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FORT PECK COURT OF APPEALS
ASSINIBOINE AND SIOUX TRIBES
FORT PECK INDIAN RESERVATION
POPLAR, MONTANA
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    THIS APPEAL is from a Custody Order issued June 19, 1989 which awarded joint custody to the parents. Mother was granted custody during school and father during summer months. The noncustodial parent was granted visitation on 24 hour notice. The Honorable A.T. Stafne, Associate Judge presided.

    FOR APPELLANT: Melissa G. Schauer, Lay Advocate, Box 214, Wolf Point, MT 59201

    FOR APPELLEE: Carol C. Johns, Esq., Box 995, Wolf Point, MT 59201

    CIVIL: AWARDING JOINT CUSTODY TO THE PARENTS WAS A FACTUAL DETERMINATION NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; THE DENIAL BY A PARENT THE OTHER PARENT’S VISITATION RIGHTS IS NOT IN THE BEST INTERESTS OF THE CHILDREN; AND WHERE AN AWARD OF JOINT OR SEPARATE CUSTODY TO THE PARENTS IS NOT IN THE BEST INTERESTS OF THE CHILDREN, THE PREFERENCE UNDER THE CCOJ AND INDIAN CUSTOM IS AN AWARD OF CUSTODY (JOINT OR SEPARATE) TO THE GRANDPARENTS.

    Argued:     9/15/89;            Rehearing:     12/27/89;            Decided:     1/8/90

    OPINION by Arnie A. Hove, Chief Justice, joined by Gary James Melbourne and Floyd G. Azure, Associate Justices.

    HELD: THE PATERNAL AND MATERNAL GRANDPARENTS ARE AWARDED CUSTODY OF THE CHILDREN JOINTLY AND EQUALLY AND EACH PARENT IS TO CONTRIBUTE TO THE FINANCIAL SUPPORT OF THE CHILDREN. THE PARENTS ARE TO RECEIVE REASONABLE VISITATION UNDER THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT DATED FEBRUARY 1, 1990 ATTACHED HERETO AND BY THIS REFERENCE INCORPORATED HEREWITH.

FACTS:

    R.F. and J.F. are the children of Appellant Joan Clampitt (hereinafter referred to as mother) and Appellee Roger Flynn, Sr. (hereinafter referred to as father). Both children and both parents are enrolled members of the Fort Peck Tribes. R.F. was born April 25, 1981 and J.F. was born on June 25, 1984.
    
    Mother and father were never married. They lived together off and on over a period of about ten (10) years. The parties separated in 1987. On September 8, 1987, mother petitioned the Fort Peck Juvenile Court for custody of the children. On January 19, 1988, Fort Peck Juvenile Judge Thomas McAnally granted custody of the children to mother subject to weekend visitation by father. In 1987, mother and the children moved off the Fort Peck Indian Reservation to Nashua, Montana where she has resided during the period in question.

    In 1987 and 1988, the Valley County Department of Family Services (hereinafter referred to as Department) received reports mother physically and emotionally abused and neglected of the children. Some of the reports were substantiated. Mother agreed to cooperate with the Department’s recommendations and accept Department services to improve the children’s home environment. Mother did not follow through with appointments or recommendations.

    In January, 1989, the Department received new reports of mothers drinking and physical abuse of one of the children. Upon investigation, the reports were substantiated. The Department and mother agreed that the child being abused should be placed with the maternal grandparents.

    On February 1, 1989, the Department placed both children in foster care. On February 3, 1989, the children were removed from foster care and placed with their maternal grandparents. The Department notified Mr. Ron Arneson, Special Prosecutor for the Fort Peck Tribal Court of the case. The Tribe’s assumed jurisdiction and the Department cooperated by filing their Petition in the Fort Peck Tribal Court. The Department also provided investigative and support services.

