A.
Information or allegations that a child has been abused and/or neglected,
abandoned, surrendered, presents a danger to self or others, or that
the child is in need of protection and services shall be referred
to the Department.
B.
The Department shall promptly initiate screening decisions for all
allegations. The Department shall develop criteria to decide if the
information or allegation(s) should be assigned for preliminary assessment.
C.
The Department shall conduct a preliminary assessment within 60 days
from the date of allegation, which shall include:
(1)
A determination of the nature, extent, and cause of any condition
which is contrary to the child's best interests;
(2)
The name, age, and condition of other children in the home;
(3)
Evaluation and assessment of the home environment of the child or
children in the same home and the risk to such children if they continue
to be subjected to the existing home environment, and all other facts
or matters found to be pertinent.
D.
The Department shall notify the appropriate law enforcement agency
where criminal conduct is suspected;
E.
The Department shall prepare a written report substantiating or unsubstantiating
the allegations.
(1)
The written report shall contain:
(a)
The names and addresses of the child and his/her parent(s),
guardian(s) or caretaker(s);
(b)
The child's date of birth;
(c)
The name(s) of the child's birth parent(s) and the date(s) of
birth of the child's parent(s);
(d)
The nature and extent of the child's abuse and/or neglect, including
any evidence of previous abuse and/or neglect and other information
that might be helpful in establishing the cause of abuse, and/or neglect;
(e)
Identity of the person or persons responsible for the abuse
and/or neglect, and the current location of the child;
(f)
Enrollment status of child and child's birth parent(s) if available;
and
(g)
A substantiation determination.
(3)
If the allegation is substantiated, the Department shall:
(a)
Refer to Netāēnawemākanak services
or other appropriate agencies; or
(b)
Enter into an informal disposition and notify the Prosecutor
within 10 days of entering the informal disposition; or
(c)
Refer the matter to the Prosecutor for the filing of a child
in need of protection and services petition for Court intervention.
A.
The Department may enter into an informal disposition under this
article, when it promotes the best interests of the child and protects
the child's health and safety, if all of the following exist:
(1)
There is a written agreement with all parties describing the conditions
and obligations that must be met to ensure the child is protected
and to alleviate the condition that led to the referral.
(2)
The Department has determined that the interest of the child does
not require a formal Court intervention to provide protection and
services to the child and there is jurisdiction over the child and
family.
(3)
There is consent by the child's parent(s), guardian(s) or caretaker
and the child, if the child is 12 years of age or older.
(4)
Prosecutor shall receive notice of all informal dispositions.
B.
The informal disposition may not include any form of out-of-home
placement and may not exceed six months, unless an extension is agreed
to by all parties. At no time shall an informal disposition exceed
12 months. If an extension is objected to, the Department may request
the Prosecutor file a petition.
C.
If the informal disposition requires a person to obtain an alcohol
or drug abuse assessment, they shall execute an informed consent form
that they are voluntarily and knowingly entering into an informal
disposition agreement with a provision for alcohol and drug abuse
treatment.
D.
Informal disposition shall be terminated:
(1)
When the conditions and obligations imposed are not being met and
shall be referred to the Prosecutor for filing a petition. The Prosecutor
shall have 20 days after the termination referral to file the petition;
or
(2)
At the request of a child 12 years or over, parent(s), guardian(s)
or caretaker(s) and shall be referred to the Prosecutor for filing
a petition; or
(3)
When the Prosecutor files a petition within 20 days after receipt
of notice of the informal disposition.
E.
If all the conditions and obligations of the informal disposition
are met, no petition may be filed on the referral allegations or information
that brought about the informal disposition.
A.
A child may be taken into physical custody by the Department or law
enforcement officer if they reasonably believe one or more of the
following circumstances exist, have existed, or is likely to exist:
(1)
The child is suffering from illness, injury or faces an imminent
threat of physical harm or damage from his or her surroundings.
(2)
The child's parent, guardian, or caretaker is unavailable, unwilling,
or unable to provide necessary supervision or care such that the child's
safety or well-being is at imminent risk.
(3)
The child has or habitually runs away from the parent(s), guardian(s)
or caretaker(s).
(4)
The child is away or being taken away so as to be unavailable for
further Court proceedings.
(5)
The child has been abandoned.
(6)
The child has been surrendered.
(7)
The child has suffered or is likely to suffer serious psychological/emotional
or physical harm inflicted upon the child by parent(s), guardian(s),
or caretaker(s) other than by accidental means or which is self-inflicted
and which causes or creates a substantial risk of death, disfigurement,
or impairment of bodily or mental functions.
(8)
Another child residing in the home is subject to one or more of the
above conditions.
(9)
A capias, order, or a warrant for the child's apprehension has been
issued in the Court, the State of Wisconsin, in another state, or
issued by another Tribe, or that the child is a fugitive from justice.
(10)
Violations of conditions of temporary custody order.
B.
The Department or law enforcement officer shall have authorization
to address the immediate needs and emergency medical attention of
the child during the initial hold period prior to the filing of a
petition.
C.
If a child is taken into temporary physical custody, the Department
shall obtain a medical clearance of the child within 24 hours, excluding
Saturdays, Sundays and holidays.
D.
Temporary custody shall not exceed 120 hours from the time the child
is initially taken into physical custody, excluding Saturdays, Sundays
and holidays.
E.
Taking into custody is not an arrest except for the purpose of determining
whether the taking into custody or the obtaining of evidence is lawful.
A.
The law enforcement officer taking a child into physical custody,
as authorized by this article, shall immediately consult with the
Department and, within 24 hours:
(1)
Release the child to the child's parent(s), guardian(s) or caretakers(s)
when there is no immediate danger to the child and issue verbal counsel
to ensure the child's safety; or
(2)
Deliver the child to the Department; or
(3)
Deliver the child to an appropriate relative placement or shelter
care facility; or
(4)
Deliver the child to a medical facility if the child is believed
to be suffering from a serious physical or mental condition or illness
which requires either prompt treatment or prompt diagnosis; and
(5)
Notify the Department, in writing, in any of the above situations.
