--- Am. Tribal Law ----, 2017 WL 2443081 (Colville C.A.), 13 CCAR 41
Colville Tribal Court of Appeals.
Ricard TUPLING, Appellant,
v.
Cassandra KRUSE, Appellee.
Case No. AP14-027, 7 CTCR 17
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Dissent issued May 30, 2017
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Decided June 5, 2017
[The parties appeared in person and without representation. Trial Court Case No. CV-CU-2013-36210]
Before: Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Rebecca M. Baker
SUMMARY
Dupris, CJThe custody issues in this case have been addressed by three (3) state courts, Okanogan, Island County, and Snohomish County, and the Colville Tribal Courts through several different hearings. The first filings regarding these parties was on September 9, 2013, in Okanogan District Court by Kruse (Appellee), a non-Indian, who obtained an ex parte temporary restraining order and temporary custody order (TRO) of the parties’ minor child, W.T. (child). At the time of its filing all parties resided on the Colville Indian Reservation (Reservation).
One day after she obtained the Okanogan TRO, Appellee and the child moved to the west side of the State. On that same date, September 10, 2013, Tupling (Appellant) filed for custody of the minor in Tribal Court. There is nothing in the record that shows he notified the Tribal Court of the Okanogan TRO. Appellant did not affect service of his custody pleadings on Appellee until April 21, 2014, seven (7) months after he filed them.
On September 18, 2013, Appellee filed for custody in Snohomish Superior Court, and received a TRO from that Court which, inter alia, restrained Appellant from removing the child from its jurisdiction pending the final resolution of the matter.
On September 19, 2013, at a hearing attended by Appellant, and a phone appearance by Appellee, the Okanogan Court found, by a preponderance of the evidence, that no domestic violence occurred between the parties, and dismissed its TRO. The Okanogan order does not contain findings of fact supporting its ruling.
In spite of the fact that Appellee had not received service of Appellant’s tribal custody pleadings, the Tribal Court held at least two (2) hearings on the custody issue, granting temporary custody to Appellant and issuing a warrant to pick up the child. The record does not indicate the basis of the ex parte orders, nor the Tribal Court’s findings on why it proceeded without proof of adequate service on Appellee.
Appellant took his Tribal Court temporary orders first to Okanogan County, then to Island County, and on to Snohomish County courts for registration of the foreign orders. All the state courts granted full faith and credit of the tribal court orders, and, initially, Snohomish County Superior Court, in April, 2014, dismissed Appellee’s custody case, finding it was first filed in Tribal Court. After being asked to reconsider its ruling, the Snohomish Superior Court reversed its ruling in May of 2014, finding it did have concurrent jurisdiction. It reserved further rulings on which Court had the primary jurisdiction until it conferred with the Judge of the Colville Tribal Court.
On July 11, 2014, Appellant filed a request in the Okanogan Court for recognition of the Tribal Order under the Uniform Child Custody Enforcement Act (UCCJEA), RCW Chapter 26.27. Appellant also raised the issue of the Parental Kidnaping Prevention Act (PKPA), 28 USCA, § 1738A, before the Tribal Court. The Tribal Court never addressed the issue.
On November 17, 2014, the judges of the Snohomish and Colville Tribal Courts had a telephone conference to discuss which Court had jurisdiction under UCCJEA. They concluded that the Courts had concurrent jurisdiction; that the child had lived his whole life in Washington State, with the last year in Snohomish County; that Snohomish County was the more convenient forum; and that the Coville Tribal Court would decline jurisdiction in favor of Snohomish County Court jurisdiction, and dismiss the Tribal Court case. From this order Appellant timely filed his appeal.
ISSUES
1) Did the Trial Court err in failing to address the PKPA issue?
2) Did the Trial Court err in finding concurrent jurisdiction with Snohomish Court, and declining jurisdiction in favor of the Snohomish Court under the principles of the UCCJEA?
STANDARD OF REVIEW
The first issue is a question of law; the second a mixed question of fact and law. We review both under the de novo standard. We review mixed questions of fact and law when the administration of justice is better served by such a review by the Court of Appeals. CCT v. Naff, 5 CCAR 50 (1995).
DISCUSSION
1) DID THE TRIAL COURT ERR IN FAILING TO ADDRESS THE PKPA ISSUE?The PKPA is a federal statute which was enacted after the Uniform Child Custody Jurisdiction Act (UCCJA), the precursor of the UCCJEA. The PKPA was enacted in 1980 to address the problem of parents removing children from the jurisdiction of the courts with UCCJEA jurisdiction. The PKPA generally prohibits a parent from removing a child from the court’s jurisdiction pending the final resolution of the case.
The PKPA does not explicitly define Indian tribes as “states” for the purpose of interstate full faith and credit. The Washington State UCCJEA, RCW Chapter 26.27, does include tribes as “states” for the purpose of its enforcement. The UCCJEA has been adopted by all fifty (50) states and the Territories. The Confederated Tribes of the Coville Reservation (CCT) has not adopted either a parental kidnaping statute or a UCCJEA statute.
The Colville Tribal Courts do not create legislation. That is the responsibility of the Colville Business Council (CBC). We (I would find) hold the PKPA does not apply in this case.