    On February 6, 1989, the Department’s Petition was filed in Tribal Court. An initial hearing was held before Judge Gourneau within 72 hours of the filing of the petition. Father contends the hearing was not held sooner because the Tribal Court was closed due to cold weather. At the hearing, the Tribal Court found probable cause to believe the children abused or neglected and ordered the children were to remain wards of the Court. The Tribal Court also placed the children with father subject to weekend visitation by mother. The Tribal Court also ordered home studies and scheduled a review hearing in 30 days.

    On March 30, 1989 and more than 30 days later, a fact-finding hearing was held before Judge Boyd. Based on the testimony of the parents, their families, and Billie Brownlee with the Department and the home studies and reports in the court file, the Tribal Court determined additional evidence was necessary before a final disposition of the case could be made.

    A Temporary Court Order was issued which continued the children’s status as wards of the Court. The Tribal Court also ordered the Montana Department of Family Services have care, control, and supervision of the children and continued the placement of the children with their father with visitation granted mother as worked out by the mother and father. The Tribal Court also ordered the parties to obtain drug and alcohol evaluations and an evaluation of the children at the Eastern Montana Mental Health Center and scheduled a final dispositional hearing.

    On or about April 26, 1989, mother removed the children from the custody of their father under the pretext of exercising visitation. Mother then refused to return the children to their father which was in violation of the temporary order.

    The parties both submitted to alcohol and drug evaluations at Spotted Bull Treatment Center, however, only mother’s results were reported to the Court. Also, the children were evaluated at the Eastern Montana Mental Health Center, and a Psychodiagnostic Report was submitted to the Court on May 2, 1989.

    On June 15, 1989, a final dispositional hearing was held in the Wolf Point Tribal Court before Judge Stafne. Mother made a motion to dismiss the Department’s Petition which was denied and the hearing proceeded.

    At the hearing, the Tribal Court heard the testimony of the parents, and considered the evidence in the record, including the Department’s Reports to the Court, mother’s drug and alcohol evaluation, the Psychodiagnostic Evaluation of the children, and medical records submitted by mother. From this evidence, the Tribal Court found clear and convincing evidence of mother’s abuse and neglect of the children.

    The Tribal Court, in determining the disposition in the best interests of the children, awarded joint custody to the parents with mother having custody during the school months and father having custody during the summer months. The non-custodial parent was granted visitation subject to visitation upon 24 hours notice. The Tribal Court further ordered that the children remain wards of the Court, a review by the social services department in Nevada if mother should move to that state, and a review hearing be held on September 14, 1989.

    On June 15, 1989, mother’s Notice of Appeal was filed. On June 16, 1989, mother’s Motion for Stay of Judgment was granted. On June 19, 1989, the Tribal Court issued its written order reflecting the June 15, 1989 verbal order. During the pendency of the appeal, mother had custody of the children. Before and during the pendency of the appeal which included a portion of the summer months, mother refused father custody or visitation with his children. In the Notice of Appeal mother justified her actions and set forth a reason for the appeal when stating, "At the time of the hearing, the Department of Social Services were not present and did not make recommendations to the Court; as they had informed the Petitioner to keep her children before this matter was heard, although there was a temporary Court Order in place."

    In the Notice of Appeal, mother presented three other reasons for her appeal. The reasons presented were as follows:

        "1. Improper Procedure

        "2. Lack of Evidence/Witnesses

        "3. Irregularity incurred contrary to the C.C.O.J."

    In Appellee Roger Flynn’s Brief, five issues which addressed the above were set forth and discussed. Father’s five (5) issues were as follows:

1. DID THE COURT ERR IN DENYING APPELLANT’S MOTION TO DISMISS?

2. WAS THE INITIAL HEARING UNTIMELY AND THUS BASIS FOR REVERSAL?

3. WAS THERE SUFFICIENT EVIDENCE BEFORE THE COURT TO FIND PROBABLE CAUSE OF ABUSE AND/OR NEGLECT OF THE CHILDREN, AND THUS JUSTIFY TEMPORARY PLACEMENT WITH THEIR FATHER?