B.
The Department or law enforcement officer taking the child into custody
shall give written notice thereof as soon as possible, and in no case
later than 72 hours, to the child's parent(s), guardian(s) or caretaker(s)
and to the Prosecutor, together with a statement providing the reason(s)
for taking the child into custody.
C.
When a child is taken into custody and is not released to the child's
parent(s), guardian(s) or caretaker(s):
(1)
The person taking the child into custody shall immediately attempt
to notify the parent, guardian, or caretaker by the most practical
means, together with a statement providing the reason for taking the
child into custody.
(2)
The person taking the child into custody shall continue such attempt
until the parent, guardian, or caretaker is notified, or the child
is delivered to the Department under this section, whichever occurs
first.
(3)
If the child is delivered to the Department, the Department worker
or another person at their direction shall continue the attempt to
notify until the parent(s), guardian(s), or caretaker(s) are notified.
(4)
If no parent(s), guardian(s) or caretaker(s) can be found the Department
may give notice at the last known physical address or to an immediate
relative of the parent(s), guardian(s) or caretaker(s).
D.
The Department shall review the need for continued custody after
delivery of the child to relative placement or the facility and shall
release the child from custody if appropriate. The Department shall
determine whether the child can be released from custody with the
provision of appropriate services to the family or under specified
restrictions.
E.
Improper removal. If any party asserts or the Court has reason to
believe that the child may have been improperly removed from the custody
of his or her parent, or that the child has been improperly retained,
the Court must determine whether there was improper removal or retention.
(1)
If the Court finds that the child was improperly removed or retained,
the Court must terminate the custody proceedings and the child must
be returned immediately to his or her parent or guardian or caretaker,
unless returning the child would subject the child to substantial
and immediate danger or threat of such danger.
(3)
Failure to act within these custody time lines does not deprive the
Court of personal or subject matter jurisdiction or of competency
to exercise that jurisdiction.
A.
If a child who has been taken into custody is not released, a hearing to determine whether the child shall continue to be held in custody under § 278-31 shall be conducted by the Court within 48 hours of the child being taken into physical custody, excluding Saturdays, Sundays and holidays.
B.
The purpose of the protective custody hearing is to allow a judge
to review the decision to remove the child from the home and to determine
whether it is reasonable to believe that allowing the child to remain
in the home is contrary to the welfare of the child and that reasonable
efforts were made to prevent the removal of the child from the home,
and active efforts were made to.
C.
If a child has been taken into custody and has not been released,
a petition under this chapter shall be filed by the time of the TPC
hearing to determine whether the child shall continue to be held in
custody, except:
(1)
No petition is required when the child is taken into custody from
a capias or the Court is provided with a written statement that the
child is a runaway from another state; or the child has violation
the conditions of an order for TPC by an intake worker or the Court;
or
(2)
If the Prosecutor files a request for an extension of time to file
the petition, not to exceed 72 hours from the time of the TPC hearing,
excluding Saturdays, Sundays, and holidays. The Prosecutor must prove
as a result of the facts brought forth at the hearing there is probable
cause that any of the following exists:
(a)
Additional time is required to determine whether the filing
of a petition initiating Court proceedings is necessary;
(b)
The child is in imminent danger to himself or herself or to
others.
(c)
That the parent, guardian, or caretaker of the child or other
responsible adult is neglecting, refusing, unable, or unavailable
to provide adequate care or supervision.
(d)
An extension under § 278-33C(2) above may be granted only once for any petition.
(e)
In the event of failure to file a petition under this subsection,
the Court shall order the child's immediate release from custody.
D.
A child shall not remain in custody unless one of the following criteria
is met at the temporary physical custody hearing. Probable cause exists
to believe that:
(1)
If not in custody, the child will commit injury to persons or property
of others, or cause injury to himself/herself or be subject to injury
by others; or
(2)
The child has no parent(s), guardian(s) or caretaker(s) able to provide
adequate supervision and care for the child; or
(3)
The child will run away or be taken away so as to be unavailable
for proceedings of the Court or its officers; or
(4)
The health and safety of the child cannot be ensured if the child
is not kept in custody.
E.
Written notice of the TPC hearing stating the time, place and purpose
of the hearing shall be given to the child's parent(s), guardian(s)
or caretaker(s), at their last known physical address, or if the parent(s),
guardian(s) or caretaker(s) cannot be found, to an immediate relative.
F.
If a parent(s), guardian(s), or caretaker(s) was properly notified
and failed to appear or waive appearance at the TPC hearing, the Court
shall note on the record the notification efforts made to the parent(s),
guardian(s), or caretaker(s) and proceed with the hearing.
G.
At the commencement of the TPC hearing, the judge shall advise the
parties of their basic rights, including their right to be represented
and appointed legal counsel.
H.
All relevant and material evidence helpful in determining the need
for continued custody may be admitted by the Court even though it
would be otherwise inadmissible in a hearing on the petition.
I.
Reasonable efforts. Reasonable efforts to prevent the removal of
a child or reunify the child and family are not required if the Court
finds that:
(1)
A parent has subjected a child to aggravated circumstances; or
(2)
A parent has been convicted of aiding and abetting, attempting to,
conspiring to, or soliciting any manner of homicide of a child's sibling
or another parent; or
(3)
Parental rights of the parent with respect to a child's sibling have
been terminated involuntarily.
J.
The Court, at its discretion, may appoint a guardian ad litem. The
duties of the guardian ad litem shall be to:
(1)
Guide the Court to serve the best interests of the child;
(2)
Inform by written report to the Court on matters regarding the background,
environment, needs and wishes of the child;
(3)
Appear at all proceedings and to speak on behalf of the child; and
(4)
Remain active until discharged by Court order or when the case is
closed with the Court.
