22 NICS App. 22, IN RE JMA (December 2024)
IN THE PUYALLUP TRIBAL COURT OF APPEALS
PUYALLUP INDIAN RESERVATION
TACOMA, WASHINGTON
In re the matter of J.M.A.
Maria Mayorga, Respondent/Appellant,
v.
Stephanie Aguilar, Petitioner/Appellee.
NO. PUY-CV-AP-2024-0077 (December 5, 2024)
Before: Ric Kilmer, Presiding Judge; Brett Lee Shelton, Judge; Lisa M. Vanderford-Anderson, Judge.
OPINION
Per curiam:
SUMMARY OF PROCEEDINGS
This matter is before the Puyallup Tribal Court of Appeals pursuant to a Notice of Appeal filed by Appellant, Maria Mayorga, on July 8, 2024, appealing the Puyallup Tribal Court’s Order on Motion signed June 20 and entered June 21, 2024. (Appellant later filed a motion for reconsideration of that order, which was denied by subsequent Order on Motion entered July 2, 2024.)
Maria Mayorga, Appellant, is the mother of J.M.A., an enrolled member of the Puyallup Tribe of Indians. Ms. Mayorga is also enrolled Puyallup, as is her sister, Stephanie Aguilar, Appellee. In 2013, by mutual agreement, Ms. Aguilar was granted custody of J.M.A., who had been born a year earlier, in 2012, by the Thurston County Superior Court (“state court”).
Recently, in late 2023, Ms. Mayora sought to modify or terminate the order in state court, but was unsuccessful for various reasons. (That non-parent child custody order has been automatically converted in 2020 to a guardianship order in state court due to a new case numbering system.) She then sought to have the Puyallup Tribal Court (“Tribal Court”) give full faith and credit to that state court order in order for the Tribal Court to modify or terminate that order, over the objection of the child’s legal custodian, her sister (Appellee), but the Puyallup Tribal Court denied her request, resulting in this appeal. Among other findings made in the July 2 order denying the motion for reconsideration, the Court noted at p. 2 that Ms. Mayorga had still failed to provide it with a Thurston County Superior Court order denying her requested relief; all the Court had was her declaration to that effect.
STANDARD OF REVIEW
The Puyallup Tribal Code (PTC) 4.16.400(a), (c) and (d) provide that this Court can reverse or modify the Tribal Court’s order, or remand the matter back to the Tribal Court, only: where “there has been an abuse of discretion that prevented a party from receiving a fair trial”; “there has been error as to interpretation and/or application of the law by the Judge”; or the “decision is contrary to the law and evidence.” In re Welfare of A.C. and D.Z.C., 17 NICS App. 28, 30 (Puyallup Tribal Ct. App. 2019).
DISCUSSION
Appellant’s two arguments on appeal are that: 1) the Tribal Court abused its discretion by refusing to recognize the state court order under the Full Faith and Credit Clause of the United States Constitution; and 2) erred as to interpretation and/or application of the law. As a result of the above, she further argues, Appellant “is prevented from being heard and receiving a fair outcome.” Appellant’s Opening Brief, p. 5.1
The term “abuse of discretion” is not defined by the Puyallup Tribal Code. That phrase is used only a handful of times in the entire Code: once, in PTC 4.16.400(a)(as noted above), and in non-applicable Chapters 2.08, 12.12. and 15.16.
There is some Puyallup tribal case law interpreting that phrase. With respect to the Tribal Court’s discretion when it comes to the admissibility of evidence, we held in In re Welfare of A.C. and D.Z.C., supra at 36: “The factual review undertaken by an appellate court is deferential to the trial court, and requires review of the evidence in ‘the light most favorable to the party who prevailed in the highest forum that exercised fact finding authority.’”
With respect to the Tribal Court’s interpretations and applications of law, which Appellant claims resulted in error(s) here under PTC 4.16.400(c), we have held:
The Puyallup Tribal Code does not address whether this court is to give any deference to the trial court’s interpretation of the law. In the absence of a court rule or tribal law, we look to persuasive and well-reasoned decisions from other jurisdictions for guidance. Skokomish Indian Tribe v. Cultee, 8 NICS App 68, 70 (Skokomish Tribal Ct. App. 2008). The interpretation of a statute is a question of law that appellate courts review de novo under an error of law standard. Id. citing, Jeldness v. Pearce, 30 F.3d 1220, 1222 (9th Cir. 1994); Muckleshoot Indian Tribe v. Washington Dept. of Ecology, 112 Wn.App. 712, 720, 50 P.3d 668 (2002).