CTC § 5-1-33 provides that a “spouse” cannot remove a child from our jurisdiction without a court order. Appellant argues we should apply this statute. The parties were not married, however. We have ruled that the child of an unwed mother takes the domicile of the mother. In Re S.l. 11 CCAR 62 (2014), citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48(1989). Appellee took the child to western Washington before Appellant filed his case in Tribal Court, and after obtaining a temporary custody order in Okanogan County District Court, at a time when she had domiciliary rights to the child. We (I would find) hold that CTC § 5-1-33 does not apply, and that Appellee was within her legal rights to take the child with her when she moved.
Although the Okanogan Court found, on September 19, 2013, it was not proven by a preponderance of the evidence that domestic violence occurred between the parties, we have no indication of what facts were considered. By this time, Appellee had removed herself from what she considered an abusive relationship, and initiated protection in her new residence.
When Appellee filed in the Snohomish Court, she stated that Washington was her “home state,” per a UCCJEA requirement. This was true. While she lived on the CCT Reservation, she was also a resident of Washington State. Not being legally-trained, she may not have been aware that Washington considered the Colville Reservation as a “home state” for purposes of the UCCJEA.
We (I find) hold the PKPA does not apply in our Courts, and, because the parties were not married, CTC § 5-1-33 does not apply either. Appellee was within her legal rights to take the child to another jurisdiction. She was under no legal obligation to stay on the Reservation, and the child’s domicile follows her.
2) Did the Trial Court err in finding concurrent jurisdiction with Snohomish Court, and declining jurisdiction in favor of the Snohomish Court under the principles of the UCCJEA?Washington’s UCCJEA, RCW, Chapter 26.27, recognizes tribes as “states” for the purpose of determining jurisdiction over mutual custody cases. The Tribes do not have a similar law. The federal government passed a model UCCJEA, and each separate state and the Territories, adopted its version of the federal model. The UCCJEA directs the states to consider a tribe as a “state” for the purposes of determining a home state. The federal model does not direct tribes to adopt a version of it.
In Carson v. Barham, 7 CCAR 17 (2013), we upheld the Trial Court’s adoption of a version of a UCCJEA-type procedure which allowed the tribal judge and state judge to confer and consult with each other to decide which court was the more convenient forum for a custody case. It was recognized as an acceptable procedure for comity’s sake. Although there were some irregularities in the conference call on November 14, 2014 between the Colville Tribal Court Judge and the Snohomish Court Judge, we (I would) hold that none of them rise to sufficient error to overturn the decision herein.
First, we cannot address whether the Snohomish Court erred in its procedures; we do not have appellate review over state courts. The only review we can make is of the Tribal Court’s actions. The Tribal Judge should have made a recording of the call. Without a recording, we are left to review de novo the facts the judge had before him at the time of the call.
We know that Appellant and Appellee are the unwed parents of the child, W.T. Appellee obtained the first order in the custody dispute: the Okanogan TRO and Temporary Custody Order, issued on September 9, 2013. After obtaining her order, she took the child to western Washington to live. She was under no legal obligation to stay on the Reservation. Appellant filed for custody in Tribal Court on September 10, 2013, but did not affect service of his petition and summons until April, 2014, seven (7) months after he filed.
Appellee filed for custody in a state court on September 18, 2013, a day before her hearing on the Okanogan TRO/Temporary Custody Order. On September 18, 2013, Appellee obtained temporary orders from the Snohomish Court which restrained Appellant from removing the child from its jurisdiction pending the final decision in the case.
In the following months Appellant obtained temporary orders from the Tribal Court, although we have no record of why temporary orders were granted ex parte when there was no proof of service on Appellee filed in Tribal Court.
During this period the child lived continuously with Appellee in western Washington. The record shows that Appellant did appear in the Snohomish Court during this time, too, with an attorney, advocating his right to custody of the child.
Those were the facts the Tribal Court judge had before him as he conferred with the Snohomish Court judge. They found that both courts had jurisdiction; that Snohomish was the more convenient forum, and that the Tribal Court would decline jurisdiction in favor of the state court, and the Tribal Court judge dismissed the tribal case, allowing the parties to proceed in the state court.
Although the judge erred in not preserving an oral record, and in finding that the UCCJEA applied in Tribal Court, we (I find) hold these errors to be harmless. There is nothing in the record to show that the parties could not adequately address the custody issues in the Snohomish Court.
Our Code, CCT § 1-1-1441, gives our Courts the ability to fashion a suitable procedure in the absence of a specific statute, when the interest of justice is served. We have concurrent domestic relations jurisdiction with the State of Washington. See, Public Law 3-280 (PL280). We need to develop procedures to address cases that are before both the Tribal Court and a state court at the same time. We must ensure that forum shopping is not allowed between the two jurisdictions, while at the same time, not adopt laws that have not been enacted by our CBC.
This case has tied up several courts in search of an answer to where best it should be handled. We do not substitute our judgment for the Trial Court’s decision if we disagree with it. We review the record to see if there is sufficient evidence to support the Trial Court’s decision, and if it does, we affirm. We so hold/I so find.
CONCLUSION
Based on the foregoing, the Order From UCCJEA Conference entered November 17, 2014 is affirmed. This matter is remanded to the Trial Court for action consistent with this Order.Bass. J
The Appellant, Richard Tupling, appealed the Order from UCCJEA Conference. For the reasons set forth below, I would hold that errors were committed by both the Colville Tribal Court and the Snohomish County Superior Court of the State of Washington and would reverse the Order from UCCJEA Conference, and remand for further proceedings consistent with this dissent.