K.
If the Court finds out-of-home placement is not appropriate under
the criteria established by this section, the judge shall order release
of the child from custody, but may order protective supervision until
further order of the Court.
L.
If the judge finds out-of-home placement is appropriate under criteria
established by this section, the judge shall issue an order placing
the child in an appropriate location.
M.
All orders to hold a child in custody shall be in writing listing
the reasons, criteria and findings forming the basis of the Court's
decision.
N.
An order relating to a child in custody outside of the home shall
also include the following:
(1)
A finding that continued placement of the child in his or her home
would be contrary to the welfare of the child into custody and the
Departmental worker have made reasonable efforts to prevent the removal
of the child from the home, while ensuring that the child's health
and safety are the paramount concerns or findings of aggravated circumstances
not requiring reasonable efforts under this chapter.
(2)
Findings as to whether the person who took the child into custody
and the Departmental worker have made reasonable efforts to make it
possible for the child to return safely home.
(3)
If the child is held in custody outside the home in a placement recommended
by the Departmental worker, a statement that the Court approves the
placement recommended by the Departmental worker or, if the child
is placed outside the home in a placement other than a placement recommended
by the Departmental worker, a statement that the Court has given bona
fide consideration to the recommendations made by the Departmental
worker and all parties relating to the placement of the child.
O.
If the child has one or more siblings who have also been removed
from the home, a finding as to whether the Departmental worker has
made reasonable efforts to place the child in a placement that enables
the sibling group to remain together, unless the Court determines
that a joint placement would be contrary to the safety or well-being
of the child or any of those siblings, in which case the Court shall
order the Department to make reasonable efforts to provide for frequent
visitation or other ongoing interaction between the child and the
siblings, unless the judge or circuit Court Commissioner determines
that such visitation or interaction would be contrary to the safety
or well-being of the child or any of those siblings.
P.
Any order issued pursuant to this section which removes (even temporarily)
the child from his/her home shall contain the findings: "that active
efforts to prevent removal from the family were made or that it is
reasonable to make no efforts to reunite the family, and that out-of-home
placement would be in the best interest of the child or that remaining
in the current residence is contrary to the welfare of the child."
Q.
Documentation of judicial determinations. Judicial determinations
for the following findings must be explicitly documented, made on
a case-by-case basis, and so stated in a Court order:
R.
Effective period of order. Following a judicial determination that
reasonable efforts were made to prevent the removal of the child from
the home, the child may remain in custody through judicial order for
a physical or constructive removal from the home pending the outcome
of further hearings under this article. An order to hold a child in
custody remains in effect until a dispositional order is granted or
a consent decree is entered, a petition is withdrawn or dismissed,
or the order is modified or terminated by further order of the Court.
S.
A parent not present at the TPC hearing shall be granted a rehearing
upon request only for good cause shown.
A.
Prosecutor shall have the primary authority to file a child in need
of protection and services petition under this chapter.
(1)
Referrals to the Prosecutor requesting a petition initiating a child
in need of protection and services where the child is not in custody
shall be filed within 20 calendar days of referral.
(2)
Prosecutor may refer back to the Department for follow-up investigation
by the Department not to exceed 20 calendar days. The second referral
based on follow-up investigation request shall be filed within 20
calendar days.
(3)
Prosecutor may only refer back to the Department for follow-up investigation
one time.
A.
Jurisdiction over children alleged to be in need of protection or
services exists under one or more of the following circumstances:
(1)
The child is or has been abused;
(2)
The child is or has been neglected;
(3)
The child has been abandoned.
(4)
The child has been surrendered.
(5)
The child receives inadequate care during the period of time a parent
is missing, incarcerated, hospitalized, or institutionalized.
(6)
The child is suffering from alcohol or other drug abuse impairment,
exhibited to a severe degree for which the parent, guardian or caretaker
is neglecting, refusing, or unable to provide treatment.
(7)
Has a parent or guardian/caretaker who requests intervention and
states that they are unable to care for, control, or provide the necessary
special care or treatment for the child.
(8)
The child who is at least 12 signs the petition requesting jurisdiction
under this subsection and is neglected and/or in need of special treatment
which the parent, guardian, or caretaker is unwilling, neglecting,
unable, or needs assistance to provide.
(9)
Has been committing delinquent acts with parental pressure, acquiescence,
guidance, or approval.
(10)
Has been committing delinquent acts and is under the age of
10 years.
(11)
Has engaged in conduct otherwise prohibited to minors and whose
parent, guardian or caretaker fails to correct or regulate such conduct.
(12)
Has been placed for care or adoption in violation of law.
(13)
Another child who resides in the child's home, or has regular
contact with the home or its residence is subject to one or more of
the above conditions.
B.
Form and content. A petition initiating any proceeding under this
article shall be captioned "Menominee Tribal Court," "Menominee Indian
Tribe of Wisconsin," and entitled, "In the Interest of: (child's Initials)
DOB: (date of birth of child) and shall set forth with specificity:
(1)
The facts necessary to invoke the jurisdiction of the Court;
(2)
If the child is alleged to be a child in need of protection and services,
a citation to the appropriate section of the chapter shall be included;
(3)
A plain and concise statement of facts upon which the allegations
that the child is in need of protection and services are based, including
the date, time and location at which the alleged act(s) occurred;
(4)
The name, birth date, residence, address and enrollment status of
the child;
(5)
The name(s), residence addresses and enrollment status of parent(s),
guardian(s), and caretaker(s) of the child; and if none of the parent(s),
guardian(s) or caretaker(s) reside or can be found within the Menominee
Indian Reservation, or if their residence or addresses are unknown,
the name of any known adult relative residing within the Menominee
Indian Reservation or, if none, the known adult relative living nearest
to the Court;
(6)
The name of the Prosecutor presenting the petition;
(7)
Whether the child is in custody or placed outside of the home and,
if so, where the child is placed and the time and date the child was
taken into custody;
(8)
The reasonable and active efforts made by the Department or other
agencies, persons or entities to prevent the removal of the child
from the parent(s), guardian(s) or caretaker(s) through the provision
of specific identified services, if appropriate; and
(9)
If any information set forth by this section is not known, a statement
that they are not known should be made.
(10)
The statements in the petition may be made upon information
and good-faith belief.
(11)
A Uniform Child Custody Jurisdiction and Enforcement Act affidavit.
[Added 5-20-2021 by Ord.
No. 21-42]
(12)
Any other information as deemed necessary by the Court.
[Amended 5-20-2021 by Ord. No. 21-42]
C.
Amending petition.
(1)
No petition may be dismissed or reversed for any error or mistake
if the case and the identity of the child or expectant mother named
in the petition may be readily understood by the Court; and the Court
may order an amendment curing the defects.
(2)
With reasonable notification to the interested parties and prior
to the taking of a plea, the petition may be amended by person who
filed the petition at the discretion of the court. After the taking
of a plea, the petition may be amended provided any objecting party
is allowed a continuance for a reasonable time. An amended petition
may be given to the parties directly by the Tribal Prosecutor or the
department worker or served on the parties pursuant to the section
below, Service of the petition and summons.
[Amended 5-20-2021 by Ord. No. 21-42]
A.
Service.
(1)
Petitions alleging that a child is in need of protection and services
shall be personally served on: the child's parent, current guardian,
or caretaker; and the child who is the subject of the petition if
he or she is 12 years of age or older;
(2)
Notice shall be served via first class and certified mail, return
receipt requested for any person who parties or the Court deem necessary
for proper adjudication;
(3)
If any party who is required to be personally served is outside the
Tribe's service area, service shall be by certified mail, return receipt
requested, or by any means reasonably designed to give notice.
(4)
If any current party's address is unknown, the petition shall be
published in a regularly published newspaper of the last known area
the party resided in.
(5)
Service shall be made by any person over the age of 18 who is not
a party to the proceedings.
B.
Summons.
(1)
After a petition has been filed, unless the parties voluntarily appear,
the Court may issue a summons requiring the person who has legal custody
of the child to appear personally, and, if the Court so orders, to
bring the child before the Court at a time and place stated.
(2)
Summons may be issued requiring the appearance of any other person
whose presence, in the opinion of the Court, is necessary.
A.
At any time after a petition is filed, but before the fact-finding
hearing, the Prosecutor and respondent(s), with concurrence of the
Department, may stipulate to a consent decree which shall suspend
the child in need of protection and service action.
B.
Consent decrees shall only be utilized when it promotes the best
interests of the child and protects the child's health and safety.
C.
The following parties must stipulate and agree to the consent decree:
child if 12 years or older, the parent, guardian or caretaker, the
person filing the petition, and the child's guardian ad litem.
E.
Upon granting of the consent decree, any appropriate party may move
the Court for:
F.
The consent decree shall be reduced to writing with appropriate findings
and conditions and given to the parties.
G.
Respondent(s) shall comply with conditions of the consent decree,
which shall be supervised by the Department.
H.
Consent decree shall not exceed six months from the date adopted
by the Court unless the consent decree is completed earlier or parties
agree to extend; such extension shall not exceed six months.
I.
Failure to comply with the consent decree shall result in the reinstatement
of the child in need of protection and services action.
J.
Upon successful completion of the consent decree, the original/underlying
petition shall be dismissed at the end of the appropriate consent
decree period without further order of the Court.
A.
Within 30 calendar days after the filing of a petition for a child
in need of protection and services, the Court shall hold an initial
appearance to address the following:
(1)
Review the status of service of process;
(2)
Inform parent(s), guardian(s) or caretaker(s) of their continuing
legal rights for the duration of the proceedings;
(3)
Advise parent(s), guardian(s) or caretaker(s) of the petition filed
and contents therein;
(4)
Advise parent(s), guardian(s) or caretaker(s) that a request for
a substitution of judge must be made before the end of the plea or
is waived.
(5)
Determine whether the petition is being contested:
(b)
Parties contesting petition shall deny the child is in need
of protection and services.
(c)
The Court must determine that the plea or admission is made
voluntarily and without threat with understanding of the nature of
the acts alleged in the petition and the potential dispositions.
(d)
The Court shall make such inquiries to satisfactorily establish
that there is a factual basis for the plea or admission of the parties.
B.
If the petition is not contested, the Court shall:
(1)
Schedule a disposition hearing allowing for reasonable time for parties
to prepare.
(2)
The hearing shall be held no later than 30 calendar days after the
initial appearance, unless good cause is shown or the parties waive
time limits.
(3)
The Court may immediately proceed with disposition if all parties'
consent and Court requirements are met.
C.
If the petition is contested or adjourned for counsel, the Court
shall:
D.
Time limits under this section are mandatory.
A.
A hearing shall be conducted by the Court separate from other proceedings.
All hearings will be without a jury. In this section, "fact-finding
hearing" means a hearing to determine if the allegations under the
petition are proved by clear and convincing evidence.
B.
The Court shall advise the parties of their basic rights pursuant
to this article.
C.
Hearings shall be closed to the general public. Only the parties,
their legal counsel, witnesses and other persons requested by a party
and approved by the Court may be present at a closed hearing.
(1)
Witnesses may be sequestered by the Court upon motion from the parties.
In addition, persons the Court finds to have a proper interest in
the case may be admitted by the Court to closed hearings on the condition
that they respect the confidentiality of the proceedings.
(2)
Those persons or parties who intentionally divulge information in
violation of this section may be found liable for a civil offense.
Persons found in violation of this section by a preponderance of the
evidence may be ordered to pay a civil fine not to exceed $500, and
may be subject to other action by the Court necessary to protect the
confidentiality of the proceedings and the best interest of the child.
D.
The Court may use written reports if the right to have testimony
presented is voluntary, knowingly and intelligently waived by guardian
ad litem for the child and legal counsel for the parent(s).
E.
If the allegations as identified in the petition are denied, the
Court shall proceed to hear all of the evidence and enter into the
record whether or not the child is in need of protection and services
based on clear and convincing evidence.
F.
If the Court finds that the allegations have not been proved by clear
and convincing evidence, it shall dismiss the petition with prejudice
and order the child be returned to the parent(s), guardian(s) or caretaker(s)
if not in their custody.
G.
If the Court finds that the child or unborn child is not in need
of protection and services, it shall dismiss the petition with prejudice
and order the child be returned to the parent(s), guardian(s) or caretaker(s)
if not in their custody.
H.
If the Court finds that the child or unborn child is not within the
jurisdiction of the Court, it shall dismiss the petition with prejudice
and order the child be returned to the parent(s), guardian(s) or caretaker(s)
if not in their custody.
I.
If child is found to be a child in need of protection and services
pursuant to this article, the Court shall schedule a disposition hearing.
The Court may immediately proceed with the disposition hearing if
the petition is not contested, all parties consent, and Court report
requirements are met.
J.
At the close of the fact-finding hearing in which the Court does
not immediately proceed with disposition, the Court shall set a date
for the dispositional hearing which allows reasonable time for the
parties to prepare but is no more than 30 calendar days after the
fact-finding hearing, unless the Court enters an order finding good
cause to go outside the time limits.
[Added 5-20-2021 by Ord.
No. 21-42]
A.
If the Court finds that the child is in need of protection and services,
the Court shall order the Department to prepare a disposition report,
which shall include evaluations, assessments, a family assessment,
and other material to be considered by the Court.
B.
The report shall be submitted no later than least five business days
before the scheduled hearing, except this time line may be waived
if, following a fact-finding hearing, all parties agree to immediately
go to disposition and no party objects.
C.
The disposition report shall contain the following information:
(1)
A statement of the specific harm to the child that intervention is
designed to alleviate;
(2)
Department's jurisdictional finding;
(3)
Description case history, including previous Department- and/or Court-ordered
intervention;
(4)
Placement history; justification for continued out-of-home placement.
If removal from or continued placement outside the home is recommended,
a statement of the likelihood of serious emotional or physical harm
to the child if remaining in the home with his/her parent(s), guardian(s)
or caretaker(s);
(5)
A description of the goals with recommended conditions needed to
be made by both the parent(s) and the child in order to reunify or
maintain the family unit;
(6)
Pertinent treatment efforts facilitated by the family, including
culturally competent services and assessments;
(7)
Reasonable and active efforts that Department has made to prevent
the removal of the child from the home or as to why these efforts
have not been achieved;
(8)
A case plan consisting of:
(a)
A description of the specific goals and progress needed to be
made by the parent(s), guardian(s) or caretaker(s) in order to prevent
further harm to the child, reunify or maintain the family unit; a
specific plan setting out the steps to be taken by the parent(s),
guardian(s) or caretaker(s), and social worker; and a timetable for
their completion, the reasons why such a program is likely to be useful,
the availability of any proposed services and the assigned agencies'
overall plan for ensuring that the services will be delivered.
(9)
If the Department is recommending that the Court order the juvenile's
parent, guardian, or legal caretaker to participate in mental health
treatment, anger management, individual or family counseling, or parent
training and education, a statement as to the availability of those
services and the availability of funding for those services.
(10)
Permanency placement options for a child placed outside of the
home;
(11)
Summary of recommendations.
A.
Purpose. Upon finding the child in need of protection and services,
the Court shall:
(1)
Hold a disposition hearing;
(2)
Determine appropriate placement of the child and the conditions to
continue placement in the home or reunification;
(3)
Determine conditions and appropriate services to ensure the safety,
well-being, and best interest of the child to alleviate the issues
giving rise to the petition.
B.
Procedure.
(1)
Time lines. This hearing shall commence no later than 30 calendar
days after finding on the record that a child is in need of protection
and services.
(a)
By motion of a party or by its own authority, the Court may
continue the hearing for a period not to exceed 10 business days to
receive reports and other evidence bearing on the need for care or
rehabilitation or in connection with disposition unless good cause
is shown or the parties waive time limits.
(b)
During any continuance under this section, the Court shall issue
an appropriate order for temporary legal custody.
(2)
Standard of proof. The petitioner bears the burden of proof by the
greater weight of credible evidence.
(5)
The Court's consideration of determining the best interest of the
child shall include, but not be limited to:
(a)
Recommendations of the Department.
(b)
Formal evaluations and assessments for the parent(s) and the
child, if necessary.
(c)
Other recommendations from the parties.
(d)
The Court may consider all relevant and material evidence helpful
in determining the questions presented, including oral and written
reports, and may rely on such evidence even though not otherwise admissible.
(e)
The Court shall advise parents in Court of the applicable grounds
for the suspension or termination of parental rights and the conditions
that are necessary for the child to be returned to the home or restoration
of visitation rights.
C.
Disposition findings and conclusions of law.
(1)
The Court shall make written findings of fact and conclusions of
law based on the evidence presented to support dispositions ordered.
(2)
That the child is under the jurisdiction of the Court.
(3)
If the Court orders out-of-home placement or continued out-of-home
placement, the Court shall make the following findings:
(a)
That return of the child would be contrary to the welfare of
the child.
(b)
The appropriateness of placement.
(c)
That reasonable efforts to prevent removal of the child, were:
made by the Department, made by the Department although an emergency
situation resulted in the immediate removal of the child from the
home, not required under this chapter, or not made by the Department.