4. WAS THERE SUFFICIENT EVIDENCE BEFORE THE COURT TO FIND CLEAR AND CONVINCING EVIDENCE OR ABUSE AND/OR NEGLECT OF THE CHILDREN BY APPELLANT?

5. DID THE COURT HAVE THE AUTHORITY TO AWARD JOINT CUSTODY OF THE CHILDREN TO THE PARENTS?

    On September 15, 1989, oral arguments were heard. Mother appeared with her lay counselor and father appeared with his attorney. After hearing from both parties, this Court made a temporary order to remain in effect while a decision was pending. The temporary order was as follows:

1. A transcript of the March 30, 1989, hearing regarding the custody of the above-named minor children was to be produced for the Court within ten days.

2. Appellee Roger Flynn’s alcohol and drug evaluation report was to be produced for the Court record.

3. Custody of the minor children was to remain with the Appellant mother.

4. Appellee Roger Flynn was to have visitation with the minor children on weekends.

5. The custody of the minor children was to be monitored bi-weekly by Mary Left Hand of the BIA Social Services, with a bi-weekly report of the mother’s caretaking to be presented the Court.

    The above order was issued verbally on September 15, 1989. No written order was issued. Violation of the terms of this order and additional acts of abuse and neglect by mother are alleged in father’s Motion for Reconsideration and supporting affidavit filed on November 15, 1989. In the motion, father requests a rehearing. On November 22, 1989, mother filed her Response to father’s motion and supporting affidavit. Based on the motion and affidavit and response thereto, this Court granted father’s request and additional oral arguments were scheduled for and heard on January 8, 1990.

    This opinion will address father’s five (5) issues set forth above.

I.

DID THE COURT ERR IN DENYING APPELLANT’S MOTION TO DISMISS?

    The Tribal Court did not err in denying mother’s motion to dismiss. The basis for mother’s motion is that she claims the children were placed in foster care for more than forty-eight (48) hours without a court order and the Department violated Tribal law by failing to file a petition within twenty-four (24) hours of placement of the children. Father contends mother has misstated the facts.

    There is no transcript of the March 30, 1989 hearing in which this Court is able to decide which facts were established by testimony, however, there are several facts which were not in dispute. The children were placed in foster care on February 1, 1989 and on February 3, 1989 they were removed from foster care and placed with their maternal grandparents.

    In discussing the facts not in dispute, the children and parents are enrolled members of the Tribes and the children were residing off of the Fort Peck Reservation. There exists an Agreement Between Department of Family Services, Bureau of Indian Affairs, and the Assiniboine and Sioux Tribes of the Fort Peck Reservation (each party hereinafter referred to as Department, BIA and Tribes, respectively). This agreement was dated October 29, 1987 and approved by Attorney General Mike Greely November 4, 1987.

    The agreement is a cooperative effort between the Department, BIA and Tribes for the providing of services and foster care maintenance payments to IV-E eligible children residing or domiciled on the Fort Peck Indian Reservation. The agreement specifically provides that, ". . . If, pending the eligibility determination, the Department determines that removal from the child’s current placement is necessary to protect the child, it shall follow the procedures set forth in Chapters 2 and 3 of Title V Tribes’ Comprehensive Code of Justice." (See page 3, paragraph D of Agreement). Therefore, the applicable portions of these chapters will be discussed in reviewing the procedures followed during the placement of the children.

Title V CCOJ 201(b) and (c) apply to this case and read:

(b) Any licensed physician, law enforcement officer, social worker, or tribal juvenile officer who has probable cause to believe a child is neglected or abused and will suffer physical or emotional harm if not immediately removed from the home may place the child in shelter care. Such child may be placed in a private home or temporary foster home or institution, but not in a facility where the child has sight or sound contact with alleged delinquents.

