--- Am. Tribal Law ----, 2019 WL 1768004 (Colville C.A.), 7 CTCR 32, 7 CTCR 32
Colville Tribal Court of Appeals.
Jennifer Nolan, Appellant,
Celia Paul and Barry Collins, Appellees.
Case No. AP18-017
Decided March 19, 2019
Trial Court Case No. CV-CU-2015-38168
Attorneys and Law Firms
Parker Parson, Attorney, for Appellant.
Appellees were not represented and did not appear.
Before Chief Justice Anita Dupris, Justice Dennis L. Nelson, and Justice Mark W. Pouley
Jennifer Nolan (Appellant) and Celia Paul (Appellee) filed a Petition for Agreed Custody for Appellee’s children with the Trial Court on June 19, 2015. Appellee Barry Collins, the children’s father, was in jail at the time of the filing and did not sign the Petition. Appellant was granted temporary custody of the three minor children of the Appellees, KRC, ASC, and ZBRC, on June 19, 2015 pending a hearing on June 30, 2015. The Trial Court issued its an order from this hearing on September 11, 2015 granting temporary custody to Appellant.
A final order granting custody of the children to Appellant was entered on record on August 1, 2016, signed on August 25, 2016, and resigned on September 1, 2016. There is no reason given by the Court why the order had to be resigned. The final order required Appellee to have supervised visits until she submitted two clean UA’s. Appellee was also ordered to obtain a chemical dependency evaluation and follow the recommendations; attend the Peacemaker’s Circle to address domestic violence and parenting issues; and to obtain a mental health evaluation and follow the recommendations of the evaluation.
The Court entered an Order on Motion dated September 11, 2017 and filed September 14, 2017, which modified the parenting plan regarding visitation. There is no written motion in the Trial Court file requesting such a change. On November 21, 2017 Appellant filed a Motion for Emergency Order asking the Court to reconsider its Order of November 14, 2017, in which the Court once again modified the parenting plan significantly without adequate notice to Appellant that such a modification would be considered. This motion was granted and the order was reversed.
Once again the Trial Court entered an order modifying the visitation portion of the original final custody order on September 27, 2018 without notice to Appellant that the Court was considering the modification. One reason the Court gave for the modification was based on a finding that Appellee was in compliance with her counseling orders. Appellant requested the evidence this finding was based on, and asked the Court to reconsider its ruling again.
Appellant was not allowed to review the evidence upon which the Court modified its orders regarding Appellee’s visitation. The Court stated that Appellant was not privy to the evidence based on “HIPAA” laws. The Court denied Appellant’s Motion to Reconsider by an order dated October 3, 2018. Appellant filed a timely appeal1, and the Initial Hearing was held on December 21, 2018.
At the Initial Hearing we determined that Appellant was not given due process in the method the Trial Court uses to review and modify final custody orders, and, based on the reasoning set out below, we find cause to reverse and remand the Trial Court’s orders of September 27, 2018 and October 3, 2018.
A review of the file shows that the Trial Court subjects the parties to what are termed “Status Hearings” or “Review Hearings,” even though a final custody order has been in place since 2015. The main purpose of these hearings appears to be to monitor Appellee in order to address her visitation with the children.
A review of the child custody statutes show the following:
1. CTC § 5-1-123 requires the party seeking a modification of a custody order to file a motion and affidavit setting out the facts upon which the movant bases his or her motion. The Motion and Affidavit must be served properly on the other party, and the Court must deny the request unless it finds adequate cause to set a show cause hearing on the modification request.
2. CTC § 5-1-126(b) allows the Court to modify a visitation order, regardless whether there has been a change of circumstances, whenever the change would serve the best interests of the child.
3. CTC § 5-1-128 sets out the stringent standards for modifying a custody order, which are not favored by this statute.
The Trial Court relies on CTC § 5-1-126(b) in finding it necessary to set continual review hearings. Such a continual review of the non-custodian’s compliance or noncompliance with the conditions the Court has set out gives the appearance of a quasi-dependency case. This conflicts with the purpose to have finality in the permanent order and causes unnecessary disruption in a case in which the children are not in a dependency situation.
The child custody statutes must be read as a whole, and attention needs to be taken regarding the due process safeguards therein. When a custody order is granted, it is presumed it will not be modified continually. The visitation statute relied upon by the Court is just on part of the whole scheme of the custody statutes. When the final custody order was entered, it was based on what was in the best interests of the children. The Court also found it in the best interests of the children that Appellee/mother address her drug and alcohol problem, and attend counseling. Appellee was given supervised visitation pending the outcome of these conditions.
Even though there is a specific statute referring to modifying visitation, it does not change the fact that modifying a visitation order is modifying the underlying custody order. CTC § 5-1-126(b) must be read in conjunction with CTC § 5-1-123 and CTC § 5-1-128. In this case, Appellant was not afforded the due process in that she did not receive the notice required to inform her that a modification of visitation was going to addressed. Appellee did not file the required motion and affidavit, so the Court could not make a finding that a show cause hearing should be set as required.
Finally, Appellant’s due process was violated when the Court appeared to rely on evidence the Court would not make available to Appellant when the Court last modified the visitation orders. It is black letter law that if the Court is going to rely on evidence, all parties have the right to review the evidence. We were unsure what the reference to HIPAA meant, and the Order of October 3, 2018 did not have adequate findings of fact to elucidate the issue for us.
In conclusion, continual reviews of permanent custody cases, set by the Court without a properly-made request of one of the parties should be used sparingly. In order to appear objective, the Court should only hold hearings in civil cases when procedurally-adequate requests are made by one of the parties. Such cases are not dependency cases. Secondly, the Court needs to make adequate findings of fact when it is modifying a visitation order, setting out specifically why it is in the best interests of the children. That is the test to use, not what is in the best interests of the non-custodian. Last, the apparent lack of due process for the appellant necessitates that we reverse and remand for a hearing which comports with the custody laws. We so hold.
It is THEREFORE ORDERED that the Order of October 3, 2018 is reversed and this case is remanded to the Trial Court for action consistent with this decision.
--- Am. Tribal Law ----, 2019 WL 1768004, 7 CTCR 32, 7 CTCR 32
She filed an Interlocutory Appeal, but we are treating it as a final appeal in that it addresses a modification of a final custody order.