FORT
PECK TRIBAL COURT OF APPEALS
FORT PECK INDIAN RESERVATION
ASSINIBOINE AND SIOUX TRIBES
POPLAR, MONTANA
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In re: the Matter of
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Appeal No. 419 |
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ORDERDENYING
PETITION FOR REVIEW
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This matter arises from the dismissal of a PETITION seeking a declaration from the Tribal Court that B.R.Y., a Minor Indian Child, is neglected, abused and/or dependent under Title IX CCOJ 2000 §501. The Petition was filed on November 7, 2003, by Imogene A. DeMarrias, Tribal Prosecutor and was heard on December 9, 2003, The Honorable John D. Christian, presiding. A timely Petition for Review was filed on December 9, 2003, by Tribal Civil Prosecutor Joseph M. Raffiani. For the reasons stated below, the Tribal Court's dismissal is affirmed.
THE PETITION
The Petition to have the youth declared neglected, abused and/or dependent under §501 1 alleges that Community Social Worker Merrill Hansen was called to the home of B.R.Y. by the 'on-duty' Social Worker Sandi Calk regarding a 10 year old who was in need of placement. Tribal Police Officers informed Hansen that the youth was in need of placement because five (5) intoxicated adults had been arrested in the residence.
Upon arrival at the home, Hansen found the youth asleep on the couch. Tribal Officers on the scene asked Hansen to inspect and 'witness' the condition of the home. After finding the larger bedroom clean with the bed made, Hansen proceeded to the other bedrooms. He observed "dirty floors, clothing stacked high on the floors", "holes in the walls", "bathroom tub, sink, and toilet (appearing) as if they had never been cleaned", cockroaches in the kitchen, "food all over the stove, cupboards, floor and table", "three cases of beer" under the table, food and a bottle of whiskey in the refrigerator. Tribal Police Officers photographed the condition of the home.
After failing to find a kinship placement, Hansen placed the youth in a Fort Peck Tribal foster home in Poplar, MT. Attached and incorporated into the Petition were Hansen's affidavit, the arrest narrative and photos taken by Tribal Officers.
THE TRIBAL COURT'S ORDER OF DISMISSAL
The matter was brought on for a fact finding hearing 2 on December 9, 2003, at which, Hansen, Tribal Civil Prosecutor Joseph M. Raffiani and the biological parents of B.R.Y. appeared. In its order dismissing the Petition, the Tribal Court, after reviewing "the file and recommendations in the form of testimony and written/verbal reports submitted in reference to (the) matter" found that the youth was not abused, neglected, abandoned or dependent under the definitions set forth in Title IX CCOJ 2000 §102 3.
In support of the Court's finding, the Court took judicial notice that "untidy and (cockroach) infested" homes were commonplace on the reservation and further, that the parents' principal witness testified that B.R.Y.'s parents had made arrangements with her to baby sit the youth. The Court also cited the parents' closing statement regarding their arrival at the home "just before the arrival of law enforcement".
THE PETITION FOR REVIEW
In its abbreviated Petition, the Fort Peck Tribes allege that the Tribal Court erred in dismissing the Tribes' petition because the respondents "present(ed) no evidence to refute the evidence introduced to support the major claims of the Tribes". The Tribes further allege that returning the youth to the biological parents' home "would place the child at substantial risk".
The Tribes' allegations fail for two reasons. First, the burden of proof in prosecuting a Petition pursuant to §501 is governed by §505 which requires that evidence supporting the Petition must be "clear and convincing". §505 reads in part: "…(d) Order. If the Court shall find, at the conclusion of the fact-finding hearing, that there is clear and convincing evidence that the youth is abused, neglected, abandoned or dependent, the Court at that time shall determine the proper disposition of the youth under Section 506 of this Title. If clear and convincing evidence does not exist, the petition shall be dismissed and the youth shall be returned to the custody of the parent(s), legal guardian or custodian." Thus, if the Prosecutor does not present such "clear and convincing" evidence to support the petition, the Court is obliged to dismiss the Petition. §102m defines "clear and convincing": "…(m) Clear and Convincing Evidence. The measure or degree of proof which will produce in the mind of the trier of fact more than a mere preponderance, but not to the extent of such certainty as required by beyond a reasonable doubt."
Secondly, the Tribal Prosecutor alleges that the parents did not present any rebuttal evidence. However, the Court's order refutes this allegation by reciting that the "respondents' principal witness" testified. (See paragraph 1a, page 1 of the Court's Order.) Nonetheless, the burden is on the Prosecutor, in the first instance, to present such clear and convincing evidence supporting the allegations. If such evidence is not forthcoming, the respondents are not obliged to present any evidence whatsoever.
This Court will not disturb a Tribal Court factual finding if such findings are supported by substantial evidence. Title II CCOJ 2000 §202. Nor, in the absence of an abuse of discretion will we disturb a discretionary ruling by the Tribal Court or substitute our judgment for such factual findings. In the Matter of D.R.B. FPCOA #327 (2001). We find no such abuse of discretion here. Judge Christian heard and saw the witnesses and considered the testimony and evidence presented. Based on the testimony and evidence presented, he concluded that the Tribes had not met the requisite burden of proof of clear and convincing. It is not the province of this Court to substitute our judgment for the judgment of the trier of fact.
IT IS NOW THEREFOR THE ORDER OF THIS COURT:
The Order dismissing the Petition is affirmed.
Dated: December 10, 2003
FOR THE FORT PECK COURT OF APPEALS
BY____________________________________
Gary P. Sullivan
Chief Justice
1 Sec. 501. Petitions. Any person who has taken a youth into custody pursuant to Sections 401 and 402 shall, submit to the Tribal Court a petition to have any youth subject to the jurisdiction of the Court declared an abused, neglected, abandoned or dependent youth. Such petition shall include (a) the name, address and telephone number of the petitioner, the youth and, if known, the youth's parent(s), legal guardian or custodian; (b) the reason(s) why the petitioner believes the youth is abused, neglected, abandoned or dependent; (c) supporting credible evidence, including but not limited to; affidavits, reports or written statements from social workers, law enforcement officers, juvenile officers, other child care professionals, other relatives of the youth or members of the community.
2 The Court's order recites that the hearing was held pursuant to Title IX CCOJ §509. §509 presupposes an initial hearing, however, the record is unclear as to whether the December 9th hearing was the initial hearing or a review hearing. The full text of §509 follows: