--- Am. Tribal Law ----, 2024 WL 4040422 (Fort Peck C.A.)
Only the Westlaw citation is currently available.
Fort Peck Court of Appeals.
In the MATTER OF: B.J. Jr. (D.O.B.: XX/XX/XXXX), A.J. (D.O.B.: X/XX/XXXX), and E.S. (D.O.B.: XX/XX/XXXX) Minor Indian Children.
And Concerning: Christine Stops, Appellant,
v.
Vivian Jones, Appellee.
CAUSE NO. AP 863
|
Signed June 20, 2024
|
FILED AUGUST 30, 2024
ORDER
¶1 This matter came before the Fort Peck Appellate Court on a Notice of Appeal filed October 6, 2023, challenging the lower court’s Custody Order of September 19, 2023 (“Custody Order”) granting custody of the minor children to their grandmother Vivian Jones. Appellant argues that she did not receive service of the summons until after the hearing and that the children reside with her in Washington.
¶2 Appellant filed supplemental documentation with this Court on December 18, 2023 that contains a signed Affidavit from Tara Milloy, confirming Appellant did not receive notice of hearing. Appellee filed a response on April 12, 2024 and indicated that she raised her grandchildren for many years and would like to have visitation rights.
BACKGROUND
¶3 This matter involves a custody dispute between the Appellant, minor children’s mother, and the Appellee, the minor children’s paternal grandmother. On August 15, 2023, Appellee filed a petition for custody of the minor children alleging that the family was homeless, Appellant fails to maintain communication with Appellee to facilitate visitation previously granted by the Tribal Court, and one of the children, E.S. (11/21/14) has medical issues that were of concern to Appellee. There is a long history of alleged child abuse and neglect of the minor children and the Fort Peck Tribal Court has previously heard and issued custody orders in regard to the minor children prior to September 19, 2023.
¶4 The lower court record reflects that the children were residing in Washington with Appellant prior to the filing of Appellee’s petition. Appellant was served notice of the hearing by certified mail at 1105 Broadway, Long View, WA 98632, however the Appellant alleges she did not receive the notice until after the Court hearing due to it being misplaced by someone else who accepted service. The mother failed to appear at the hearing. The father of the children, Brent Jones Sr. resides in Grand Forks, ND and was served with notice at the address of record. Mr. Jones also failed to appear for the hearing.
¶5 The Tribal Court made findings based on Appellee’s testimony during the hearing, granted custody to Appellee, and issued an order that physical custody of the children be immediately turned over to Appellee. Appellant subsequently raised the issues of notice and while not explicitly raised as an issue for appeal submitted documentation to the Tribal Court regarding the children’s residence in Washington after the Tribal Court issued its Custody Order. She then filed her petition to appeal.
¶6 Furthermore, one of the minor children, B.J. Jr. (D.O.B. 12/17/08) wrote a letter to the Court on September 27, 2023 alleging that he did not want to be in the custody of his paternal grandmother due to allegations that a member of Appellee’s family had sexually abused his younger sister. These allegations appear to be admitted in Appellee’s response. These allegations were also raised in a prior Custody Order issued on April 22, 2022 by the mother’s statement that both the father and a cousin sexually abused the minor child, A.J. (D.O.B. 2/25/12). That matter also contains evidence that a federal investigation was conducted regarding the allegations, but it is unclear who the suspect of the investigation was. In April 22, 2022, the Fort Peck Tribal Court granted custody of the children to Appellant with visitation granted to Appellee.
STATEMENT OF JURISDICTION
¶7 The Fort Peck Appellate Court reviews final orders from the Fort Peck Tribal Court. 2 CCOJ § 202. The Custody Order issued by the Fort Peck Tribal Court on September 19, 2023 is a final order subject to appeal.
STANDARD OF REVIEW
¶8 This Court reviews de novo all determinations of the lower court on matters of law but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence. 2 CCOJ § 202.
ISSUES
¶9 1. Whether the Fort Peck Tribal Court had jurisdiction to issue the Custody Order given the children’s residence in Washington State since the issuance of the April 22, 2022 Child Custody Order?
¶10 2. Whether Appellant received notice of the custody hearing?
DISCUSSION
I. THE TRIBAL COURT RECORD ESTABLISHES SUFFICIENT FINDINGS AS A BASIS TO CONCLUDE THE TRIBAL COURT HAD JURISDICTION TO HEAR THIS MATTER.
