--- Am. Tribal Law ----, 2024 WL 4040442 (Fort Peck C.A.)
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Fort Peck Court of Appeals.
In the MATTER OF: L.K.L.S. (XX/XX/XXXX) a minor Indian child.
CAUSE NO. AP 875
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FILED AUGUST 30, 2024
Appeal from the Fort Peck Tribal Court, Imogene Lilley, Presiding Judge.
Before E. Shanley, Chief Justice, and B.J. Jones and J. Grijalva, Associate Justices
ORDER REVERSING TRIBAL COURT JUDGMENT
BACKGROUND
¶ 1 This matter comes before the Fort Peck Court of Appeals on a petition for review of the Tribal Court’s April 3, 2024 decision granting permanent custody of L.K.L.S. to her birth mother, Tiar’e Little Head, and her birth father, Colton Last Star (Appellees).
¶ 2 Appellants Sandra and Alvin Little Head, L.K.L.S.’s maternal grandparents, who previously had legal custody of L.K.L.S., argue the Tribal Court violated tribal law in considering and ruling on Appellees’ petition, thereby rendering the Court’s custody order invalid.
¶ 3 Appellants’ appeal presents a mixed question of law and fact. We review questions of law de novo and factual determinations to see if they are supported by substantial evidence. See Tribes v. Dale and Reum, FPCOA Nos. 303a and 303b (2000).
ANALYSIS
¶ 4 On December 27, 2023, the Tribal Court awarded permanent custody of L.K.L.S. to Appellants pursuant to 10 CCOJ 304-A, which governs child custody decisions outside of divorce, legal separation and annulment. Section 304-A bars parties from filing an additional custody petition within six months of a judicial custody decision “absent a substantial change in circumstances.” The Tribal Court’s order explicitly cited section 304-A’s prohibition on additional custody petitions within six months. See ¶ 22.
¶ 5 On February 8, 2024, approximately five weeks after the Tribal Court’s December 27, 2023 judgment, Appellees filed a joint petition for custody. Seeking to avoid section 304-A’s bar on new petitions, Appellees alleged three changed circumstances: (1) Tiar’e Little Head, L.K.L.S.’s birth mother, was no longer attending college off-reservation; (2) Ms. Little Head now lives on the Fort Peck Reservation at Wolf Point: and (3) Ms. Little Head is currently employed on the Reservation.
¶ 6 On March 25, 2024, the Tribal Court held a fact-finding hearing, and on April 3, 2024, the Court issued an order granting permanent custody of L.K.L.S. to Appellees. Curiously, the Tribal Court did not address section 304-A’s prohibition on additional custody petitions within six months, nor did it find substantial circumstances had changed in the five weeks between the December 27, 2023 order granting custody to the Appellants and Appellees’ February 8, 2024 joint petition for custody.
¶ 7 Indeed, the Tribal Court made no Findings of Fact at all. Instead, it simply summarized the testimony of the parties and other witnesses. That failure violates section 304-A’s time bar and could be the basis for reversal by itself. That is especially true considering the Court’s description of Ms. Little Head’s own testimony that she returned to Wolf Point from college in March 2023, some nine months before the December 27, 2023 order granting custody to the Appellants, and also that she has been employed on the Reservation since June 2023. Thus, as Appellants argue, the allegedly changed circumstances occurred long before the Court’s initial custody order and cannot be the basis under section 304-A for reconsidering the order.
¶ 8 However, we recognize that the six-month time bar on new custody petitions in this case expires in less than three weeks. And we note that in just the last two years, L.K.L.S., who turns seven years old this July, has lived with her grandparents, her mother, and her father at various times. In its April 3, 2024 order, the Tribal Court concluded that granting custody to the mother and father pursuant to a mutually agreed Parenting Plan is in the child’s best interests. That conclusion is buttressed by the declaration of Tribal law that a parent has a fundamental right to parent their child, see 10 CCOJ 304-C, and Tribal precedent “consistently up[holding] a strong value on maintaining appropriate parent-child relationships,” see In Re the Custody of C.M.Y, FPCOA No. 143 (January 1992).
¶ 9 So, while the Tribal Court misapplied applicable law, we do not believe justice would be served by reversing its April 3, 2024 order. That would require taking the child from her mother and placing her back with her grandparents in the face of a strong likelihood that in three weeks custody proceedings would begin again and result in permanent placement with the mother (and father).
¶ 10 Hence, although we hold that the Tribal Court failed to comply with the clear requirements of Tribal law, we find the error does not warrant reversal and so we affirm the Court’s April 3, 2024 order.
SO ORDERED this 10th day of June, 2024.
All Citations
--- Am. Tribal Law ----, 2024 WL 4040442