--- Am. Tribal Law ----, 2024 WL 4117421 (Fort Peck C.A.)
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Fort Peck Court of Appeals.
In the INTEREST OF: K. E., DOB: X-XX-XXXX, a Minor Indian Child
Heaven Lee-Pipe, Defendant-Appellant
v.
Michael Escarcega, Plaintiff-Appellee
CAUSE NO. AP 861
|
FILED SEPTEMBER 6, 2024
BEFORE JUSTICES SHANLEY, JONES, GRIJALVA
ORDER AFFIRMING TRIBAL COURT DECISION
¶1 This matter came before the Fort Peck Court of Appeals (FPCOA) on a Petition for Review filed by the mother of this child seeking review of an August 23, 2023 custody order awarding joint legal custody of the child to the parents with the father having primary custody during the school year and the mother during the summers. The mother appealed claiming that the lower court erred in refusing to grant comity to a Sisseton-Wahpeton Oyate (SWO) Tribal Court order dated January 11, 2018 purporting to award Shelly DuMarce legal custody of this child and two other children of the mother. That order was apparently the result of child protection proceedings before that Court where the mother agreed to the children being placed with Ms. DuMarce as a permanency option. Nothing in that order reflects the father’s agreement to that placement order or even that he had been notified of the matter. That order purported to retain exclusive jurisdiction in the SWO Court.
¶2 After the child was residing on the Fort Peck reservation with the father while the mother was in recovery the father and his wife filed for custody on May 19, 2023 asserting that the child was with them and was doing well in their care. The mother opposed the request and filed the SWO Court order placing the child and her other children with her mother. She did not seek comity for this order, as Ms. DuMarce no longer was seeking custody, but simply to argue that the SWO Court had exclusive modification jurisdiction and that the father needed to file with that Court. The lower court rejected that argument finding that the father was not even aware of the SWO Court proceedings and thus the order purporting to grant that Court exclusive modification jurisdiction was not entitled to comity. The Court then analyzed the best interests of the child factors and issued the joint custody order. The primary reason the Court awarded the father custody during the school year was the child’s marked improvement in school performance while with the father and his wife, compared to when the child was with the mother and maternal grandmother. The mother then appealed to this Court raising the jurisdiction issue as the primary basis for appeal.
LEGAL ANALYSIS
¶3 The mother argues that the lower court should have dismissed the father’s petition and required him to file in the SWO Court where her mother had gained custody of the child in child protection proceedings. It is true that the SWO Court order did reflect that that Court would retain jurisdiction over this child and the other two children of the mother. It is undisputed, however, that the child was living with the father and his wife on the Fort Peck reservation when the father commenced his custody petition and had been residing with him for the school year of 2022-2023 as reflected by the school records on file. In addition, there is nothing in the record before the Court that shows that the father was notified of the hearing where the maternal grandmother was granted custody of his child. In fact, it appears from the record that the Fort Peck Tribal Court had prior custody proceedings filed in its Court at the time the SWO Court exercised jurisdiction over the child to place the child with the maternal grandmother. The record contains a home study requested by the Fort Peck Tribes on the grandmother’s home on the Lake Traverse reservation to determine if she would be an appropriate placement option for the Fort Peck Court. When that home study was completed, it was used by the maternal grandmother to file for custody in the SWO Court. The fact that the Fort Peck Tribes requested the home study corroborates the father’s assertions that the Fort Peck Court exercised jurisdiction over the child first and the child was then subsumed into the custody matter involving the mother’s other children who were SWO members residing on that reservation with no notice to him.
¶4 Had the mother provided proof that the father was aware of the SWO Court proceedings and the Fort Peck Court or CPS, whichever agency referred the matter to the SWO for a home study, was also aware and consented to that Court assuming jurisdiction this Court would be inclined to agree that the SWO Court possessed exclusive jurisdiction to modify the prior order. However, the lower court found that neither the father nor the Fort Peck Tribe was aware of the proceeding that led to the custody order dated January 11, 2018.
¶5 The mother cites various decisions by this Court including Bluehorse v. Bluehorse Jr. APP 623 (February 12, 2015), where this Court upheld the application of the UCCJEA to determine custody jurisdiction in cases such as this. This Court has reviewed that case and the Pratt v. Pratt, APP 058 (July 1989) case cited by the mother and finds that in both of those cases both parents had notice of the child custody proceeding held in the other Court asserting modification jurisdiction. In this case the mother has failed to demonstrate that the father had notice of the SWO proceedings or that the Fort Peck Tribes deferred to the jurisdiction of the SWO Court over this child by merely referring the matter to the SWO for a home study on a potential relative placement.
¶6 This Court finds that the Tribal Court did not err in finding grounds to award the father custody. It should be remembered that the SWO Court awarded the maternal grandmother custody, not the mother, so there had been no prior award of custody to the mother. The Court thus applied the appropriate best interest of the child standard to award the father custody.
ORDER OF AFFIRMANCE
The Court thus affirms the Tribal Court decision.
SO ORDERED this 29th day of August 2024.
All Citations
--- Am. Tribal Law ----, 2024 WL 4117421