FACTS AND COURSE OF PROCEEDINGS
Richard Tupling (Tupling), and Cassandra Kruse (Kruse) are the unmarried parents of W., date of birth April 6, 2012. They resided together with the child within the bounds of the Colville Confederated Tribes reservation from the date of birth of the child until September 9, 2013.Tupling is a member of the Colville Confederated Tribes. Kruse is non-native. W. is a member of the West Bank Tribe, which is a First Nation in Canada. Although W. is a descendant of a Colville Tribal member by virtue of is father’s membership in the Colville Tribe, he is not an enrolled Colville Tribal member.
On September 9, 2013, Kruse obtained an ex parte protection order from the Okanogan County Superior Court (Okanogan) awarding her temporary custody of the child. Kruse listed her address as 2967 Columbia River Road, Okanogan, Okanogan County, Washington, which is within the boundaries of the Colville Indian reservation, and is the address where W., Kruse and Tupling resided. Kruse fled on September 10, 2013 with the child to an location unknown to Tupling.
On September 10, 2013, Tupling filed a Petition for Custody and/or Support in the Colville Tribal Court (Colville).
On September 18, 2013, Kruse filed a Summons and Petition for Residential Schedule/Parenting Plan and Child Support in Snohomish County Superior Court (Snohomish). In the summons instead of listing her actual address she listed the address where she could be served at as the Snohomish County Superior Court Clerk’s office.
On September 18, 2013, Snohomish issued a Temporary Restraining Order restraining Kruse and Tupling from changing the residence of the child until further court order. This order did not specify where the residence of the child was at that time, except it was apparent he was with his mother, Kruse.
On September 19, 2013, with Kruse appearing telephonically and Tupling in person, there was a show cause on the ex parte protection order in Okanogan. The court found by a preponderance of evidence that domestic violence had not occurred and dismissed the case. Kruse provided an address on Camano Island, Washington, her father’s address.
On September 19, 2013, Colville issued a Temporary Order granting Tupling custody of W., and scheduled a Show Cause Hearing for September 30, 2013.
On October 21, 2013, Colville issued a Temporary Residential Schedule establishing primary residence of W. to be with Tupling.
On October 21, 2013, a letter from Colville to Kruse that had been sent to 33 Miller Rd, Omak Washington, which was Kruse’s mother’s address, was returned to Colville marked “return to sender, not deliverable as addressed, unable to forward”.
On October 24, 2013, Colville issued a Warrant for Protective Custody No Bail warrant for W.
On December 2, 2013, the Island County Sheriff was contacted by the Colville Tribal Police Department seeking assistance in locating Kruse. The Stanwood Police Department had given the Colville Police Department the address that showed as her address on her drivers license, which was 1780 Mercyside Lane, Camano Island, Washington. The Colville Police Department gave that address to the Island County Sheriff’s Department, and an officer went to that address and an occupant told him that Kruse did not live there but had moved into her new home on Maple Grove Road. The father of Kruse lived at 1780 Mercyside Lane, Camano Island. The officer talked to Kruse at the Maple Grove Road address, and after finding that the child and the home seemed fine, took no other action.
On December 17, 2013, Okanogan issued an Order for Full Faith and Credit on Colville Tribal Temporary Custody Order, Temporary Parenting Plan and Protective Custody Warrant granting full faith and credit to the Colville Temporary Custody Order, Temporary Parenting Plan and Protective Custody Warrant.
On December 30, 2013, Tupling filed a Petition for Full Faith and Credit on Colville Temporary Custody Order, Temporary Parenting Plan and Protective Custody Warrant in Island County Superior Court, as Camano Island was in Island County.
On April 16, 2014, a Snohomish County Superior Court Commissioner issued an Order Dismissing the Snohomish case involving custody with prejudice, stating the reason that the action was filed first in Colville.
Kruse filed a Motion and Declaration for Revision of Court Commissioner’s ruling dated April 16, 2014.
Although there is not a copy signed by a Snohomish judge, there is an unsigned order which apparently was signed by Judge Lucas of Snohomish sometime in May, 2014, that reversed the Snohomish Court Commissioners order of April 16, 2014 and found that there was concurrent jurisdiction and reserving the issue of jurisdiction until a conference between Snohomish and Colville be held to establish jurisdiction under the UCCJEA.
On April 21, 2014, Kruse was served personally with the Petition for Custody, Temporary Residential Schedule and Warrant for Protective custody issued by Colville at 149 North 3rd Street, in Okanogan, Washington, which is the address for the Okanogan County Superior Court.
A hearing was held in Snohomish on the 8th day of May, 2014, ordering that a UCCJEA conference should take place between Snohomish and Colville.
On July 11, 2014, Tupling filed a request for child custody determination registration under UCCJEA with Okanogan.
On September 5, 2014, a hearing was held in Colville with the Colville Court ordering that a UCCJEA conference would take place.
On September 23, 2014, Colville issued an Order from Motion Hearing ruling that the court would await a conference call with Snohomish before deciding jurisdiction.
On October 15, 2014, Kruse filed a brief with Colville alleging that 28 USC 1738A, commonly known as the Parental Kidnapping Prevention Act (PKPA), was not applicable to the Colville Tribe. The Colville Tribal Trial Court did not rule on that issue.
