--- Am. Tribal Law ----, 2017 WL 2216926 (Colville C.A.), 13 CCAR 31
Colville Tribal Court of Appeals.
Valerie DESAUTEL, Appelant,
COLVILLE CONFEDERATED TRIBES, Nathan Desautel, Minors, Appellees.
Case No. AP10–003
Decided March 10, 2017
Background: In dependency proceeding, the Tribal Court found children to be minors-in-need-of-care as to mother and not minors-in-need-of-care as to father and placed children in care of father. Mother appealed.
Holdings: The Tribal Court of Appeals held that:
 tribal court’s decision not to hold a competency hearing regarding minor children testifying was not clear error, and
 determination that children were not minors-in-need-of-care as to father and were minors-in-need-of-care as to mother was not clearly erroneous.
Trial Court Case No. MI–2010–30000
Attorneys and Law Firms
Daryl Rodrigues, Office of Public Defender, for Appellant. Melissa Simonsen, Office of Prosecuting Attorney, for Appellee CCT.
Mark Carroll, Spokesperson, for Appellee/Father Nathan Desautel.
Kathleen Hathaway, Office of Legal Services, for the minors/Appellees.
Before Chief Justice Anita Dupris, Justice Gary F. Bass, and Justice Earl L. McGeoghegan
PREFACE*1 This is an old case, and we recognize that it has more than likely been resolved without our opinion at this point. The record we reviewed was voluminous, including listening to the recording. We have since lost one of our members of the panel, Associate Justice Earl L. McGeoghegan. He did participate in the initial discussions of the case, however. Our apologies.
PROCEDURAL SUMMARYIn November, 2009, dependency petitions were filed in the Washington State Superior Court in Ferry County on the two minor children of Valerie Desautel, mother/Appellant (Appellant) and Nathan Desautel, father/Appellee. The Superior Court Judge granted the Tribes’ Motion to Intervene and Transfer the cases to the Tribal Court in December of 2009. The Tribal Court granted Appellee’s, CCT Children and Family Services Program (CFS), motion to amend the Petition for Minor-in-Need-of-Care (MINOC) to include Appellant’s minor child from a different relationship and a more detailed fact pattern.
Appellant and Appellee Desautel had been going through the State’s civil court in a custody action at least two (2) years prior to the dependency filings. The adjudicatory hearings in the Tribal Court occurred between April 26, 2010 to May 7, 2010. The Court took in extensive testimonial and documentary evidence. The Court entered its final Findings of Fact and Conclusions of Law, “Amended Order/Nunc Pro Tunc Findings of Fact, Conclusions of Law, Order,” dated May 10, 2010, nunc pro tunc to April 4, 2010. The Court found the children to be minors-in-need-of-care, and placed two with their father, Appellee Desautel, and the other with a relative, not the mother. The Court found all three children to be minors-in-need-of-care as to their mother, and the two children of Appellee and Appellant to not be minors-in-need-of-care as to their father, Appellee Desautel. Appellant filed a timely appeal challenging the findings of dependency as well as the legal conclusions and orders thereto.
It is noted that in September, 2010, Appellee Desautel moved to dismiss the appeal, stating Appellee had signed over temporary custody of their children to him in a State Court proceeding. Appellant objected but no one asked for a hearing, thus the issue was moot.
ISSUESAlthough Appellant sets out seven (7) separate issues, they can be summed up in three:
1. Did the Court err by not having a competency hearing regarding minor children testifying, and regarding the admission of a minor’s statements regarding the allegations of sexual abuse?
2. Did the Court err in finding clear, cogent and convincing evidence that the three children were minors-in-need-of-care as to Appellant/mother and not as to Appellee/father of two of them?
3. Was Appellant given due process in the manner in which the adjudicatory hearings were held in light of the comments of the Judge regarding her findings?
STANDARD OF REVIEW Questions of law are reviewed de novo, and questions of fact under the clearly erroneous standard. CCT v. Naff, 2 CCAR 50 (1995). When the questions are a mixture of fact and law, we weigh whether justice favors the Court of Appeals or the Trial Court to decide whether to review the whole record de novo. Id.
*2 The question of law herein is regarding children’s testimony in child sexual abuse cases. Appellant raises several factual challenges which necessitates a review of the whole recorded record of the prolonged adjudicatory hearing. We find the first issue will be reviewed de novo and because of the extensive record of the hearings, and the first-hand experience of the Judge during the prolonged hearings, justice is better served to review the facts under the clearly erroneous standard.
DISCUSSION1. Did the Court err by not having a competency hearing regarding minor children testifying, and regarding the admission of a minor’s statements regarding the allegations of sexual abuse?
First, there is question of whether Appellant raised this argument at the Trial Court, and, therefore Appellees argue, the matter is not ripe for appeal. We have addressed competency and hearsay evidence issues once before in our Court. Bush v. CCT, AP 90–13173, in which the CoA affirmed the Trial Court’s adoption, as guideline, Washington State RCW 9A.44.120, which set out the parameters of when a child is competent and when the child’s out-of-court statements could be used as evidence as an exception to the hearsay rule. Bush was a criminal case, but is the only published opinion of both the Trial Court and CoA of our rule of law. We hold the Trial Court did not err.
In reviewing the facts under the clearly erroneous standard we do not substitute our judgment for that of the Trial Courts, even if we would have ruled differently. We review all of the evidence to decide if there is sufficient evidence to support the Trial Court’s findings.
 Appellant’s challenges to the findings of the Trial Court, e.g., whether Bradley Michel’s presence and past history constituted a danger to the children, or whether physical abuse and/or sexual abuse occurred in either parent’s custody, really are a challenge to how the Judge weighed the evidence presented. The credibility of any witness or evidence is the sole province of the fact-finder. There was extensive testimony on everyone’s behalf, both professional and personal. There is ample evidence for the Judge to weigh and find as she did. We find no clearly erroneous findings and conclusions. We so hold.
Appellant argues she wasn’t allowed to make her case to the Court regarding the allegations of sexual abuse by Appellee Desautel, and that the Judge had made up her mind before the conclusion of the case. Appellee aptly points out that the burden of proof regarding whether the children were minors-in-need-of-care as to their father was on the Tribes, not the mother. It appeared from a review of the record that at times the parties inappropriately tried to morph this case into the civil custody case. The Judge, at the conclusion of the Tribes’ case, found insufficient evidence as to the father, but did not rule as to the mother at the time.
The Judge commented that she was going to start on her written decision, even though Appellant hadn’t presented her case yet. As imprudent as the remark may have been, it does not rise to the level of a due process violation. We so hold.
The Trial Court’s Order is hereby AFFIRMED. This case is remanded to the Trial Court for action consistent with this Opinion and Order.