(c) In no event shall a child be kept in custody without a court order for more than forty eight (48) hours.

    On February 1, 1989, the Department placed the children who were believed to be abused and neglected in foster care which is permitted under V CCOJ 201(b). The children were kept in foster care (protective custody) until placed with the maternal grandparents. The record is not clear if the mother was living with the grandparents. A report submitted to the Tribal Court on February 3, 1989 by Randy Stow whose title reflects the mother had previously agreed with the placement of her children with the maternal grandparents.

    In determining whether the Department’s petition was properly wiled within statutory time constraints, V CCOJ 202 is applicable. This section reads as follows:

    Any law enforcement officer, licensed physician, tribal juvenile officer or social worker who takes a child into custody without a court hearing shall (a) immediately notify the Court and make a good faith effort to notify the parents of the child and (b) within twenty four (24) hours submit to the Court a petition under Section 301 of this Title. If the child is taken into custody on a weekend or holiday, the individual taking the child into custody shall have twenty four (24) hours from the start of a working week to file a petition in Court.

    In applying V CCOJ 202 to the facts not is dispute, the Department acted properly when it first filed the petition in State District Court. On February 3, 1989, the Department was and continued to be in compliance with V CCOJ 202 and the October 29, 1987 agreement. The Department was instructed by Mr. Arneson to file their petition in Tribal Court. The Department did so Monday, February 6, 1989, which was within 24 hours of the start of the working week.

    Father correctly asserts State jurisdiction was initially provided for in proceedings for foster care placement of Indian children not residing within the reservation of the children’s tribe. This jurisdiction is subject to transfer to Tribal Court upon the petition of a parent, custodian, or tribe pursuant to 25 U.S.C. 1911 of the Indian Child Welfare Act.

    When proceedings were commenced, the Department may not have been aware the children had been previously declared wards of the Fort Peck Tribal Courts. On February 3, 1989, the Department was instructed by Mr. Arneson to file its petition in Tribal Court and complied within 24 hours of the start of the working week as required by V CCOJ 202. This was a timely response to Mr. Arneson’s request and appropriate action by the Department under the agreement with the Tribes and the Indian Child Welfare Act. Therefore, the mother’s motion to dismiss was properly denied.

II.

WAS THE INITIAL HEARING UNTIMELY AND THUS BASIS FOR REVERSAL?

    The initial hearing held on February 9, 1989 was timely. This date was more than 48 hours after the children had been removed from the mother’s home on February 1, 1989, however, the children were not in what could be considered protective custody during the entire period.

    Title V CCOJ 303 establishes the time constraints for an initial hearing. This section reads in full as follows:

(a) After receiving a petition, the Court shall immediately schedule an initial hearing to be held immediately if possible and in all cases within forty eight (48) hours of the time a child is placed in protective custody and within seventy two (72) hours if the child is not in protective custody. The Court shall make all reasonable attempts to notify, by telephone or other means, the child and the child’s parents or guardian of the time and place of the initial hearing, and of the right of the parent, guardian, and child (a) to obtain counsel at their own expense, (b) to be present at the hearing, and (c) to testify, present documentary evidence, call witnesses, and ask questions of all witnesses. Prior to the initial hearing, the Court shall order that the child be interviewed by a juvenile officer, social worker, or other child care professional. The initial hearing shall be conducted informally and shall be closed to the public. If the Court determines that there is probable cause to believe that the child has been abused, neglected, abandoned or is a delinquent or status offender, the Court may temporarily order such disposition as is appropriate under Section 306(d) of this Title, pending a fact-finding hearing. Otherwise the case shall be dismissed. (Emphasis added).

    The children were in foster care which would be considered protective custody until February 3, 1989 and then they were placed with the maternal grandparents. The first placement of the children with the grandparents was on January 20, 1989 and mother had agreed to the same. On January 21, 1989, mother agreed to the continuation of the placement pending the completion of the investigation of the children’s legal status as wards of the Tribal Court.

