In re Welfare of James, (1992)

• Court: Lummi Tribal Court of Appeals
• Writing for the Court: IRVIN, CHIEF JUSTICE.
• Decision Date: 25 November 1992
• Docket Number: 87-J-0725
• Citation: In re Welfare of James (Lummi Tribal Ct. of App. 1992)
• Parties: IN RE THE WELFARE OF VICTOR JAMES, AN INDIAN CHILD

IN RE THE WELFARE OF VICTOR JAMES, AN INDIAN CHILD

No. 87-J-0725

Lummi Tribal Court of Appeals

November 25, 1992

Attorney Samuel J. Stiltner of Stiltner, Sinclair, Clement and Foster for Robert and Joanne Jones; attorney Richard A Baum for Janet Jefferson; attorney Iris Shue for the Lummi Indian Nation; guardian ad litem Lorraine Brave for Victor James.

Before: Chief Justice Rosemary Irvin, Associate Justice Elizabeth Fry, and Associate Justice Charles R. Hostnik.

IRVIN CHIEF JUSTICE.

SUMMARY

Victor James was the child of unmarried teenage parents, neither of whom were able to care for him. He was born with many physical problems requiring special medical attention. Shortly after his birth on May 25, 1986, Victor was placed by Lummi Children's Services in foster care with Robert and Joanne Jones, a non-Indian couple living near the Lummi Reservation. Victor's mother, Lummi Indian Nation member Janet Jefferson, approved of the placement and visited Victor regularly at the Jones' home. When Victor was three, Mr and Ms. Jones moved to Renton. Despite the move, Lummi Children's Services, with Ms. Jefferson's approval chose to continue foster care placement in the Jones' home.

After the move to Renton, Ms. Jefferson's visits with Victor became infrequent and ceased altogether for a two-and-one-half-year period. During this time Lummi Children's Services also ceased making home visits to monitor the placement. As a result, Mr. and Ms. Jones' parenting relationship with Victor evolved into one which functioned as if it were permanent. However, at a July 25 1991, dependency hearing Lummi Children's Services presented a plan to reunite Victor with his mother. Mr. and Ms. Jones attempted to intervene as parties to the proceedings and filed a Petition for Guardianship or Adoption. Ruling that Mr. and Ms. Jones lacked standing to file their Petition, the Tribal Court approved the Lummi Children's Services plan. Mr. and Ms. Jones then appealed.

The main issue before the Tribal Court of Appeals was whether foster care parents should have standing at a dependency hearing involving their foster child. Additional issues were raised in a motion by the Lummi Nation seeking to recuse the appellate panel on grounds that two of its members were non- Indian. The panel denied this motion, ruling that while the Nation has the right to establish racial qualifications for its justices, it cannot disqualify justices on the basis of race once they have been approved and the hearing process has begun.

In regard to the main issue, the appellate panel ruled in favor of the Nation, affirming the trial court's decision to deny Mr. and Ms. Jones standing to intervene. However, the justices did not rule out the possibility of granting foster parents standing in the future. And they affirmed the right of any foster parent to testify as a witnesses in a dependency proceeding. As Justice Hostnik observed in his concurring opinion, "Foster parents are a valuable source of information which should be taken into account [by the court] in determining what is in the best interest of the child."

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

I. ISSUE ON APPEAL

At issue is whether foster care parents should have standing at a dependency hearing involving their foster child of five years who has been residing with them since leaving the hospital where he was born.

II. PROCEDURAL BACKGROUND

On June 25, 1991, appellants Robert E. and Joanne M. Jones, the foster parents of the minor child, Victor James, attempted to file a Petition for Intervention and Guardianship or Adoption, and Other Relief, with the Lummi Tribal Court. The Petition was filed during a dependency hearing concerning Victor's future placement. The trial judge denied standing to the appellants, entered an order transferring physical custody to the Lummi Indian birth mother, and set an increased visitation schedule to accomplish the transfer by August 1, 1991.

Mr. and Ms. Jones filed this appeal challenging the denial of standing by the lower court. The three justices named herein were approved by the Lummi Business Council to sit as the appellate panel for the appeal. The appellants were granted standing before the appellate court to raise the issue of whether they, as foster parents, have standing as parties in a dependency proceeding involving their foster child.

