15 CCAR 61
Selena ADRIAN, Appellant,
v.
Buffy Nicholson and Skywalker Renion, Appellees.

Nos. AP22-003, 8 CTCR 17
Colville Confederated Tribes Court of Appeals
July 11, 2022

 

Trial Court Case No. CV-CU-2021-44154]

Before Chief Justice Anita Dupris, Justice Mary Finkbonner, and Justice Dennis L. Nelson

PROCEDURAL SUMMARY

Dupris, CJ

On September 15 2021 Appellee filed a Petition for Custody and/or Support for the minor child, K.R., and against Appellant and Skywalker Renion, the parents of K.R..[1 ]

Also on September 15, 2021 Appellee filed a Motion and Affidavit for emergency restraining orders, temporary custody orders, and an Order to Show Cause to Intervene in Custody. The Court granted temporary custody, visitation, and restraining orders on September 16, 2021, and set a Show Cause for September 20, 2021.

At the September 20, 2021 Hearing Appellant asked for a continuance to get evidence to present. The Court granted her Motion to Continue and ordered that the temporary orders would continue. The Show Cause was continued to September 27, 2021.

On September 27, 2021 Appellee filed an Amended Petition for Custody and/or Support in which she added a co-petitioner, Shannon C. Nicholson.

At the September 27, 2021 Show Cause hearing the Court found" [Appellant] wants the help of [Appellee] to help with [minor]." The Court granted Appellee temporary custody with visitation and ordered Appellant could not remove minor from Appellee. The Court then set a "status hearing" for December 7, 2021. The Order of September 27, 2021 hearing was not signed until October 16, 2021.

The record shows the Court held another Show Cause hearing on January 11, 2022 at which Appellant did not appear. The Order states Appellant was served Notice of this hearing, but the Notice is not reflected in the Court's records. Appellees were granted temporary custody. The Court then set a Custody Hearing in the Order of January 11, 2022, and gave notice of the Custody Hearing set for February 22, 2022 with the following language: "THIS ORDER SHALL SERVE AS NOTICE TO ALL PARTIES OF THE NEXT SCHEDULED HEARING."

At the Custody Hearing on February 22, 2022, the Court granted Appellees permanent custody of K.R., finding it was in the minor's best interests to grant Appellees custody. The Court took judicial notice of a Minor-In-Need-of-Care (MINOC) case in its findings. Further it found that Appellant had a recurring drug problem, while at the same time recognizing Appellant's testimony that she was currently in a treatment program.[2 ]

The Court, after being notified on record of her new address, sent the final order of custody to Appellant to her old address. She filed her Appeal on April 18, 2022, eight days passed the normal 30-day limit, counting from the time she actually got a copy of the final order.

We granted the Appeal and held an Initial Hearing on June 17, 2022. At the Initial Hearing we found (1) good cause to go forward with the appeal; (2) the Court committed reversible error because its Notice of Hearing for the Custody Hearing did not comport with the law on what is to be included in the Notice; (2) the Court committed reversible error by not applying the requisite standards in taking judicial notice; and (3) the Court committed reversible error in not applying the correct standards for third party custody actions. Based on the reasoning below, we reverse and remand.

ISSUES

Appellant raises three Issues:

1. Did the Court err in not providing adequate notice of the permanent Custody Hearing held on February 22, 2022?

2. Did the Court err in not applying the correct standards for taking judicial notice of a MINOC case?

3. Did the Court err in not applying the correct standards for a third party custody case?

Appellee raises the issue:

1. Should the Appeal be dismissed as untimely, as the Order of Custody was entered on February 22, 2022, and signed on March 8, 2022, 40 days before the Appeal was filed?

STANDARD OF REVIEW

All four issues are issues of law, and will be reviewed de novo. Naff v. CCT, 2 CCAR 50 (1995).