    The children were placed with the maternal grandparents from February 3, 1989 until the filing of the petition. During the January investigation, the mother either instigated or agreed to this placement and its continuation. Mother has never contended placement with the grandparents was protective custody. The time in which the initial hearing is required to be held pursuant V CCOJ 303 is within seventy-two (72) hours after the filing of a petition.

    In conclusion, the petition was filed on February 6, 1989. On February 9, 1989, the initial hearing was held. The initial hearing was held within the required seventy-two (72) hours. Therefore, the initial hearing was timely and there is no basis for a reversal of the decision resulting therefrom.

III.

WAS THERE SUFFICIENT EVIDENCE BEFORE THE COURT TO FIND PROBABLE CAUSE OF ABUSE AND/OR NEGLECT OF THE CHILDREN, AND THUS JUSTIFY TEMPORARY PLACEMENT WITH THEIR FATHER?

    There was sufficient evidence before the Tribal Court to find probable cause of abuse and/or neglect of the children which justified temporary placement with their father.

    On February 9, 1989, the Tribal Court issued an order. In the order the Tribal Court determined it was in the best interest of the children to be placed in temporary custody with the father for thirty days. Although there was no transcript of the proceedings as required by I CCOJ 103, the Tribal Court file contained a Report to the Court by Billie Brownlee, SWII and a Report to the Court by Randy Stow, CSWII.

    Mother erroneously contends Randy Stow’s report was not properly before the Tribal Court. This report was required by V CCOJ 302(a). In reviewing the report, it contained information regarding an investigation of the mother’s previous abuse and neglect of the children. The report reflected abuse of at least one child by mother when she had been drinking. The report recommends placement of the children in a licensed foster home supervised by the Montana Department of Family Services.

    In conclusion, Randy Stow’s report was properly before the Tribal Court on February 9, 1989, and therefore, reviewable by this Court on appeal. This report established there was the probable cause required by V CCOJ 303(b) which justified temporary placement with the father.

IV.

WAS THERE SUFFICIENT EVIDENCE BEFORE THE COURT TO FIND CLEAR AND CONVINCING EVIDENCE OF ABUSE AND/OR NEGLECT OF THE CHILDREN BY APPELLANT?

    There was sufficient evidence before the tribal court to find clear and convincing evidence of abuse and/or neglect of the children by the mother from Randy Stow’s report in the court file.

    In support of the above, this Court refers to its discussion of issue no. III. In addition, this Court would point out that Randy Stow’s report reflects the child who was allegedly abused was interviewed and did have signs of physical abuse [abrasion on his neck (right side) and finger mark bruises on his right forearm] which the child indicated were caused by the mother when "mom was drunk on whiskey"]. Finally, the report reflects the mother denied the abuse but admitted the drinking.

    In conclusion, although no transcript of any proceeding was available, there was sufficient evidence before the court in the report to find clear and convincing evidence of abuse and/or neglect of the children by the mother.

V.

DID THE COURT HAVE THE AUTHORITY TO AWARD JOINT CUSTODY OF THE CHILDREN TO THE PARENTS?

    This Court has jurisdiction to review the February 9, 1989 disposition of the Tribal Court under V 306(d) (2) and the award of joint custody in the June 19, 1989 order. The Tribal Court had the authority to award custody of the children to the father on February 9, 1989 and joint custody of the children to the parents on June 19, 1989 because of the directive in Title V CCOJ 306(d) (1). This section reads as follows:

"The Court shall make such disposition as is in the best interest of the child."