¶11 The Fort Peck CCOJ, Title 10, Section 304, defines the jurisdiction of the Tribal Court in child custody cases and states:
(a) The Fort Peck Tribal Court has jurisdiction to make a child custody determination by initial or modification decree if:
(1) The Fort Peck Reservation:
(A) Is the home of the child at the time of the proceedings; or
(B) Has been the child’s home within 6 months before commencement of proceeding and the child is absent from this home because of his removal or retention by the person claiming custody or for other reasons, and a parent or person acting as a parent continues to live within the Fort Peck Reservation; or
(2) It is in the best interest of the child that the Fort Peck Tribal Court assume jurisdiction because:
(A) The child and his parent or the child and at least one contestant have a significant connection with the Fort Peck Reservation; and
(B) There is available within the Fort Peck Reservation substantial evidence concerning the child’s present or future care, protection, training, and personal relationship; or
(3) The child is physically present within the Fort Peck Reservation and:
(A) Has been abandoned; or
(B) It is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
(4)
(A) No other state or tribe has jurisdiction under prerequisites substantially in accordance with subsections (a)(1), (a)(2), or (a)(3) of this section or another state or tribe has declined to exercise jurisdiction on the ground that the Fort Peck Reservation is the more appropriate forum to determine custody of the child; and
(B) It is in the best interest that the Court assume jurisdiction.
(b) Except under subsections (a)(3) and (a)(4) of this section, physical presence on the Fort Peck Reservation of the child or of the child and one of the contestants is not alone sufficient to confer jurisdiction on the Fort Peck Tribal Court to make a child custody determination.
(c) Physical presence of the child, while desirable is not a prerequisite for jurisdiction to determine his custody.
...
¶12 The Court found it had jurisdiction in accordance with the Fort Peck Comprehensive Code of Justice (CCOJ), Title 10, Chapter 3, however made no specific factual findings supporting that conclusion. It is clear that Section 304(a)(1)(3)(4) are not a basis for the Fort Peck Tribal Court to exercise jurisdiction in this matter, however it is possible that the Tribal Court exercised jurisdiction based on Section 304(a)(2), based upon the Tribal Court’s prior exercise of jurisdiction and exercise of continuing jurisdiction based on the residence of the parties. The record reflects the Fort Peck Tribal Court has continued to exercise jurisdiction over the custody of the children after the father who resided within the Fort Peck Reservation was granted custody from the Montana District Court due to alleged abuse and neglect of the children while in Appellant’s custody.
II. THE ISSUE OF NOTICE WAS NOT PRESENTED IN THE TRIBAL COURT AND THEREFORE THIS COURT LACKS A FACTUAL RECORD TO MAKE A DETERMINATION ON THAT ISSUE.
¶13 Appellant submits that she did not receive her Notice of Hearing and therefore was unaware of the Court date and failed to appear. This Court held that the Fort Peck Court of Appeals is not the appropriate forum to address a factual dispute concerning why a party failed to appear. In the Matter of L.H. and A.H., APP 810 (2021); In the Matter of N.C., APP 809 (July 8 2021). The appropriate remedy to address the issue of Appellant’s failure to appear is to move the lower court to set aside the order under the Fort Peck CCOJ, Title 8, Section 302. This Court is unable to reopen the lower court record and permit additional evidence regarding the circumstances surrounding the reason that a party failed to appear until the Tribal Court has made a determination on these factual issues in the first instance and develops the record accordingly.
¶14 Furthermore, it appears to this Court, based on the response from Appellee, that the parties may have resolved this issue, agreeing to allow Appellant to maintain custody of the children, with visitation to the Appellee. However, the current status is not clear from the record.
ORDER
¶15 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court affirms the Tribal Court on the issue of jurisdiction. This Court remands this matter to the Tribal Court to address the issue of notice and determine if the parties have resolved the issue presented on appeal and have negotiated a new custody arrangement for the Tribal Court’s consideration.
SO ORDERED the 20th day of June 2024.
/s/ Erin Shanley
Erin Shanley, Chief Justice
B. J. Jones
Associate Justice
James Grijalva
Associate Justice
All Citations
--- Am. Tribal Law ----, 2024 WL 4040422