--- Am. Tribal Law ----, 2019 WL 2260681 (Fort Peck C.A.)
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Fort Peck Court of Appeals,
ASSINIBOINE AND SIOUX TRIBES.
In the Adoption of: P.R, (DOB 7/24/2002); M.Y.H, (DOB 6/14/2004); A.R. Ill, (DOB 8/21/2005); M.R. (DOB 8/1/2007); AND P.R (DOB 8/21/2013) Minor Indian Children
And Concerning: ALLEN RUSSELL II, Appellant
LAUREEN YELLOW HAMMER/COMBS, Appellee.
CAUSE NO. AP #783
MAY 23, 2019
Attorneys and Law Firms
Appeal from the Fort Peck Tribal Court, Imogene Lilley, Presiding Judge. Appellant and Appellee appeared pro se.
Before Smith, Chief Justice, and Shanley and Desmond, Associate Justices.
ORDER GRANTING APPEAL AND REMANDING WITH INSTRUCTIONS
Maylinn Smith, Chief Justice
This matter came before the Fort Peck Appellate Court on a Notice of Appeal filed April 16, 2019, challenging the lower court’s orders of March 25, 2019 terminating the biological father’s parental rights and the April 15, 2019 order allowing stepparent adoption of the minor Indian children. Appellant, Allen Russell II, timely filed his appeal of the orders. Nothing was filed in opposition to request for appeal.
STATEMENT OF JURISDICTION
The Fort Peck Appellate Court has jurisdiction to review all final orders of the Fort Peck Tribal Court when an appeal is timely filed. 2 CCOJ § 202. After reviewing the record in this matter, this Court grants review and remands the matter back to the lower court with instructions.
STANDARAD OF REVIEW
This Court reviews questions of law de novo. 2 CCOJ § 202. Findings of fact are not set aside unless there is insufficient evidence to support the finding in the record. Sufficiency of service is a mixed question of fact and law.
Did the lower court violate Appellant’s due process rights when it terminated parental rights and granted the petition for stepparent adoption without ensuring the lower court record contained sufficient proof of service?
A Court must determine that parties receive adequate notice of all legal proceedings. Given the recognized importance of parental rights, it is particularly important that a parent have sufficient opportunity to appear and be heard whenever termination of this right is at issue. The court record must always clearly reflect that all parties received notice of the time, place and nature of the court action being heard. This basic requirement is consistent with due process requirements under the Indian Civil Rights Act, 25. U.S.C. § 1302 (8), service requirements established by tribal law, 8 CCOJ § 102, and this Court’s precedent. See Leachman v. Holen,
FPCOA # 634 ¶48-52 (2017) and Atchico v Deherrera,
FPCOA #429 (2005).
The lower court order indicated that Appellant received notice of these proceedings by publication. The record, however, is devoid of any proof showing that the requirements for notice by publication were met, or that publication actually occurred in accordance with tribal code requirements. Due process is best achieved when the service requirements found in 8 CCOJ § 102 of the tribal code are utilized in descending order. Service by publication is the least preferred method for serving a party to an action and should only be used when a court determines all other methods of service have failed. The lack of any proof of service on Appellant in the lower court record violates due process requirements.
Given the lack of sufficient evidence in the lower court record to satisfy due process requirements, this Court REMANDS the matter back to the lower court. The lower court shall set aside the termination of parental rights order and stepparent adoption order. The Tribal Court shall not proceed with the termination of parental rights hearing until it obtains adequate proof showing Appellant received sufficient notice of the court proceedings in accordance with the Tribal Code.
SO ORDER this 23rd day of May 2019.
FORT PECK COURT OF APPEALS
Erin Shanley, Associate Justice
Brenda C Desmond, Associate Justice
--- Am. Tribal Law ----, 2019 WL 2260681