In determining the best interests of an abused, neglected, or abandoned children, V CCOJ 306(d) (2) requires the Tribal Court to make one of five dispositions in a suggested order of preference. This section reads as follows:

    The Court shall order one of the following dispositions, listed in suggested order of preference:

    (i) to the custody of the parent or guardian subject to such counseling, treatment, or other services as are deemed necessary to keep the child in the home;

    (ii) to the custody of a person related by the blood or marriage to the child on or off the Reservation;

    (iii) to the custody of an approved Indian foster care home;

    (iv) to the custody of the Hope Ranch or other approved institution (sic) on the Reservation; or

    (v) to the custody of a non-Indian foster care home of institution on or off the Reservation, provided that such home or institution shall not be used for delinquent children as well.

    In the above, the preferred disposition is to place the child in the custody of the parent or guardian. The purpose of this disposition is to keep the family together.

    Mother argues placement of the children with the father when he did not file a petition was not appropriate. The placement of the children with the father on February 9, 1989 was appropriate and did not require father to file a petition. The Department had filed a petition and the Tribal Court made a disposition from the five suggested in V CCOJ 306(d) (2). Therefore, the Tribal Court’s disposition of February 9, 1989 was appropriate.

    In addressing whether the Tribal Court’s award of joint custody to the parents on June 19, 1989 was appropriate, this Court has the authority to review the custody order issued and affirm or modify the same under I CCOJ 202. This section reads preference. This section reads as follows:

in full as follows:

    The jurisdiction of the Court of Appeal shall extend to all appeals from final orders and judgments of the Tribal Court. The Court of Appeals shall review de novo all determinations of the Tribal Court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence. The Court of Appeals, or the Chief Justice alone, shall have jurisdiction:

    (a) to take all necessary steps to preserve and protect the jurisdiction of the Court;

    (b) during the pendency of any criminal appeal, to release the appellant on his/her own recognizance or on bail pursuant to Section 206(e) of this Code; and

    (c) to make any order appropriate to preserve the status quo or to protect any ultimate judgment of the Court of Appeals.

    It is this Court’s unanimous decision that awarding joint custody of the children to the parents is a factual determination not supported by substantial evidence presented at the June 19, 1989 hearing or in light of subsequent events.

    Based on the evidence and subsequent events, a joint custody award is not in the best interests of the children. First, the mother was investigated for abusing the children while having been drinking. Second, the mother was subsequently charged with negligent homicide. Third, there has been a continuing course of conduct by the mother and possibly the maternal grandparents in refusing father the right to exercise previously ordered visitation with the children. Finally, there appears to be reason for legitimate concern regarding past and continuing drug and alcohol abuse by both mother and father. Before concluding the discussion on this issue, this Court would like to address the mother’s unwarranted refusal of visitation to the father.

    In Bauer vs. Bauer, Appeal No. 059 (April 12, 1989) , this Court addressed a parent’s refusing the other visitation. The Tribal code does not specifically address this type of conduct and an appropriate remedy, therefore, this Court turned to Montana law for guidance. The CCOJ in the Applicable Laws section at IV CCOJ 501(d) permits this Court to look to Montana law since the custody dispute is occurring within Montana.

    In Bauer, this Court applied the factors in Section 40-4-212, MCA. This section contains seven (7) factors for determining the "best interest of the child" which read as follows:

    The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:

(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to his home, school, and community;

(5) the mental and physical health of all individuals involved;

(6) physical abuse or threat of physical abuse by one parent against the other parent or the child; and

(7) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent."

    In Bauer, this Court determined the application of these factors to be appropriate for guidance since they were consistent with the factors in VT CCOJ 304(b) which are to be applied by the Tribal Court to determine what custody award would be in the "best interests of the children". The factors in VT CCOJ 304(b) read as follows:

    "... In determining the best interests of the child, the Court shall consider the relative ability to (sic) the parents to provide adequate food, clothing, shelter, medical care, love and emotional support and day-to-day supervision. The Court shall also take into account the desires of the child. Difference in financial means alone shall not be the deciding factor."

