Mitchell v. Preston

• Decision Date: 16 April 2019
• Docket Number: S-18-0166
• Citation: 439 P.3d 718
• Parties: Steven Jacob MITCHELL, Appellant (Respondent), v. Ashley Dawn PRESTON, Appellee (Petitioner).
• Court: Wyoming Supreme Court

439 P.3d 718

Steven Jacob MITCHELL, Appellant (Respondent),

v.Ashley Dawn PRESTON, Appellee (Petitioner).

S-18-0166

Supreme Court of Wyoming.

April 16, 2019

Representing Appellant: Seth Shumaker, Attorney at Law, Sheridan, Wyoming.

Representing Appellee: No appearance.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN and GRAY, JJ.

KAUTZ, Justice.

[¶1] The district court in Sheridan County, Wyoming, granted the appellee, Ashley Dawn Preston (Mother), primary custody of the child she shares with the appellant, Steven Jacob Mitchell (Father). Father, a member of the Cheyenne River Sioux Tribe, kept the child on the reservation in South Dakota and refused to relinquish custody to Mother, who is not a member of the tribe. He unsuccessfully sought orders from the district court and the tribal court transferring jurisdiction over the custody matter to the tribal court. In October 2017, Father again moved the district court for an order relinquishing permanent child custody jurisdiction to the tribal court.¹ Father claimed the tribal court acquired jurisdiction over the custody matter by issuing emergency child custody and/or protection orders, and the district court should, therefore, relinquish jurisdiction to make permanent custody orders to the tribal court. The district court granted Mother's motion to strike Father's motion, and Father appealed.

[¶2] We affirm.

ISSUE

[¶3] Father presents the following issue on appeal:

Whether the trial court erred in striking/denying [Father's] Motion to Transfer Venue/Motion to Establish Tribal Jurisdiction where the Northern Cheyenne River Sioux Tribal Court had issued emergency custody and placement orders concerning [the child], the Tribal Court had jurisdiction and the District Court was compelled under the Full Faith and Credit provision of 25 U.S.C. [§] 1911(d) to recognize the Tribal Court's [o]rders or establish Tribal jurisdiction in the matter.

[¶4] Mother did not appear in this appeal.

FACTS

[¶5] This case has a long and arduous course of litigation. We outlined many of the proceedings in Mitchell v. State, 2018 WY 110, ¶¶ 3-16, 426 P.3d 830, 833-35 (Wyo. 2018), where we affirmed Father's conviction and sentence for felony interference with custody. The record in this case is quite sparse, so we will refer to our earlier decision to give an adequate rendition of the proceedings.

[¶6] The parties' child was born in Montana in 2010. The State of Montana established Father's paternity and ordered him to pay child support but did not enter a custody order. The parties moved to Wyoming separately, with Mother living in Sheridan and Father living in Newcastle. They informally agreed that the child would reside with Mother and Father would be entitled to liberal visitation. Mitchell, ¶¶ 3-4, 426 P.3d at 833.

[¶7] During a visit with Father in March 2012, the child became ill because a coin was lodged in her esophagus. The coin had to be surgically removed, and Mother agreed Father could keep the child in his care until she finished her medical treatment. However, Father refused to return the child to Mother after her treatment concluded. He alleged that Mother was abusing and/or neglecting the child, and reported his suspicions, apparently prompted by the coin incident, to the Department of Family Services (DFS). DFS determined, on April 13, 2012, that Father's allegation did not "fall within the Department's guidelines ... or definitions of abuse and/or neglect," and closed the case. Despite DFS's conclusion, Father refused to return the child to Mother or to allow any contact between Mother and the child. Id., ¶ 4, 426 P.3d at 833.

[¶8] On July 1, 2013, Mother filed a petition in the Sheridan County district court to establish custody and visitation. The parties agreed to a temporary custody and visitation order, giving Father temporary custody of the child subject to Mother's visitation. Because of the child's young age and the amount of time she had been separated from Mother, the visitation schedule was graduated, starting with visitation supervised through the Court Appointed Special Advocate Program (CASA). Father, however, refused to comply with the visitation order, and, over time, Mother filed two motions for orders to show cause. The district court found Father in contempt of court each time and ordered him to comply with the visitation order and to pay Mother's attorney fees and costs. Mitchell, ¶¶ 5-7, 426 P.3d at 833-34.