On October 24, 2014, a UCCJEA conference was held. The Snohomish judge and Kruse appeared in person in the Snohomish Court. Kruse’s attorney and the Colville judge appeared by telephone. No recording of the conference was made by Colville.
Pursuant to the telephone conference of October 24, 2014, an “Order from UCCJEA Conference” (OFUC) was prepared for the signature of the judges from Snohomish and Colville. The Judge from Colville signed it on November 17, 2014 and filed it in Colville November 17, 2014. The Judge from Snohomish signed it on December 9, 2014 and filed it in Snohomish on December 9, 2014. The Findings in the OFUC were that both courts agreed that both courts had subject matter jurisdiction, that the minor child had resided in Washington State his entire life, and the minor had resided in or around Snohomish County for the previous year. Based on the child’s residence in Snohomish County, the Courts determined that Snohomish County was the most convenient venue for this matter to be heard. The Conclusions of Law were that the Colville Tribal Court declined to exercise jurisdiction in favor of Washington State, County of Snohomish and Snohomish accepted jurisdiction. The OFUC ordered that the Colville case be dismissed, that the temporary parenting plan and protective custody warrant issued in the Colville case also be dismissed, and that the matter would proceed in Snohomish.
There is nothing in the record before this Court as to any action taken in the Snohomish Court subsequent to the Order from UCCJEA Conference dated November 17, 2014.
Tupling timely appealed the Order from the UCCJEA Conference under Colville Tribal Code (CTC), sections 1-2-77 and 1-2-108.
ISSUES AND STANDARD OF REVIEW
The first issue in this case is did the Trial Court err in ruling in the OFUC that the conference was under the UCCJEA. Since that is an issue of law, the standard of review is de novo. CCT v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).
The second issue is whether the Colville and the Snohomish Courts erred in considering concurrent jurisdiction in a UCCJEA conference. Since that is an issue of law, the standard of review is de novo. CCT v Naff, supra.
The third issue is did the Colville and the Snohomish Courts err in a UCCJEA conference when they considered the child’s residence in Snohomish County as a basis to invoke the most convenient forum in deciding jurisdiction. Since that is an issue of law, the standard of review is de novo. CCT v Naff, supra.
The fourth issue is did Colville and Snohomish Courts err by considering this is a UCCJEA case when the jurisdictional standards of the Colville Tribe were different than those of Washington state in the UCCJEA. Since that is an issue of law, the standard of review is de novo. CCT v Naff, supra.
The fifth issue is did the Colville Court have the authority to decline jurisdiction in favor of Snohomish. Since that is an issue of law, the standard of review is de novo. CCT v Naff, supra.
The sixth issue is whether the Colville or Snohomish Courts should have considered whether the PKPA applied to this case. Since that is an issue of law, the standard of review is de novo. CCT v Naff, supra.
The seventh issue is whether Tupling timely served Kruse. Since that is a mixed question of fact and law the standard of review is de novo. CCT v Naff, supra.
The eighth issue is whether the Colville Court erred in not recording the hearing which led to the OFUC. Since that is a mixed question of fact and law, the standard of review is de novo. CCT v Naff, supra.
The ninth issue is whether all the factors relevant to the application of comity were considered in this case. Since this is a mixed question of fact and law, the standard of review is de novo. CCT v. Naff, supra.
The tenth issue is if the conference in this case is to be considered under comity rather than the UCCJEA, should the first to file rule have been considered. Since that is a question of law, the standard of review is de novo. CCT v Naff, supra.
DISCUSSION
The issue of subject matter and personal jurisdiction in child custody cases between state and tribal courts is one of the most complex, confusing and murky legal issues parties, lawyers and courts face. There is a myriad of laws that intersect in such cases. The relationship between just two of the laws, the UCCJEA and the PKPA, and not involving tribes have been described as “technical enough to delight a medieval property lawyer.” Mix in the other laws which will be considered in the following discussion and you have a dizzying array of laws to consider, and it is no wonder that parties, lawyers and courts can fail to find their way through the maze. The best way to start this discussion is to address the history of those laws.
Chronologically, the first law that impacts child custody jurisdiction between states and tribes is Public Law 83-280 (PL 280), enacted in 1953. It allowed states to assume jurisdiction over child custody on Indian reservations such as the Colville Reservation, which the State of Washington did assume in RCW 37.12.010. Notably the State of Washington did not assume exclusive jurisdiction over child custody, leaving the Colville Tribes to retain concurrent jurisdiction over such cases, which it did pursuant to CTC 5-1-120 et seq. The State of Washington and the Colville Tribes thus have concurrent jurisdiction over child custody matters. The impact of this law is discussed infra.An excellent history of the Uniform Child Custody Jurisdiction Act (UCCJA), the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), and the Parental Kidnapping Prevention Act (PKPA) is contained in a monograph by Patricia M. Hoff prepared for the U. S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention in the December 2001 issue of the Juvenile Justice Bulletin, with appropriate citations. That monograph is used to detail the history set forth below.