(d)
The Court's consideration of reasonable efforts shall include,
but is not limited to, whether:
[1]
The Court may determine that reasonable efforts are not required
to be made when the Court finds the efforts would be futile; or the
parent(s), guardian(s) or caretaker(s) has subjected the child to
aggravated circumstances. In which case, a permanency review hearing,
pursuant to this chapter, shall be held within 30 calendar days of
such a determination.
[2]
That if there is a sibling group, reasonable efforts to place
the child in a placement that enables the sibling group to remain
together were made, not required, or contrary to the safety or well-being
of the child or any of the siblings.
(e)
That active efforts were made to provide remedial services and
rehabilitation programs designed to prevent the breakup of the family.
(f)
That continued custody of the child by the parent is likely
to result in serious emotional or physical damage to the child.
(g)
Placement is made in accordance with the order of preference
set forth in this chapter.
(h)
The Court may maintain any of the above findings from prior
proceedings subject to objection by any party. If a party objects,
the Court must hear argument at the time of the hearing and make a
finding.
(4)
The Court must make the initial findings described above in Subsection C(3) within 60 days after the child was removed from home.
[Amended 5-20-2021 by Ord. No. 21-42]
(5)
The placement location of Department is adopted or, after giving
bona fide consideration to the recommendations of the Department and
all parties, the placement location recommended is not adopted.
(6)
Any necessary findings relating to the statement of the guardian
ad litem.
(7)
Other findings as the Court deems necessary.
(8)
The Court shall make a finding within 180 days after a transition-to-independent-living
arrangement is entered into that the person's placement in out-of-home
care under the agreement is in the person's best interest.
D.
Disposition order.
(1)
The disposition order must be in writing.
(2)
The Court shall order the following:
(a)
Placement location.
[1]
Permit the child to remain with his/her parent(s), guardian(s)
or caretaker(s) subject to conditions and limitations prescribed by
the Court;
[2]
Place the child under protective supervision of the Department;
[3]
Transfer and maintain legal custody of the child to the Department
for appropriate placement.
(b)
Expiration of order.
(c)
Conditions of supervision and/or return.
(d)
Specific services to be provided to the child and family.
(e)
Legal custody of the child.
(f)
Parental contribution towards out-of-home placement.
(g)
Appointment of GAL or duration/termination of legal counsel.
(h)
Any other disposition as may be necessary to serve the best
interests of the child.
(3)
Duration. Expiration date of disposition orders shall be as follows:
(a)
In-home placement shall be for 12 months;
(b)
Out-of-home placement shall be the later of the following:
[1]
The date the child reaches his or her 18th birthday;
[2]
The date the child is granted a high school or high school equivalency
diploma or the date the child reaches his or her 19th birthday, whichever
occurs first, if the child is enrolled full-time in secondary school
or vocational or technical equivalent and reasonable expected to complete
the program prior to age 19;
[3]
The date the child is granted a high school or high school equivalency
diploma or the date the child reaches his or her 21st birthday, whichever
occurs first, if all of the following apply:
[a]
The child is a full-time student in secondary or
vocational school or the technical equivalent.
[b]
An individualized education program is in effect
for the child.
[c]
The child or guardian, on behalf of the child agrees
to the order.
[d]
The child is 17 years of age or older when this
order is entered.
(c)
If a change of placement is ordered, the Court shall review
the original expiration date and amend pursuant to this section.
(d)
If a petition for suspension or termination of parental rights
is filed, or appeal from suspension or termination of parental rights
judgment is filed during the year, the dispositional order is in effect,
the order remains in effect until all proceedings related to the filings
of the petition or appeal are concluded.
E.
Disposition order review, modification, or extension.
(1)
Change of placement may be requested by the primary dispositional
Departmental worker, Department or Prosecutor by written notice:
(a)
Notice must include name and address of new placement, reason
for change, statement why new placement is preferable to present placement
and how it satisfies the objectives of the dispositional plan ordered
by the Court.
(b)
Notice must be sent to: child's attorney, guardian ad litem,
parents, guardian, or caretaker and their representatives, if any.
(c)
Placement may be made immediately as authorized in dispositional
order and if notice is given or if not authorized but parent(s), guardian(s),
or caretaker(s), signs a written waiver of objection.
(d)
Persons receiving notice, other than treatment foster parent,
may receive a hearing if an objection is filed within 10 days of receipt
of notice.
(e)
Change of placement may not be made earlier than 10 days after
written notice is sent if it is not authorized in the dispositional
order and waiver of objection is not signed.
(2)
Emergency change-of-placement may be made by the primary dispositional
Department worker, Department or Prosecutor if emergency conditions
require immediate change of placement.
(3)
A hearing on change of placement is not required:
(a)
For placement changes authorized in the dispositional order
except where objections filed by person who received the notice alleges
new information available that affects the advisability of the Courts
dispositional order; or
(b)
When no party receiving notice of change of placement has filed
an objection with the Court within 10 days of receipt of notice for
change of placement.
(4)
Modifications.
(a)
Modifications to the dispositional order may be requested by
the child, parent, guardian or legal caretaker, any party or agency
bound by the dispositional order, Prosecutor, guardian ad litem, or
the Court on its own motion.
(b)
Modifications must set forth in detail the proposed modifications
and new information available that affects the advisability of the
Court.
(c)
Must be filed with the Court and served on all parties.
(d)
Unless written waivers of objection are signed by all parties,
a hearing must occur, with at least three days' notice to all parties.
Court may proceed immediately with hearing if all parties consent.
(e)
Change from in-home placement to out-of-home placement shall
be treated just as an initial disposition requiring all of the same
findings and efforts required by this article. Reasonable efforts
findings must be made no later than 60 days after the date the child
is removed from the home.
(5)
Extensions.
(a)
Extensions of dispositional order must be filed prior to expiration
of the order and must be accompanied by a written report.
[1]
The written report must at a minimum outline the objectives
that have been or not been met, evaluation of adjustment to placement
and progress, permanency review and options, and, if out-of-home,
why returning the child to home is not safe or feasible.
