C.T., MINOR INDIAN CHILDREN

No. 88-JVDP-0775

Lummi Tribal Court of Appeals Lummi Indian Reservation Bellingham, Washington

February 3, 1989

SUMMARY

Although state and Canadian provincial courts claimed jurisdiction over an Indian child in a custody dispute, the Court of Appeals affirmed the trial court's retention of jurisdiction because the matter before it concerned a "minor in need of care" while on the reservation rather than purely a custody dispute. Even if the matter was characterized as a custody dispute, not transferring jurisdiction to a state court was not error by the trial court, because the Indian Child Welfare Act has no mechanism providing for such transfer.

Before: Jack Fiander, Chief Justice; Rose E. Purser Associate Justice; and Charles R. Hostnik, Associate Justice.

OPINION

This Matter came before the panel on the 21st day of November 1988. For the reasons set forth herein, the appeal filed by Appellant herein is hereby denied and the trial court affirmed.

BACKGROUND

On September 2, 1988, Honorable Judge LaFountaine of the Lummi Tribal Court entered an order denying the motion for dismissal for lack of jurisdiction which had been filed by Appellant, briefed, and argued to the Court on August 1 1988.

FACTS

On May 9, 1988, the jurisdiction of the Provincial Court of British Columbia at Prince Rupert was invoked by Suzanne L. Tomlin seeking custody of H.T. and C.T., who are the minor children of Ms. Tomlin and Appellant. An interim order was entered ex parte in favor of her by that Court on May 11, 1988, granting temporary custody of the children to Suzanne L. Tomlin.

Subsequently on June 6, 1988, a petition for dissolution of marriage was filed by appellant, Patrick Tomlin, with Suzanne Tomlin named as the respondent, in the State of Oregon, Hood River County. Two days later, the Oregon Court issued ex parte temporary orders which, among other things, granted custody of the children involved in these proceedings to Mr. Tomlin. Process for the Oregon action was served upon Suzanne Tomlin on June 14, 1988. The children were at that time still in the physical custody of Ms. Tomlin.

On July 14th, 1988, a petition was filed by Margaret Adams, the maternal grandmother on the Lummi Reservation, alleging that the children were dependent children under the Lummi Juvenile Code. An emergency temporary order was entered that same date placing the children under the temporary jurisdiction of the Lummi Tribal Court and restraining Appellant from removing them from the supervision of the Lummi Tribe.

On July 28, 1988, Suzanne Tomlin sought and was granted an ex parte temporary order of protection from the Whatcom County Superior Court. A hearing upon the temporary order was scheduled for August 11th.

Patrick Tomlin, through his counsel Dennis Hindman, filed a motion for dismissal in the Lummi Tribal Court and seeking transfer of jurisdiction to the state court in Oregon. A hearing on the motion was held on August 1, 1988 before Honorable Judge Frank LaFountaine of the Lummi Tribal Court. On September 2nd, Findings of Fact, Conclusions of Law, and an Order determining jurisdiction was presented by Rebel Harjo and signed by the Court. Neither Appellant nor his counsel were present.

On September 30, at the request of Counsel Hindman, a hearing was held at which he presented various objections to portions of the September 2 Order. Each of counsel's objections appears to have been routinely denied by Judge LaFountaine.

On October 3, 1988, a Notice of Appeal was filed by Mr. Hindman on behalf of Patrick Tomlin with the Lummi Tribal Court of Appeals appealing "the Court's failure to grant motions for dismissal for lack of jurisdiction."

Because, under the Lummi Trial Code, an appeal, in order to be perfected, must be filed within ten days of entry of the judgment or order appealed from, the first question which must be addressed is whether the appeal is timely.

I. TIMELINESS OF APPEAL

Under General Rule 1.8.03 of the Lummi Tribal Court Rules, a written Notice of Appeal must be filed with the trial court within ten (10) days from the entry of judgment. The judgment from which this appeal is taken was entered on September 2, 1988. The Notice of Appeal filed by the Respondent is dated September 30, 1988 and was filed with the trial court on October 3, 1988.

The issue that thus arises is whether this appeal was filed timely. In order to address this issue, it is appropriate to examine the events surrounding the entry of the judgment on September 2, 1988.

By letter dated August 9, 1988, the Appellant's attorney requested that a hearing be scheduled for argument of various motions filed by Mr. Tomlin's attorney, including a Motion to Reconsider the Court's Decision on Jurisdiction. That letter also indicated that Mr. Hindman would be in Southeast Asia from August 16, 1988 to September 1, 1988. The clear implication from that letter was that Mr. Hindman would be available on and after September 2, 1988.

On August 30, 1988, two letters were written after a telephone conversation between the parties. One letter was written by Mr. Burkitt, the Law Clerk for Mr. Hindman. That letter was addressed to the trial judge and indicated that Mr. Hindman was not expected to return until September 6, 1988. Mr. Burkitt was objecting to setting a hearing in this matter on September 2, 1988 and therefore requested a continuance to September 6, 1988.

The second August 30, 1988 letter was from the tribal prosecutor to Mr. Burkitt. The prosecutor in that letter indicated that she would appear on September 2, 1988 and request that the judge sign the proposed Findings of Fact, Conclusions of Law and Judgment which she had prepared. She indicated in that letter "Of course, Mr. Hindman will retain the right to move for amendment or addendum to the Order."

On September 2, the prosecutor did appear and the proposed Findings of Fact, Conclusions of Law and a Judgment prepared by the prosecutor were entered by the trial judge. However, the trial judge added a handwritten paragraph to the last page of that Order indicating that the court was reserving to Mr. Tomlin and his attorney the right to move for amendment or alteration of that Order.

The next hearing in this case occurred on September 30, 1988. At that time, both parties' attorneys appeared. A hearing was conducted concerning Mr. Tomlin's objections to the Findings of Fact, Conclusions of law, and Order which was entered on September 2, 1988. The Court also considered Mr. Tomlin's Motion to Reconsider its decision on jurisdiction during that September 30, 1988 hearing.

As a result of the September 30, 1988 hearing, minor changes were made to the Findings of Fact, Conclusions of Law and Order, and the Motion to Reconsider was denied.

The Notice of Appeal which was filed on October 3, 1988 indicates that the appeal is based upon "The Court's failure to grant motions for dismissal for Lack of Jurisdiction." This would appear to relate to the original Motion to Dismiss for Lack of Jurisdiction which was filed on July 25, 1988, heard on August 1, 1988, and was the subject of the Findings of Fact, Conclusions of Law and Order discussed above. The particular motions relied upon by the Appellant in filing his Notice of Appeal are not specifically identified.

During the course of the September 30, 1988 hearing, Mr Tomlin's attorney indicated that he did not receive a conformed copy of the Order entered on September 2, and had no knowledge of the remarks added by the Judge to the end of the Order until the September 30 hearing. It appears undisputed that the September 30 hearing was the first time that the Appellant's attorney had an opportunity to argue his objections to entry of that Order, and to request various changes be made in the Findings of Fact and Conclusions of Law. ...