In the Welfare of Five Indian Minors, 9 NICS App. 61, 69 (Puyallup Children’s Ct. App. 2010).
In Davis v. Tulalip Tribes, 5 NICS App. 11, 14 (Tulalip Tribal Ct. App. 1997), that Court held:
When reviewing the findings of fact of the lower court, this Court must find some abuse of discretion on the part of the judge before we may disturb the lower court order. An abuse of discretion does not exist if the findings of the judge are supported by substantial evidence. Hoopa Valley Indian Housing Authority v. Gerstner, 3 NICS App. 250, 263 (Hoopa 1993). Substantial evidence is “evidence which would convince an unprejudiced, thinking mind of the truth of a declared premise.” Lower Elwha v. Elofson, 4 NICS App. 99 (Lower Elwha 1996), citing Freeburg v. Seattle, 71 Wash. App. 367, 859 P.2d 610 (1993).
This factual review is deferential. It requires us to view the evidence and the reasonable inferences drawn therefrom in “the light most favorable to the party who prevailed in the highest forum that exercised fact finding authority.” Elofson, NICS 99, 103 (Lower Elwha 1996) (citing Freeburg, 71 Wash. App. at 371)
“While courts have defined ‘abuse of discretion’ in several ways, there is a general agreement that a court abuses its discretion when it acts unreasonably or exercises unsound judgment in the exercise of its discretion.” Charles v. Swinomish, 22 NICS 1, 4 (Swinomish Tribal Ct. App. 2024)(citations omitted).
In order for this Court of Appeals to reverse or modify the order on appeal, or remand the matter back to the Tribal Court, PTC 4.16.400(a) requires that the alleged abuse of discretion prevented the aggrieved party from “receiving a fair trial.” Subsection (c) requires an alleged error as to interpretation and/or application of the law by the Judge. But not every error is appealable or reversible. For example, we have concluded previously that the alleged error should have “the potential to impact the outcome of the hearing” to be reversible error. In re Lauren Brown, 9 NICS 15, 19 (Puyallup Tribal Ct. App. 2009).
Here, the Tribal Court had discretion to do four things had it granted full faith and credit of the state court order and then proceeded further: do nothing more, enforce some provision(s) of the state court order, modify it, or terminate it. When Appellant initially brought this matter to the Tribal Court, it was for the express purposes of having the Tribal Court modify or terminate the state court order. That was the “narrow issue” before the Court. Order on Motion, p. 1. (Appellant conceded at oral argument that she later added “enforcement” of the child visitation provisions of the state court order when she filed her motion for reconsideration, but we conclude that issue was raised for the first time after the June 21, 2024 order now on appeal was entered and too late for us to consider on appeal here. Therefore, we offer no opinion as to whether the Tribal Court could or should have granted full faith and credit for the sole purpose of enforcing the visitation provisions of the state court order, resulting in a Tribal Court order that did not compete or conflict with the state court order, because Appellant never asked the Tribal Court to do so before it entered the order that is on appeal here.)
Appellant also seems to be arguing that once the Tribal Court had conducted a hearing and accorded full faith and credit to the state court order, it then had to either modify or terminate it. But the Tribal Court was not required to do either. It had broad discretion as to how to proceed. Appellant has cited no Puyallup tribal statute or case law that makes either action mandatory by the Tribal Court.
In its order, entered June 21, denying the relief sought by Appellant, the Tribal Court stated that the “narrow issue before the Court is whether it should assert jurisdiction—over the objection of one party—to recognize a facially valid child custody judgment of a foreign jurisdiction, for the purpose of modification or termination.” Order on Motion, p. 1.
In denying Appellant her requested relief of according full faith and credit for the purposes of modifying or terminating the state court order, the Tribal Court noted that the state court has had jurisdiction over the child and this matter for over a decade. June 20 Order on Motion (entered June 21), p. 4. The Tribal Court concluded that it would take no further action without an order from the Thurston County Superior Court transferring jurisdiction to the Puyallup Tribal Court or explicitly denying her “the opportunity for relief she would otherwise have under Puyallup Tribal law.” July 2 Order on Motion, p. 3, #19.