[2]
If the child is placed outside of the home for 15 of the last
22 most recent months, the report must include a recommendation made
to suspension or termination of parental rights.
(b)
Hearings are required to extend a dispositional order and must
be help before the expiration of the dispositional order or period
of temporary extension.
(c)
Temporary extension may be granted for a period not more than
30 days if the request for extension is made prior to expiration but
the Court is unable to conduct a hearing. In commuting time for this
subsection, any time resulting from inability to notice child due
to runaway status shall be excluded.
(d)
Any party may present evidence relevant to the issue of extension.
The appearance of the child may be waived by the child's counsel or
guardian ad litem.
(e)
No change of placement may extend the expiration of the disposition
order.
(f)
Extensions are discretionary decisions made by the Court.
(g)
Dispositional orders based on unavailability may be extended
based upon failure to meet conditions relating to other parental deficiencies.
(h)
Court must make written findings of fact and conclusions of
law based on the evidence presented and in the same manner as the
original disposition order and issue a new dispositional order.
(i)
Burden of proof on the petitioner is greater weight of the evidence
presented for extensions.
(j)
Extensions made before the child reaches age of majority are
effective up to one year even if the child reaches age of majority.
(6)
Suspension or termination of parental rights warnings.
(a)
If a child is in out-of-home placement, oral and written suspension
or termination of parental rights warnings should be given at all
change of placements, revision of disposition, and extension hearings.
(b)
If the Court denies parental visitation, the Court shall provide
suspension or termination of parental rights warning and notice of
conditions for the parent to be granted visitation.
F.
Disposition order termination.
(1)
All orders must terminate at the expiration of the dispositional
order unless an extension is filed.
G.
Trial reunification.
[Added 5-20-2021 by Ord.
No. 21-42]
(1)
The Department or the Tribal Prosecutor may request the Court to order a trial reunification. A trial reunification occurs when a child placed in an out-of-home placement resides in the home of a parent, guardian, or legal custodian from which the child was removed for a period of seven consecutive days or longer, but not exceeding 150 days, for the purpose of determining the appropriateness of changing the placement of the child to that home. A trial reunification is not a change of placement under Subsection E(1) or (2) above.
(2)
Request for trial reunification. The Department or the Tribal Prosecutor
shall include the following in the request for a trial reunification:
(3)
Emergency removal. A request for a trial reunification may not be made on the sole grounds an emergency condition necessitates an immediate removal of the child from the child's out-of-home placement. If an emergency condition necessitates such an immediate removal, the Department shall proceed with an emergency change of placement as described above in Subsection E(2).
(4)
Notice. The Department or the Tribal Prosecutor shall submit the
request to the Court and shall provide the parent, guardian, legal
custodian, and any other party written notice. The notice shall contain
the information that is required to be included in the reunification
request.
(5)
Trial reunification hearing. Any party who is entitled to receive
notice of a requested trial reunification may obtain a hearing on
the matter by filing an objection with the Court within 10 days after
the trial reunification request was filed with the Court.
(a)
If no objection against the trial reunification is filed, the
Court may issue an order for the trial reunification.
(b)
If an objection is filed, a hearing shall be held within 45
days after the request was filed with the Court. A trial reunification
shall not occur until after the hearing. Not less than three businesses
days before the hearing, the Department or the Tribal Prosecutor shall
provide notice of the hearing to all parties, with a request for the
trial reunification attached to the notice.
[1]
If a hearing is held and the trial reunification would remove
a child from a foster home or other placement with a legal custodian,
the Court shall give the foster parent or other legal custodian a
right to be heard at the hearing by permitting the foster parent or
legal custodian to make a written statement relating to the child
and the requested trial reunification.
[2]
The Court may appoint a guardian ad litem for the child during
the trial reunification hearing.
(6)
Order. If the Court finds that the trial reunification is in the
best interests of the child and that the trial reunification satisfies
the objectives of the child's permanency plan, the Court shall
order the trial reunification. The trial reunification shall terminate
90 days after the date of the order, unless the Court specifies a
shorter period in the order, extends or revokes the trial reunification.
No trial reunification order may extend the expiration date of the
original disposition order or any extension of the dispositional order.
(7)
Extension of reunification. The Department may request an extension
of a trial reunification.
(a)
Extension request. The request shall contain a statement describing
how the trial reunification continues to be in the best interests
of the child. No later than 10 days' prior to the expiration
of the trial reunification, the Department shall submit the request
to the Court and shall cause notice of the request to be provided
to all parties.
(b)
Extension hearing. Any party may obtain a hearing on the requested
extensions by filing an objection with the Court within 10 days after
the extension request was filed with the Court.
[1]
If no objection is filed, the Court may order an extension of
the trial reunification.
[2]
If an objection is filed, the Court shall schedule a hearing
on the matter. If the Court is unable to conduct a hearing on the
matter before the trial reunification expires, the trial reunification
shall remain in effect until the Court is able to hold the hearing.
Not less than three business days before the hearing, the Department
or the Court shall provide notice of the hearing to all parties, with
a copy of the extension request attached.
(c)
Extension order. If the Court finds that the trial reunification
continues to be in the best interests of the child, the Court shall
grant an order extending the trial reunification for a period specified
by the Court. Any number of extensions may be granted, but the total
period for a trial reunification may not exceed 150 days.
(8)
End of trial reunification period. When a trial reunification period
ends, the Department shall do one of the following:
(a)
Return the child to his or her out-of-home placement. The Department
may do so without further order of the Court, but within five days
after the return of the child to his out-of-home placement the Department
shall provide notice of the following:
(b)
Request a change in placement to place the child in a new out-of-home
placement; or
(c)
Request a change in placement to place the child in the trial
reunification home.
(9)
Revocation of trial reunification. The Department may determine that
a trial reunification is no longer in the best interests of the child
and revoke the trial reunification before the specified trial reunification
period ends.
