In re A.M.K.

9 Am. Tribal Law 191
CourtNavajo Nation Supreme Court
DecidedOctober 8, 2010
DocketNo. SC-CV-38-10
StatusPublished
Cited by8 cases

This text of 9 Am. Tribal Law 191 (In re A.M.K.) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.M.K., 9 Am. Tribal Law 191 (navajo 2010).

Opinion

OPINION

Maternal grandparents appeal from a Nav. R. Civ. P. Rule 12(b)(6) order of dismissal of a guardianship petition con-ceming A.M.K., who was a newborn infant when the guardianship petition was filed [195]*195and eleven months old by the time of the dismissal. We REVERSE.

I

A.M.K. is the child of Lianne Kayaani (Mother), an enrolled member of the Navajo Nation, and Colin Wylie (Father/Ap-pellee), a non-Indian citizen of Canada. Mother and Appellee were married at the time of the child’s conception but were separated at the time of her birth. Two days before the child’s birth on July 5, 2009, Mother had filed for and obtained an Emergency Protection Order against Ap-pellee, alleging verbal and emotional abuse. Mother passed away at childbirth and the protection order expired without the matter being heard.

Immediately following Mother’s passing, maternal grandparents Leo Kayaani and Bernice Mitchell (Appellants), enrolled members of the Navajo Nation, filed a Petition for a Domestic Abuse Protection Order (DAPO) against Appellee on behalf of A.M.K. and one other minor daughter of Mother1 on July 6, 2009 under docket no. C H-FC-723-09. On July 7, 2009, Appellants further filed a Petition for Guardianship of A.M.K together with motions for immediate temporary custody and for a social services investigation under docket no. CH-FC-728-09. Both petitions were filed pro se on short forms provided by the Chinle court. All motions in both actions were granted ex parte pending hearing, and Appellants took custody of A.M.K.

On July 13, 2009, a Notice of Hearing was issued and served on the parties (including Social Services), setting a Pretrial Conference for September 9, 2009.

On July 15, 2009 after retaining counsel, Appellee filed, inter alia, a Petition for a Writ of Habeas Corpus which was docketed under CH-FC-728-09. On July 20, 2009 a habeas hearing was held, during which the court verbally consolidated the DAPO and guardianship matters and took testimony only on the issue of illegal custodial detention. Appellants’ newly retained counsel requested a continuance, but was denied. At the close of the hearing, the court verbally dismissed the DAPO action and ordered A.M.K. returned to Father. On July 23, 2009, the Court issued a written Order Granting Respondent Wylie’s Request for Return of Minor Child in which the court dismissed the DAPO action, vacated all related protection orders, denied the writ, vested legal and physical custody of the child in Father, ordered that “the guardianship action will not be dismissed at this time,” and promised a future more detailed decision. On July 29, Appellee moved to dismiss the guardianship matter. On September 11, 2009, the Court issued its Final Order Giving Legal Custody of Minor Child to Respondent Wylie explaining its dismissal of the DAPO action and grant of custody of the child to Appellee but took no action on Appellee’s motion to dismiss the guardianship. Appellants did not appeal the DAPO dismissal.

On August 20, 2009 Appellants retained new counsel who proceeded to file a flurry of motions in the guardianship matter, including motions for continuance of the pretrial conference, to vacate custody in Appellee, reinstate temporary custody in Appellants, for appointment of a guardian ad litem for A.M.K. and further submitted Mother’s medical records as exhibits. On October 2, 2009, Appellee filed his oppositions to Appellants motions.

On November 16, 2009, Appellants requested reinstatement of the guardianship action to the court’s active calendar after informing the Family Court that A.M.K. [196]*196had been taken to Canada. On November 20, 2009, following Appellee’s renewed filing of a Rule 12(b)(6) motion to dismiss, the court denied Appellants’ motion to vacate custody and ordered the submission of briefs specifically on why the court should not dismiss the case for failure to state a claim. On December 7, 2009, Ap-pellee filed his brief and on December 14, 2009 Appellants filed their brief with exhibits. Six months later, without a hearing, on June 8, 2010, the Family Court issued an Order to Dismiss Petition for Guardianship.

Appellants timely appeal. The opening brief, response and reply were all timely filed. On July 29, 2010, Appellants filed a Notice of Non-Filing of Transcript, informing this Court that a transcript is not necessary in this appeal. On September 2, 2010, Appellee filed a Notice of Need for Transcript. Oral argument was held on September 17, 2010 at the Chinle School District # 24 Board Room.

A.M.K. is presently fifteen months old and has resided in Canada for more than one year. As of the oral argument, no visitation has taken place between A.M.K. and maternal grandparents.

II

This Court will address two preliminary matters before turning to the fundamental issues. First, disposition of Appellee’s Notice of Need for Transcript filed more than 30 days following service of Appellants’ Notice of Non<-Filing of Transcript. Second, the scope of this appeal.

Transcript. The parties differ on the necessity for a transcript and the responsibilities of each party pursuant to Rule 9(b) of the Navajo Rules of Civil Appellate Procedure and our opinion in Tso v. Navajo Housing Authority, No. SC-CV-20-06, 6 Am. Tribal Law 793, 795 (Nav.Sup.Ct. August 16, 2006). At oral argument, the Court asked the parties if they would object if, in lieu of submission of the transcript, the Court listen to taped recordings of the July 20, 2009 habeas hearing as deemed necessary. The parties both agreed they had no objection, and the transcript issue was settled. We thereby need not address the procedural issues raised.

Scope of the Appeal. The scope of this appeal is more difficult to address. The only hearing in this matter was the July 20, 2009 habeas hearing following which the DAPO matter was dismissed and custody of A.M.K. given to Appellee. We note that both the DAPO and guardianship matters were verbally consolidated at that hearing. We further note that one of three causes raised in the guardianship petition is the existence of a restraining order. Finally, we note that Appellants did not appeal the DAPO dismissal. Ap-pellee argues that Appellants’ failure to appeal the DAPO dismissal and grant of custody is fatal to the appeal of the guardianship dismissal. We disagree. However, we believe that Appellants’ failure to appeal those matters significantly impacts the scope of this appeal.

Because the guardianship petition alleges “Restraining order taken against (Father) by Mother” as a custody claim, Appellants’ failure to appeal the DAPO dismissal results in waiver and cannot confer subject matter jurisdiction to this Court over the domestic abuse claim in the guardianship petition. See Mitchell v. Davis, 8 Nav. R. 542, 545, 5 Am. Tribal Law 434 (Nav.Sup.Ct.2004) (Court lacks jurisdiction over merits of final order that is untimely appealed). For whatever reason Appellants chose not to appeal the DAPO final order, the result is this appeal may not include arguments to overturn the DAPO dismissal and transfer custody on [197]*197the basis of the domestic abuse allegations that were part of that proceeding.

This Court has struggled to find some basis that would permit us to revisit the DAPO matter in keeping with our role as guardian of the matter before us, particularly when this matter concerns a child. See Smith v.

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Bluebook (online)
9 Am. Tribal Law 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-amk-navajo-2010.