Had the Tribal Court done what Appellant requested, this would not have deprived the state court of its jurisdiction over this matter or the Puyallup child. If the Tribal Court asserted jurisdiction for the sole purposes of modifying or terminating the state court order, while the state court retained its jurisdiction, this could obviously result in competing and conflicting court orders. The Tribal Court was trying to prevent this. Further, Appellant hadn’t shown a substantial change in circumstances or that it’s not in the child’s best interest for the case to remain in state court.
In its July 2 order denying Appellant’s motion for reconsideration, p. 3, Finding #15, the Tribal Court found that Ms. Mayorga provided “no citation to clear Puyallup Tribal law or applicable federal law that allows or requires this Court to grant comity to a facially valid third-party custody order for the purpose of modification or termination.” Rather, Appellant, in her Petition for Comity, and in her briefs to this Court, cites sections of the United States Constitution and the Revised Code of Washington (RCW) to support her requested relief.
Appellant failed to cite existing and applicable Puyallup Tribal law that governs this exact situation of dual tribal and state court jurisdiction over child custody proceedings concerning a Puyallup Indian child, the granting of full faith and credit to foreign child custody orders, and any subsequent motions to have the state court order adopted or modified (or terminated).
PTC 7.04.090 states: “The Children’s Court may accept or decline, under the procedures set forth in this Code, transfers of child welfare cases from other federal, state or tribal courts.” This then triggers involvement of the ICW Liaison, and the Tribal Attorney, who then assist the Tribal Court, acting as the Children’s Court, in exercising its discretion whether to accept a transfer from, for example, the Thurston County Superior Court.
PTC 7.04.100:
(e) Acceptance of Transfer. The Court will not accept a transfer from state court unless:
(1) A parent or Indian custodian’s petition to state court for transfer is granted; or
(2) The Tribe’s petition to state court for transfer is granted; and
(3) The ICW Liaison’s pretransfer report recommends the acceptance of transfer; and
(4) The Tribal Attorney recommends acceptance.
Subsection (f)(1) then provides: “Upon acceptance of a transfer from state court, the Court shall grant full faith and credit to the state court order at any stage of the proceedings, and the child shall be a ward of the Court.” (Emphasis added.) See also, PTC 7.04.100(f)(2).
See also, PTC 7.24.120 regarding Puyallup Tribal law procedures for granting full faith and credit to, and recognition of, foreign child custody-related orders.
So, whether we review the order on appeal using the “abuse of discretion” consideration, or de novo, we conclude that the Tribal Court did not abuse its discretion. It did not act unreasonably or exercise unsound judgment in the exercise of its discretion not to grant full faith and credit for the purposes of modifying or terminating the state court order. Although a reviewing Court might take a different approach in that exercise of discretion, we will not substitute our judgment for that of the Tribal Court’s if it acts reasonably and with sound judgment—as it did here.
Nor do we find error as to any interpretation and/or application of Puyallup Tribal law by the Tribal Court.
Under the circumstances in this case, at this point in time, it was appropriate for the Tribal Court to direct the parties to go back to the court that currently exercises jurisdiction in this matter and over the child: the Thurston County Superior Court. Once there, Appellant can request the relief she seeks of modifying or terminating the state court order, or having its child visitation provisions enforced; or seek a transfer of jurisdiction to the Puyallup Tribal Court whereby the state court no longer retains jurisdiction, and where there is no potential for dual competing and conflicting state court and Tribal Court orders.
CONCLUSION AND ORDER
PTC 4.16.390 states, in relevant part, that the Court of Appeals may affirm, reverse or modify the Tribal Court decision, or remand the matter for further proceedings or retrial in accordance with its directions.
Based upon the above reasons, we AFFIRM the Puyallup Tribal Court’s Order on Motion entered June 21, 2024.
Appellant argues that the Tribal Court abused its discretion when it failed to give full faith and credit to the state court order, then goes on to argue that the Court has no discretion whatsoever as to according full faith and credit. Appellant’s Opening Brief, p. 2.