A hearing date and briefing schedule were set. Preliminary orders were entered without a hearing (1) waiving the posting of a bond on appeal, (2) appointing a guardian ad litem for Victor James, and (3) reinstating visitation as it had occurred prior to the trial court's June 25, 1991, order.

This court was notified the day before the scheduled August 29, 1991, appellate hearing that the Nation was going move to recuse the appellate panel. The Motion to Recuse and the prehearing motions were heard on August 29, 1991. Ruling on the Motion to Recuse was postponed until September 12, on which date the appellate panel ruled unanimously to deny the Motion. The reasons for that decision are stated herein. This court heard the appeal on October 7, 1991, and scheduled the remainder of the case for November 18, 1991.

Prior to the November 18th hearing, the Nation passed Resolution #91-116. The Resolution added the following provisions to the Lummi Tribal Juvenile Code:

The parties in a child dependency case shall be the child, the natural parents, and the Tribe. No other person shall intervene or be granted the status of a party in such proceeding. Where parental rights have been relinquished or terminated, as provided in Chapter 8.7, the Court, in its discretion, may allow intervention or participation by such persons who in the Court's judgment have an appropriate interest in the child's welfare.

The Resolution was passed by the Lummi Business Council on November 5, 1991 and was received by the members of the appellate panel on or about November 15, 1991, along with a letter from the Nation's counsel, Harry Johnson, stating he believed the Resolution made the appeal moot. In a separate opinion, the appellate panel ruled that the Resolution did not make the appeal moot, and could only be applied prospectively.

At the end of closing arguments on November 18, 1991, the Nation renewed its previous motion to dismiss the action. The motion was granted. However, the issue as to what status foster parents have in dependency proceedings was reserved by the appellate court.

The Nation objected to any further proceedings after their Motion to Dismiss had been granted. The court requested a panel of tribal elders to meet with the appellate court to discuss any tribal traditions which should be considered in defining the role of the foster parents upon remand to the trial court. The court clerk, a Lummi tribal member, was directed to invite elders who were well-respected in the Tribal community to discuss the matter. The panel of elders met with the appellate court, the parties and their attorneys on December 16, 1991. It should be noted that Lummi Children's Services was represented by the Nation's attorney, Harry Johnson, and that elders who worked for Lummi Children Services were not invited to be on the panel, due to the possibility of bias. Nevertheless, one of the elders employed by Lummi Children's Services and Valerie Day, the Lummi Children's Services caseworker for Victor James, came to the meeting and, without being recognized by the presiding justice, impassionedly spoke and misrepresented the case to the elders in an attempt to influence their responses, their attitudes toward the court, and the ultimate outcome of the case.

Subsequent to the elders' panel, the foster care parents filed a motion for the appointment of independent counsel for the minor child. Argument on this motion was heard by conference call on May 5, 1992. The court ordered the appellate guardian ad litem removed and an attorney appointed to represent the child.

III. FACTS

Victor James was born on May 25, 1986. He was the second born of twins and was born with many physical problems requiring special medical attention. Neither the sixteen-year-old mother, Janet Jefferson, nor the fifteen-year-old father, Simon James, were able to care for both their newborn sons. With the mother's consent, Lummi Children's Services placed Victor with the Joneses, a non-Indian foster home near the Lummi Reservation. Janet Jefferson visited Victor fairly regularly. Robert and Joanne Jones spent considerable time attending to Victor's special needs. When Victor was three, the Joneses moved to Renton. At that time Lummi Children's Services considered placing Victor in another home. The agency chose to continue placement with Robert and Joanne Jones and recommended this to Janet Jefferson, who agreed.

After the Joneses moved to Renton, Ms. Jefferson's visits with her son were greatly reduced and ceased altogether for a two-and-one-half-year period prior to March, 1991. Lummi Children's Services also failed to monitor the placement during this time. This directly caused the placement to evolve into one which functioned as if it were permanent.

The November 28, 1990, Report to the Court by Lummi Children's Services described the placement situation as follows:

The foster mother, Joann Jones [sic], explained that she had never expected this placement to last as long as it has and that it has just evolved to the state it currently is in. Because of the administrative problems at LCS [Lummi Children's Services], this foster family had been neglected by the agency and has performed extremely well on its own.

In the opinion of the caseworker this family has provided Victor with an excellent home. The foster mother has expressed the hope that they might...