Before 1968, state courts could exercise jurisdiction over a child custody case based on a child’s presence in the state. Courts freely modified sister states orders because the U. S. Supreme Court rulings had never settled the question of whether the Full Faith and Credit clause of the U. S. Constitution applied to custody decrees. This legal climate fostered child abduction and forum shopping, and because parents with physical possession of a child could choose the forum that would decide custody, parents had a legal incentive to abduct children. The comity doctrine would have been the only means of resolving disputes between states over which state had jurisdiction. Given the interstate nature of the problem, an interstate solution was needed. The Uniform Conference of Commissioners on Uniform State Laws (NCCUSL) is an national organization that proposes uniform laws for the states to consider in areas of law where there should be uniformity between states. It is up to the states to determine whether to adopt such uniform laws. In 1968 the NCCUSL responded with the Uniform Child Custody Jurisdiction Act (UCCJA), which governed the existence and exercise of jurisdiction in initial child custody determinations and cases involving modification of existing orders. The law required states to enforce and not modify sister states orders. The law was adopted in one form or another by all 50 states.
Although the UCCJA was a major improvement over pre-1968 law governing jurisdiction in child-custody cases, some problems remained. The law did not eliminate the possibility of two or more states having concurrent jurisdiction, and the Act’s prohibition against simultaneous proceedings was not routinely effective in preventing courts in different states from exercising jurisdiction and issuing contradictory rulings. Some judges were using the emergency jurisdiction to provide permanent relief rather than temporary relief. Jurisdictional conflicts also continued in modification cases. Also the Act did not provide enforcement procedures to carry out the requirements. Some states had variations in language which undermined the uniform interpretation and application of the law across the country and created loopholes that led to the issuance of conflicting custody orders.
In order to close existing gaps and bring greater uniformity to interstate child-custody practice, Congress in 1980 enacted the PKPA. It required (emphasis supplied) state courts to enforce and not modify custody determinations made by sister states consistently with the PKPA unless the original state no longer had or had declined to exercise its jurisdiction; defer to the “exclusive, continuing jurisdiction of the decree state” as long as that issuing state exercised jurisdiction consistently with the PKPA when it made its determination, had jurisdiction under its own law, and remained the residence of the child or contestant; and must refrain from exercising jurisdiction while another state was exercising jurisdiction over a matter consistently with the PKPA.
The PKPA’s jurisdictional criteria resemble those of the UCCJA, but there are significant differences. The PKPA prioritizes home state jurisdiction in initial custody cases. Whereas two States may have jurisdiction under the UCCJA, one “home state” and the other significant connection jurisdiction, the PKPA gives priority to “home state” jurisdiction. The home state is defined as the the state where the child lived with a parent for at least six months immediately before the custody action was filed.
The PKPA did not solve all of the problems it targeted because of some confusion about its relationship to the UCCJA, because of the inconsistencies between the two laws, and partly because lawyers and judges ignored the PKPA or were unaware of its impact on UCCJA practice.
Some laws enacted after the UCCJA added a Federal dimension to interstate child custody practices that were unforeseen by the drafters of the UCCJA in 1968. In addition to the PKPA, these include the Full Faith and Credit provisions of the Violence Against Women Act (VAWA) enacted in 1994. VAWA recognized that domestic violence victims often leave the state where they were abused and need continuing protection in their new locations, and thus provided for interstate enforcement of protection orders. Custody provisions incorporated into protection orders, however are not governed by the VAWA. Significantly they are “custody determinations” subject to the PKPA and state law governing jurisdiction in child custody cases.
Enter the UCCJEA. By January, 2016, it had been adopted by 49 states, excepting Massachusetts. It was adopted in the State of Washington in 2001 in RCW Title 26 Chapter 26.27. The intent of the UCCJEA was to avoid jurisdictional competition and conflict with other states in matters of child custody which in the past have resulted in the shifting of children from state to state with harmful effects on their well-being, and to discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
The UCCJEA is a complete replacement of the UCCJA. Articles 1 and 2 contain jurisdictional rules that bring the UCCJA into conformity with the PKPA. The UCCJEA grants priority to “home state” jurisdiction; authorizes courts to exercise emergency jurisdiction in cases involving family abuse; and limiting the relief available in emergency cases to temporary custody orders, and directs courts to decline jurisdiction created by unjustifiable conduct.
Under the UCCJEA, like under the PKPA, a court has “home state” jurisdiction if the child has lived in the state for at least 6 months preceding commencement of the action. Commencement of the action is defined in the UCCJEA adopted by the Washington state legislature in RCW 26.27.021 (5) as “the filing of the first pleading in a proceeding.”
RCW 26.27.251, Simultaneous Proceedings,(1) provides that a court of Washington may not exercise its jurisdiction over a child custody proceeding if at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum. (emphasis supplied).
RCW 26.27.041, Application to Indian tribes, (3) provides that a child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter (emphasis supplied) must be recognized and enforced under Article 3.
ISSUE # 1
Did the Colville Tribal trial court err in ruling in the OFUC that this was a conference pursuant to the UCCJEA and conduct the conference as a UCCJEA conference?