[¶9] In 2014, Father moved with the child onto the Cheyenne River Indian Reservation in South Dakota. On February 25, 2014, Father filed a petition for temporary full custody of the child with the Children's Court of the Cheyenne River Sioux Tribal Court. He incorrectly alleged in his petition that legal custody of the child had not been established in the district court. After a hearing on April 22, 2014, the tribal court dismissed Father's petition for lack of jurisdiction because the custody action was pending in the Sheridan County district court and Mother was not a tribal member. Id., ¶ 15 n.5, 426 P.3d at 835 n.5.

[¶10] The district court scheduled a trial on Mother's petition to establish custody and visitation for February 6, 2015. Father's attorney provided him with the order setting the trial date by e-mail and mail. Father did not appear for the trial, the district court found him in default, and the trial proceeded as scheduled. Id., ¶¶ 8-9, 426 P.3d at 834.

[¶11] On February 23, 2015, the district court entered an order awarding primary custody of the child to Mother. The district court issued a warrant for Father's arrest for failing to comply with its orders in the custody case. In addition, the State charged him with felony interference with custody, in violation of Wyo. Stat. Ann. § 6-2-204(a)(ii), (d) and (e) (LexisNexis 2017). Mitchell, ¶¶ 9-10, 426 P.3d at 834. Father was arrested in October 2016, but he still did not return the child to Mother. Instead, the child remained on the reservation with her paternal grandmother (Grandmother). Id., ¶ 12, 426 P.3d at 835.

[¶12] Father continued his efforts to have the Wyoming district court transfer jurisdiction over the custody matter to the tribal court. Id., ¶ 12, 426 P.3d at 834-35. Father also filed motions with the tribal court, and he was successful in having the tribal court occasionally enter emergency custody and/or protection orders. Id. , ¶ 15 n.5, 426 P.3d at 835 n.5. He was not successful, however, in obtaining any tribal court order which asserted jurisdiction over the permanent custody issue between Mother and Father.

[¶13] On October 26, 2017, Father filed the motion which is at issue in this case. It was a combined motion entitled "Motion for Change of Venue/Motion to Establish Tribal Jurisdiction." The district court granted Mother's motion to strike Father's combined motion on April 23, 2018. It ruled that Father had received "ample due process," including notice and the opportunity to be heard with respect to the initial custody determination. The district court also ruled that it had "exclusive, continuing original jurisdiction to make a custody determination in this matter." Father filed a timely notice of appeal.

STANDARD OF REVIEW

[¶14] This appeal raises issues of the district court's subject matter jurisdiction and the proper application of the relevant statutes. These are questions of law subject to de novo review. See, e.g. , Harmon v. Star Valley Med. Center, 2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo. 2014) (whether a court has subject matter jurisdiction is a question of law reviewed de novo. ); Jensen v. Milatzo-Jensen, 2013 WY 27, ¶ 18, 297 P.3d 768, 774 (Wyo. 2013) (the application of a statute is a question of law reviewed de novo).

DISCUSSION

[¶15] Father claims that the district court erred by striking his Motion to Establish Jurisdiction in the Tribal Court.² He argues the tribal court acquired jurisdiction to determine the child's permanent custody when it issued emergency orders, and those orders are entitled to full faith and credit under the Indian Child Welfare Act, 25 U.S.C. §§ 1901, et seq. (ICWA). The four orders that he claims establish tribal court jurisdiction are: 1) a March 10, 2016 order recognizing the State of Wyoming had primary jurisdiction over the child's custody, but stating the tribal court could exercise temporary emergency jurisdiction over the child pursuant to the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A(c)(2)(C) ; 2) a June 20, 2016 restraining order prohibiting Mother from contacting Father, going to his residence, or harassing him; 3) a November 3, 2016 order granting Father and Grandmother temporary custody under the PKPA so they could seek counseling for the child; and 4) a July 31, 2017 order dismissing Grandmother's motion for custody of the child and for a protection order to prevent Mother from contacting the child. Father also claims the district court should have given full faith and credit to a notice from the Tribal Chairman placing the child under the permanent protection of the tribe, as a ward of the tribe, in the care of Grandmother. The Tribal Chairman directed all tribal departments and agencies to protect the sanctity of Lakota families until the custody issue was resolved in tribal court.

[¶16] Before we address Father's arguments, we are compelled to note that Father presented an incomplete and inaccurate recitation of the proceedings from the tribal court. This is particularly troubling because Mother did not make an appearance in this appeal and, therefore, did not designate the parts of the record that would support an affirmance of the district court's decision. We are aware, from the record we reviewed in Mitchell v. State, supra, that the tribal court issued an order on May 29, 2017, dismissing the custody case with prejudice for lack of jurisdiction and directing Father not to file any additional petitions with the tribal court "unless there is a substantial change of circumstances." The May...