    In Bauer, this Court also discussed Section 40-4-223(1) (b) MCA and determined it was appropriate to apply the same. This section reads in full as follows:

(1) In custody disputes involving both parents of a minor child, the court shall award custody according to the best interests of the child as set out in 40-4-212:

    (a) to both parents jointly; the court shall inquire whether a joint custody agreement was made knowingly and voluntarily; or

    (b) to either parent. In making an award to either parent, the court shall consider, along with the factors set our in 40-4-212, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent and may not prefer a parent as custodian because of the parent’s sex. (Emphasis Added).

    (2) In making an award, the court shall require the submission of a plan for the implementation of the custody order.

    (3) In making an award, the court shall state in its decision the reasons and factors considered in making the award.

    In Montana, the seven (7) factors in Section 40-4-212, MCA and Section 40-4-223(l)(b), MCA are applied before making a joint custody award. In Tribal Court, it would be appropriate to apply Section 40-4-223(1) (b) where a parent consistently denied the other parent the court ordered visitation and where the same is not addressed in the Tribal code. Such an application would be especially appropriate in the instant case in determining custody since it is not in the best interests of the children that mother continue to believe she can deny father his court ordered visitation.

    In this case, an award of joint custody or separate custody to these parents is not in the best interests of the children. This Court must determine what would be an appropriate disposition.

    Since an order of custody pursuant to (i) of V CCOJ 306(2) (d) has been determined not in the best interests of the children, paragraph (ii) must be applied next. Pursuant to V CCOJ 306(2) (d) (ii), the order of custody to a person related by blood is preferred and would be appropriate under the facts in this case. The person or persons related by blood who would best be able to care for the children must be determined. The only person or persons related by blood and taking any interest in this case were the maternal and paternal grandparents.

    In Big Talk vs. Big Talk, Appeal No. 090 (December 1, 1989), this Court determined that there existed an Indian custom that abused, abandoned and/or neglected children were usually raised by the grandparents and such an arrangement would be preferable under V CCOJ 306(2)(d). In Big Talk, the grandparents were awarded custody of the child of a single parent where the evidence established possible neglect and an abusive home situation.

    In the instant case, the grandparents would also appear to be best suited to care for the children because of both parents’ drug and alcohol abuse and at least one of the parent’s abuse and neglect of the children. In addition, the mother faces a possible sentence in a federal prison as a result of the present negligent homicide charges filed against her.

    In conclusion, the facts of this case do not support an award of joint custody to both or either of the parents since the same would not be in the best interests of the children. Therefore, this Court finds it appropriate to modify the June 19, 1989 order and award the children jointly to the grandparents under the Indian custom previously identified in Big Talk.

_____________________________________________________________________________________________

IT IS THE UNANIMOUS DECISION OF THIS COURT TO AWARD THE CUSTODY OF THE MINOR CHILDREN JOINTLY AND EQUALLY TO THE GRANDPARENTS. MOTHER AND FATHER ARE ORDERED TO PROVIDE SUPPORT FOR THE CHILDREN AND ARE ALLOWED TO EXERCISE VISITATION ACCORDING TO THEIR AGREEMENT DATED FEBRUARY 1, 1990. THIS OPINION INCORPORATES THE FEBRUARY 1, 1990 AGREEMENT THE PARTIES WERE DIRECTED TO PREPARE AND PRESENT TO THIS COURT.

THIS COURT HEREBY RETAINS JURISDICTION OVER THIS MATTER AND RESERVES THE RIGHT TO IMMEDIATELY MODIFY THIS ORDER WITHOUT FURTHER HEARINGS OR ARGUMENTS ON THE FAILURE OF EITHER SET OF GRANDPARENTS, MOTHER OR FATHER TO COMPLY WITH THIS ORDER AND AGREEMENT INCORPORATED HEREWITH.

   DATED the _____day of February, 1990.

BY THE COURT OF APPEALS:

__________________________
Arnie A. Hove, Chief Justice

__________________________
Gary James Melbourne, Associate Justice
   
__________________________
Floyd G. Azure, Associate Justice

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