All of the documentation in the Trial Court case file consistently refers to the interaction between the Colville and Snohomish as being pursuant to the UCCJEA. The OFUC refers to it as a UCCJEA conference. Washington State has adopted the UCCJEA in Chapter 26.27 of the Revised Code of Washington (RCW). RCW 26.27.101 provides for a conference between courts in a proceeding under the UCCJEA. The Colville Tribes have not adopted the UCCJEA in the Colville Tribal Law and Order Code (CTLOC). The only way the UCCJEA can be enacted by the Colville Tribes is by adoption by its legislature, the Colville Tribal Council. The majority opinion correctly asserts that the Colville Tribal Court of Appeals does not create legislation. The same applies to the Trial Court. The Colville Trial Court could not adopt the UCCJEA, but it did in the OFUC. The Colville Tribal Council did not adopt the UCCJEA. The UCCJEA is not a part of the law of the Colville Tribes. The majority opinion refers to the conference as a “UCCJEA type procedure” pursuant to the concept of comity. Comity was never mentioned at all in any of the proceedings of the Colville and Snohomish courts. The Colville and Snohomish Courts did not engage in the conference on the basis of comity, but only as a UCCJEA conference. The Trial Court Judge had no authority to act pursuant to the UCCJEA. The Trial Court Judge acted beyond his authority in engaging in a conference with regard to the UCCJEA. Acts by a court acting without authority are void ab initio. CCT v Stensgar, 6 CTCR 39, 3 CCAR 47 (2013). The Trial Court Judge’s action in engaging in a conference with the Snohomish County Superior Court is void ab initio.
Issue # 2
Did the Colville and Snohomish Courts err by considering concurrent jurisdiction in a UCCJEA conference?
The UCCJEA was intended to eliminate the notion of concurrent jurisdiction, as a justification for exercising judicial power, instead focusing on the home state of the child, “that state that the child had resided in for the six months preceding the commencement of a child custody action,” as the basis for subject matter jurisdiction. There is nothing in the UCCJEA that concurrent jurisdiction is a basis for jurisdiction, rather making the home state of the child the paramount consideration. The courts in this case injected a consideration in the OFUC, i. e., concurrent jurisdiction, that cannot be considered in determining jurisdiction. They thereby made a finding that was not authorized by law, and cannot be considered in such a proceeding. Since it was a basis for their Order, the Order is based on an invalid consideration, and is void ab initio.
Concurrent subject matter jurisdiction would only be a relevant issue if the case was being considered pursuant to RCW 37.12.010, in which the State of Washington pursuant to Public Law 280 assumed jurisdiction over child custody cases on reservations in the State of Washington and CCT 5-1-120 in which the Colville Tribe retained jurisdiction over child custody cases. This case was considered by Colville and Snohomish strictly under the UCCJEA, in which concurrent subject matter jurisdiction is not a consideration, and thus concurrent jurisdiction was not a factor to be considered. The courts acted without authority to make such a finding. Doing so was void ab initio.
Issue # 3
Did the Colville and the Snohomish err in a UCCJEA conference by considering the child’s residence in Snohomish County as a fact to consider in order to invoke the most convenient forum factor.
The convenient forum consideration in UCCJEA cases only comes into play if the courts can’t find that there was a home state for the child. In this case the courts did not make any findings that would lend itself to the home state issue. The custody case was filed in Colville Tribal court first. Under RCW 26.27.041 (2) a Washington State court shall treat a tribe as if it were a state of the United States for the purpose of applying articles 1 and 2, which are the General Provisions and Jurisdiction articles of the UCCJEA. Since the courts were treating the conference as a UCCJEA conference, that means that the courts should have been hearing evidence with regard to the home state of the child, which in this case would have been the Colville Indian Reservation. They did not, and erred in not doing so, and by using the most convenient forum applied the wrong part of the UCCJEA to the case. The courts made a finding that was beyond their authority to make. The Order based on considering convenient forum is void ab initio.
Issue # 4
Did the Colville and the Snohomish err by considering this a UCCJEA case when the jurisdictional standards of the Colville Tribe were different than those of Washington State in the UCCJEA?
RCW 26. 27. 251 supra., indicates that in order for the Washington State version of the UCCJEA to apply to the Colville Tribes, the Colville Tribal Code (CCT) must have jurisdictional standards substantially in conformance with the Washington State UCCJEA. CCT 1-1-430 provides that entrance by any person into the Reservation shall be a consent to civil jurisdiction. CCT section 1-1-71 provides that jurisdiction invoked by this code is exclusive and preempts jurisdiction of any state unless federal law provides otherwise. CCT 1-1-431) (a) (6) provides that the Colville Tribes shall have civil jurisdiction over children and their parents with responsibility for the child who leave the jurisdiction and the court had jurisdiction over whom the court had jurisdiction at the time they left. The jurisdictional standards of the UCCJEA in Washington for initial child custody jurisdiction in this case are contained in RCW 26.27.201 and 26.27.041. RCW 26.27.201 (a) provides that a Washington State court has jurisdiction to make an initial child custody determination only if the state is the home state of the child RCW 26.27.201 (1) (a) provides that a Washington State Court has jurisdiction to make an initial child custody jurisdiction if: “Except as otherwise provided in RCW 26.27.231( which pertains to Temporary emergency jurisdiction), this state is the home state of the child at the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;”. It is obvious from reading the jurisdictional standards of the State of Washington and the Colville Tribe that they greatly differ. The provisions of the CTC are not standards substantially in conformance with the UCCJEA with regard to jurisdiction. That means that the UCCJEA does not apply to this case. Neither court should have applied the UCCJEA to this case, and there should never have been a conference pursuant to the UCCJEA participated in by either judge of either court. Considering this case to be a UCCJEA case is void ab initio because the jurisdictional standards of the CCT were not substantially in conformance with those in the Washington State UCCJEA.
Issue # 5
Did Colville have the authority to decline jurisdiction in favor of Snohomish.
