The processes for the removal of child(ren) is outlined in this
Article.
A. Removal without a court order.
(1) Standard for removal without a court order. Removal of a child without
a court order must not occur unless:
(a)
The child is a protected child;
(b)
The child faces an imminent risk of substantial harm if not
immediately taken into protective custody;
(c)
It is contrary to the welfare of the child to remain in his
or her home; and
(d)
No reasonable alternative means of protecting the child from
harm other than immediate removal into protective custody are available
and delaying the removal to obtain a court order is not in the child's
best interest.
(2) Who may remove. It is strongly preferred that such removals be effectuated
jointly by the NHBP Tribal Police, NHBP SSU or its designees. If the
removal cannot be effectuated jointly, the removal can be performed
by either.
(3) Preparation and filing of motion to remove children. Upon removal
of child(ren), the SSU or its designee or Presenting Officer will
file notification of removal with the court and will prepare and file
a motion to remove children with the Tribal Court no later than the
next business day.
(a)
Notice to the parent(s), guardian, or custodian. The person
removing the child(ren) will make diligent efforts to immediately
notify the child(ren)'s parents, guardian, or custodian, of the
removal of the child(ren) and of the emergency removal hearing. Diligent
efforts may include personal, telephone, various means of electronic
communication and/or written contacts at their residence, place of
employment, or other locations where parents, guardians, or custodians
are known to frequent. Notice will be deemed adequate after failing
to locate the parent(s), guardian or custodian within twelve (12)
hours of removal. The notice will advise the intended recipients of
their rights under this code.
(b)
Notice to tribe if different than NHBP. If the Tribal Court
asserts jurisdiction over a person who is a member of an Indian tribe
other than the NHBP, the Tribal Court will immediately notify the
appropriate tribal presenting officer or tribal social services agency
that jurisdiction has been asserted by NHBP.
(4) Hearing on motion to remove. The Tribal Court will conduct a hearing
on the motion to remove child(ren) no later than the next business
day after the motion is filed.
(a)
The Court may receive any testimony and other evidence offered
in support of motion to remove.
(b)
The standard of proof is clear and convincing evidence.
(c)
The Court will uphold the removal of child(ren), if the burden
of proof is met and the court makes the following findings:
[1]
The child is a protected child;
[2]
The child faces an imminent risk of substantial harm if not
immediately taken into protective custody; and
[3]
It is contrary to the welfare of the child to remain in his
or her home.
(d)
If the burden of proof is not met, the court will order the
child(ren) to be released to the custody of his or her parent(s) or
guardian.
(5) Information concerning the location of the child. The NHBP Court
may prevent the parents, guardian, custodian, or other interested
parties from receiving information, whether in written form or in
testimony, concerning the custody or location of the child if the
NHBP Court determines, based on the allegations in the motion to remove
children, that revealing such information would create an undue risk
of harm to the child.
B. Removal with ex parte order.
(1) Standard for ex parte order for removal. The SSU or its designee
or the Presenting Officer may file a motion for ex parte removal of
child(ren) to take a child into protective custody when there is probable
cause to believe that:
(a)
The child is a protected child;
(b)
The child faces an imminent risk of substantial harm if not
immediately taken into protective custody; and
(c)
It is contrary to the welfare of the child to remain in his
or her home.
(2) Contents of ex parte motion to remove child(ren). The motion must
include all available information that supports the need to take the
child(ren) into protective custody.
(3) Ex parte order; order to remove. If the Court, upon clear and convincing
evidence, finds a child is a protected child as defined herein, and
that conditions or circumstances present a substantial risk of harm
to the child(ren)'s physical health or mental well-being, the
Court may issue ex parte orders to remove the child(ren) from the
condition or circumstances and place the child(ren) under the protective
care and custody of the SSU or its designee. The Court will include
in such an order:
(a)
An authorization to enter a specified premise(s) for purposes
of removing a child(ren) and to gather evidence;
(b)
A directive to law enforcement or SSU to place the child(ren)
in protective custody pending preliminary hearing.
(4) Hearing on ex parte motion and order to remove child(ren). The Tribal
Court will conduct a hearing on the motion and ex parte order to remove
child(ren) within three (3) business days of the child(ren)'s
removal.
(a)
The standard of proof is clear and convincing evidence.
(b)
The Court will continue the removal of the child(ren) if the
burden of proof is met and the Court makes the following findings:
[1]
The child(ren) continue to be child(ren) in need of protection;
[2]
The child(ren) continue to face an imminent risk of substantial
harm if not continued in protective custody; and
[3]
It continues to be contrary to the welfare of the child(ren)
to remain in his or her previous placement.
(c)
If the burden of proof is not met, the court will order the
child(ren) to be returned to the previous placement.
(d)
The Tribal Court may prevent individuals from hearing any testimony
concerning the temporary placement or custody of the child(ren), if
the court determines that the child may face a risk of harm if such
information becomes known to those persons.
C. Additional removal considerations. If it is clear at the time of
contact with the child or family members that the risk of harm to
the child outweighs the potential that the conditions or circumstances
which form the grounds for removal can be substantially mitigated
or eliminated by immediate and voluntary remedial efforts, the child
and all children residing within the same domicile or residence may
be removed.
D. Request for removal by motion hearing.
(1) Standard for removal by motion hearing. The SSU or its designee or
the Presenting Officer may file a motion for the removal of child(ren)
to take a child(ren) into protective custody. The motion must state
that:
(a)
The child(ren) is a protected child;
(b)
The child(ren) faces an imminent risk of substantial harm if
not immediately taken into protective custody; and
(c)
It is contrary to the welfare of the child(ren) to remain in
his or her home.
(2) Contents of motion to remove child(ren). The motion must include
all available information that supports the need to take the child(ren)
into protective custody.
(3) Hearing on the motion to remove child(ren). The Tribal Court will
conduct a hearing on the motion to remove child(ren) within fourteen
(14) business days of the child(ren)'s removal.
(a)
The standard of proof is clear and convincing evidence.
(b)
The Court will grant the motion to remove the child(ren) if
the burden of proof is met and the Court makes the following findings:
[1]
The child(ren) meets the definition of a child(ren) in need
of protection;
[2]
The child(ren) faces an imminent risk of substantial harm if
not immediately taken into protective custody; and
[3]
It is contrary to the welfare of the child(ren) to remain in
his or her home.
(c)
If the burden of proof is not met, the Court will deny the motion.
(d)
The Tribal Court may prevent individuals from hearing any testimony
concerning the temporary placement or custody of the child(ren), if
the Court determines that the child may face a risk of harm if such
information becomes known to those persons.