Timeliness of the Appeal

The final Order was entered on Record on February 22, 2022, signed on March 8, 2022, and mailed on March 11, 2022. The record shows the Court mailed the Order to the wrong address. The Court file indicates the Clerk sent the Order to her old address, and that it was returned as undeliverable. She gave the Court her current address at the Feb. 22, 2022 hearing (it is noted in the Judge's notes from the hearing). She filed it on the 38th day from the time it was mailed, 8 days after the 30-day time limit for filing an appeal.

We have held that "It is the Court of Appeals's duty to decide what the law is and to administer justice fairly. This Court may make exceptions to procedural rules when the issues presented are of such a serious nature that this Court should reach a decision in spite of the procedural flaws." Gallaher v. Foster, 6 CCAR 48 (2002). The Appellant is pro se. The nature of the Court's errors are such that there is good cause to grant the Appeal under the standards established by the Gallaher case. We so hold.

Adequate Notice of a Permanent Custody Hearing

The language that needs to be in a Notice of a permanent custody hearing has become black letter law in our Courts. In 1991 this Court recognized the inadequacy of the Code in informing parties of what will be required in a custody proceeding. We stated:

"The ...Code gives inadequate notice to litigants of the Court's requirements that the hearing on permanent custody is the one and only opportunity for presentation by the litigants of testimony of their witnesses, and of the requirements for live testimony. In the absence of an amendment to the Code, the Trial Court's notice to the parties setting the hearing should advise the litigants of those requirements." George v. George, 1 CCAR 52 (1991).

Notices for custody hearings have been required to include specific language on the due process protections to be afforded to litigants for over 30 years. The Notice issued by the Court in this case was at the end of a temporary custody order, and just stated the Order was the Notice for the "next scheduled hearing." This does not comport with the George requirements, and is reversible error.

Judicial Notice

We have set standards for taking judicial notice, first in a criminal case, (Louie v. CCT, 8 CCAR49, (2006)); then in MINOC cases, (In Re Gorr, 8 CCAR 76 (2006)), and Randall/LaCourse v. CFS, 11 CCAR 39 (2012)); and finally extended the standards to all cases in a third party custody case, Whalawitsa v. Kauweloa, 14 CCAR 27 (2018). The following must be considered when taking judicial notice:

1) Taking judicial notice is disfavored, especially when the Court takes judicial notice of facts that would prove or disprove an allegation...; 2) Courts may take judicial notice of public records, but only to prove the existence of the orders, and not the proof of the facts therein; and 3) when a Court is going to take judicial notice, the Judges should (a) give notice to the parties of what he is going to take judicial notice so the parties may provide rebuttal evidence; and (b) allow the parties to present such rebuttal evidence.

The record shows that none of the requirements for taking judicial notice were followed by the Court in this case. This is reversible error. We so hold.

Third Party Custody

A third party custody action must first include evidence, or lack of evidence, on the fitness of a parent. This is a relevant factor which evidence is first raised by the third-party petitioner to overcome a rebuttable presumption of the parent's right to custody. Best interests is the factor to consider if the presumption of fitness is overcome. Jerred v. Leskinen, 12 CCAR 73 (2016). The Court did not address this standard in its findings. This is reversible error.

CONCLUSION

Based on the foregoing reasoning, we hold that the errors of the Trial Court are such that the Appeal is granted, and the order of February 22, 2022 is REVERSED, and this matter is REMANDED for a new trial, which must comport with all the requisite standards.

It is so ORDERED.
 
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Notes:
[1 ]The child's name will not be used in this Opinion; the father, Skywalker Renion, was served by publication and has not participated in this case. He will not be discussed in this Opinion.
[2 ]A review of the Court's Findings of Fact show a mixed bag of actual finding of fact, statements of what the parties stated to the Court instead of a finding of whether the Court found the statements credible (e.g. Finding # 1.7 "The Petitioners believe the minor child would not be safe..."; #1.9 "The Petitioners state that the Respondent... has provided... proof of her sobriety"; and #1.10: "The Respondent... stated to this Court..."), and some conclusions of law (e.g. #1.8: "The Petitioners request full custody... and this would be in the best interests of the minor..."; and "1.16: The Court find that it would be in the best interest of the minor...").
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