CCT “1-1-430 Entrance by any person into the Reservation shall be a consent to civil jurisdiction.” CCT “1-1-431 is titled Acts Submitting Person to Jurisdiction of Tribal Court. Subsection (a) (6) of that section reads as follows: “The Colville Confederated Tribes shall have civil jurisdiction over children and their parent(s), guardian, legal custodians or other persons with responsibility for or control of the child who leave the exterior boundaries of the Reservation and over whom the Court had jurisdiction at the time they left.” Kruse and W. had entered the reservation, thereby consenting to civil jurisdiction. Kruse is a parent of W. She had responsibility or control of W. when she Kruse left the reservation. The Colville Tribal Court had jurisdiction over Kruse and W. at the time they left the reservation. The tribal trial court judge is obliged to follow the laws of the Colville Tribe by their oath. Declining jurisdiction in this case to the State of Washington is in direct contravention of foregoing cited tribal law. The tribal court judge is not vested with authority to do so. The Trial judges action is void ab initio. See CCT v Stensgar 6 CTCR 09, 11 CCAR 47 (2013).
Issue # 6
Should Colville or Snohomish have considered whether the PKPA applied to this case?
The State of Washington is required to comply with the PKPA. In re Marriage of Murphy, 90 Wash.App. 488, 952 P. 2d 624 (1998). In the Murphy case, the appellate court sua sponte raised the issue of the PKPA, even though the trial court had not, and reversed and remanded for the trial court to comply with the PKPA. The fact that W. had been resident on the Colville reservation, in Okanogan county, Washington from his birth to September 10, 2013, when Kruse fled to either Camano Island, Island County, Washington or Snohomish County, Washington, is admitted by Kruse in her briefs and pleadings. For the PKPA to apply in this case, the Colville Tribes must also be bound by the PKPA. There is a split among the courts as to whether Native American tribes are included under the PKPA, and thus bound by it. Some of the cases are discussed in In re Marriage of Susan C., 114 Wn.App 766 (2002). In re Custody of Sengstock 165 Wis. 2D 86, 477 N.W.2d 310, holds that Tribes are not included under the PKPA. In re the Child Custody of D.W.O.E. 2001 Crow 5 (Crow 5/25/2001) and Miles v Chinle Family Court No. Sc-CV-04-08 (Navajo 02-21-2000) held that the PKPA did not apply to Indian Tribes. In re Larch 872 F.2d 66, (4th Cir. 1989) holds that Tribes are included. Martinez v. Superior Court 152 Ariz. 300, 731 P.2d 1244 (1987) holds that Tribes are included. In re Marriage of Susan C., supra, holds that Tribes are included. In the Matter of the Custody of Mariah Watchman, No. 242 (Fort Peck 12-19-1996), the Fort Peck appellate court implicitly held that the PKPA applied to the Fort Peck Tribe.
The issue of whether the PKPA applied to this case was raised in the Colville trial court and never ruled on by that court. The issue was apparently never raised in Snohomish based on the records available in this appeal. The fact of Kruse in effect kidnapping the child from the Colville reservation, the lifelong residence of the child and fleeing to Island County, Washington and subsequently to Snohomish County, Washington is exactly what the UCCJA, PKPA, and UCCJEA have been designed to prevent i.e., stop parents from removing children from their home state, and fleeing to another jurisdiction to institute child custody proceedings when a proceeding has been commenced in their home state. That action leads to exactly what has happened in this case : parallel litigation in both jurisdictions, and appeals therefrom, and the expenditure of resources of both the parties and the courts. That is not in the best interests of the parties, the courts or the children. The case should be remanded to the trial court to address the issue of whether the PKPA applies to the Colville Tribes.
Issue # 7
Did Tupling timely serve Kruse.
There is no question that Tupling filed for custody first, in Colville, but although he sought to serve Kruse, he did not effect service until April 21, 2014, over seven months after his filing. The Colville court never addressed the question of whether Colville lost jurisdiction due to the lapse of time between filing and service at the Okanogan County Courthouse. That is something the Colville trial court should consider on remand.
Issue # 8
Did the Colville err in not recording the hearing which led to the Order From UCCJEA Conference dated November 17, 2014?
The OFUC references a hearing held on the 24th of October, 2014. There is no record of that hearing in the Colville Tribal Court, apparently because the Colville Tribal court judge participated in the hearing from his office in Spokane, rather than at the tribal court. CCT v Dogskin 5 CTCR 31, 10 CCAR 45 (2011), held that when there is no oral record of a hearing, the Court of Appeals is unable to perform a meaningful review of the record and the matter has to be referred back to the trial court to make a new record. The Order appealed in this case seems to incorporate both the considerations appropriate for a UCCJEA conference, and those that should be considered were this a concurrent jurisdiction case, which would be inappropriate in a UCCJEA conference. Without a record, this court is unable to perform a meaningful review to determine on what basis the courts were acting, and thus the matter must be remanded back to the Tribal Court to make a new record.
Issue # 9
Were were all the factors relevant to the application of comity considered in this case.
The starting point of the discussion of this issue is that the conference between Colville and Snohomish was solely a UCCJEA conference, and not a comity conference. The majority decision is correct in asserting that if the UCCJEA and PKPA do not apply in this case, the doctrine of comity applies. That is because the State of Washington assumed jurisdiction over child custody matters on the Colville reservation under P. L. 280 supra., and the Colville Tribes retained its jurisdiction over child custody matters, leaving each with concurrent jurisdiction over child custody matters. “Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Rather it is a nation’s expression of understanding which demonstrates due regard both to international duty and convenience an to the rights of persons protected by its own laws. Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.” Somportex Limited v Philadelphia Chewing Gum Corp. 453 F. 2d 435, (3rd Cir. 1971).
If the doctrine of comity is to be applied there are a variety of considerations which must be evaluated in such a conference which were not made in this case, including whether declining jurisdiction would contravene Colville Tribal law and policy. See Purser v Purser, 9 NICS App 102 (April 2010); In the Matter of the Estate of Etsuko Futagi Toland 180 Wn,2d 836, 329 P.2d 386 (2014); and In re Marriage of Redfox, 2001 Crow 13 (Crow 11/23/2001). The Colville Confederated Tribe has made it clear in its code that declining jurisdiction would contravene both Tribal law and policy as stated in the code. Pursuant to CCT 1-1-70 the jurisdiction of the Tribal Court shall be over all persons within the reservation. Pursuant to CCT 1-1-71 titled Concurrent Jurisdiction, jurisdiction invoked by the code over any person, cause of action or subject shall be exclusive and shall preempt any jurisdiction of any state. Entrance by any person into the Reservation shall be a consent to civil jurisdiction. CCT 1-1-430. CCT 1-1-431 provides that the Colville Confederated Tribes shall have civil jurisdiction over persons residing on the reservation and children and their parents who leave the exterior boundaries of the Reservation and over whom the Court had jurisdiction at the time they left. Taken together these code provisions make it clear that declining jurisdiction would contravene both the code and the Tribes policy which is that cases such as this should be heard in Tribal Court. Declining jurisdiction contravenes such law and policy. The Tribal trial court judge did not have the authority to decline jurisdiction. The Tribal court judge should have put on the record the law and policy of the Tribes as reflected in the Colville Tribes code and attempted to assert jurisdiction based on them. There is no record of the hearing, and nothing in the OFUC lists any of the law and policy of the Colville Tribes which should have been considered. The declining of jurisdiction by the tribal court judge in this case is void ab initio. On remand, the Colville should conduct a conference with Snohomish and attempt to assert jurisdiction according to the law and policy of the Colville Tribes.
It is worth noting that use of the doctrine of comity in this case is only necessary because there is no law clearly applicable to both the State of Washington and the Colville Tribes in resolving child custody jurisdiction. The PKPA may apply, but it is not clear that it does. The UCCJA, PKPA and the UCCJEA were enacted to resolve jurisdiction in child custody cases as between States. Use of the doctrine of comity in child custody jurisdiction as between States was not effective in resolving disputes over jurisdiction, and especially parental kidnapping before and after enactment of the UCCJA and the PKPA. Lack of a law clearly applicable to the State of Washington and the Colville Tribes in child custody jurisdiction leaves the State of Washington and the Colville Tribes in the same situation the States were in before the enactment of the UCCJA, PKPA and the UCCJEA. Just as comity was not an effective means of resolving the issue of child custody jurisdiction as between the States, it is not the most effective means in resolving the issue as between the State of Washington and the Colville Tribes. The State of Washington or the Colville Tribes may decline to agree the other has jurisdiction based on their own interests. A parent can flee from one jurisdiction to the other with the child ands seek to persuade the jurisdiction fled to to accept jurisdiction from a position of strength, physical possession of the child. Until a law is enacted that governs child custody jurisdictional issues as between the State of Washington and the Colville Tribes, comity is the only legal doctrine available to determine jurisdiction.
Issue # 10
If the conference in this case is to be considered under comity rather than the UCCJEA, should the first to file rule have been considered.
Another consideration that was not addressed by the OFUC is the first to file rule. If the conference in this case is considered to be a proceeding under comity the first to file rule would come into play. The Colville Tribal Court has adoptedadopted the first to file rule in concurrent jurisdiction cases in Carson v. Carson 4 CTCR 07, 7 CCAR 17 (2003). Tupling filed the first custody proceeding in Colville. If this case is to be considered to be a concurrent jurisdiction case, in the conference between Colville and Snohomish, Colville should have brought the first to file rule up for consideration. The OFUC does not consider that and there is no recording of the conference between Colville and Snohomish. On remand, there should be a recorded conference between Colville and Snohomish in which the first to file rule should be considered.
This dissent realizes that it may not be possible to untangle the legal morass that has been made of this case in view of the passage of time and erroneous rulings made in both Colville and Snohomish, but Tupling did appeal the entry of the OFUC in this case and this court has a duty to at least point out the errors made for the edification of parties, lawyers and judges in the future, and order the Tribal trial court who created the situation to address these concerns, follow the law, and attempt to remedy its error.
The reason that this dissent discusses the errors Snohomish made in its conduct of the case is that they are errors made in the conduct of the conference between Colville and Snohomish, resulting in the OFUC, which is the subject of this appeal.
ORDER
This dissent would reverse the Order From UCCJEA Conference, and remand the case to the trial court for further proceedings consistent with this dissent.
All Citations
--- Am. Tribal Law ----, 2017 WL 2443081, 13 CCAR 41
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Means to Carry Jurisdiction Into Effect. When jurisdiction is vested in the Court, all the means necessary to carry into effect are also given and in the exercise of this jurisdiction, if the course of proceedings is not specified in this Code, any suitable process or mode of proceeding may be adopted which appears most conformable to the spirit of Tribal Law. |
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