(a)
Revocation request. If the Department determines that the trial
reunification is no longer in the best interests of the child, the
Department, without prior order by the Court, may remove the child
from the trial reunification home and place the child in the child's
previous out-of-home placement or place the child in a new out-of-home
placement.
[1]
If the Department places the child in the child's previous
out-of-home placement, within three business days of removing the
child from the trial reunification home the Department shall submit
a request for revocation of the trial reunification and shall provide
notice of the request to all parties. The request shall contain the
following information:
[2]
If the Department places the child in a new out-of-home placement,
within three business days of removing the child from the trial reunification
home, the Department shall request a change in placement and shall
include the date on which the child was removed from the trial reunification
home in addition to the general information required for a change
of placement. The trial reunification is revoked when the change in
placement order is granted.
(b)
Revocation hearing. Any party may obtain a hearing on the matter
by filing an objection with the Court within 10 days after the request
was filed with the Court.
[1]
If no objection is filed, the Court may issue a revocation order.
[2]
If an objection is filed, the Court shall schedule a hearing
on the matter. Not less than three business days before the hearing,
the Court shall provide notice of the hearing, together with a copy
of the request for the revocation, to all parties.
(c)
Revocation order. If the Court finds that the trial reunification
is no longer in the best interests of the child who has been placed
in his or her previous out-of-home placement, the Court shall grant
an order revoking the trial reunification.
(10)
Prohibited trial reunifications. The Court may not order a trial
reunification in the home of an adult who has been convicted of any
aggravated circumstances, if the conviction has not been reversed,
set aside, vacated, or pardoned. If a parent in whose home a child
is placed for a trial reunification is convicted of homicide or crime
against a child, and the conviction has not been reversed, set aside,
vacated, or pardoned, the Court shall revoke the trial reunification
and the child shall be returned to his or her previous out-of-home
placement, or placed in a new out-of-home placement.
(a)
Exception. A prohibition against trial reunifications based
on homicide of a parent or a crime against a child does not apply
if the Court determines by clear and convincing evidence that the
placement would be in the best interests of the child.
A.
The policy of the Tribe is to protect the best interests of its children
and to promote the stability of its families by setting forth standards
that reflect its cultural values while providing children a stable
foundation in a permanent home. Every child deserves a permanent and
stable home, and to be protected from emotional and mental harm caused
by separation for his or her family and uncertain temporary placement.
B.
Permanency options shall occur in order of the following preferences:
(1)
Reunify child with parent(s), guardian(s), or caretakers(s);
(2)
Create permanent guardianship with qualified relative;
(3)
Create permanent guardianship with person(s) enrolled or eligible
for enrollment with the child's Tribe;
(4)
Create permanent guardianship with a qualified Indian.
(5)
Create permanent guardianship with a non-Indian.
(6)
Adoption with a relative.
(7)
Adoption with a person(s) enrolled or eligible for enrollment with
the Indian child's Tribe.
(8)
Adoption by a qualified Indian.
(9)
Adoption by a non-Indian.
(10)
Emancipation.
C.
Permanency plan shall be filed within the first 60 days from the
date the child was removed from the home.
E.
These hearings shall review any progress made in the dispositional
order and include the following:
(1)
Determine the safety of the child, the continuing need for and appropriateness
of the placement;
(2)
Determine the extent of progress made toward alleviating or mitigating
the causes necessitating the placement; and
(3)
Project a likely date by which the child may be returned and safely
maintained at home and consider permanency options in the event return
of the child does not occur.
(4)
Whether reasonable efforts were made to finalize the permanency plan
and the progress made towards the dispositional order listed above.
F.
If the Department determines that the most appropriate plan is placement
in another planned permanent living arrangement not identified in
this chapter, the Court shall ensure that the Department, by compelling
reasons and evidence, demonstrate that this is in the best interest
of the child and the most appropriate plan. The Court shall enter
written factual findings and conclusions of law supporting its judgment.
G.
The permanency plan shall document any decision to pursue or not
to pursue a suspension or termination of parental rights.
H.
For children that are in out-of-home care for 15 of the last 22 months,
the Department must document by the 15th month one or more compelling
reasons not to file a suspension or termination of parental rights
unless a petition has been filed. The Department is permitted to alter
the permanency plan outside a permanency hearing and does not require
the Court to approve such exceptions documented in the plan.
A.
Presumption of substantial risk to the child. There shall be an automatic
presumption that use of alcohol beverages, controlled substances or
controlled substance analogs, without a prescription will create a
substantial risk to the physical health of the unborn child, and that
the child when born will be seriously affected or endangered due to
the expectant mother's lack of self-control in the use of alcohol
beverages, controlled substances or controlled substance analogs.
The same automatic presumption of substantial risk to a child shall
also apply to situations where there is a strong likelihood that the
child, when born, will be drug addicted due to the expectant mother's
use of controlled substances, or controlled substance analogs, prescribed
or otherwise.
B.
Preliminary assessment for expectant mother and unborn child.
(1)
Information or allegations that there is a substantial risk that
the physical health of the unborn child, and of the child when born,
will be seriously affected or endangered due to the expectant mother's
lack of self-control in the use of alcohol beverages, controlled substance
or controlled substance analogs, unless the expectant mother is taken
into custody shall be referred to the Department.
(2)
The Department shall promptly initiate screening decisions for all
allegations that there is a substantial risk that the physical health
of the unborn child, and the of the child when born, will be seriously
affected or endangered due to an expectant mother's lack of self-control
in the use of alcohol beverages, controlled substance or controlled
substance analogs, unless the expectant mother is taken into custody.
(3)
The Department shall conduct a preliminary assessment within 60 days
from the date of allegation.
(4)
The Department shall prepare a written report substantiating or unsubstantiating
the allegations.
(7)
If the allegation is substantiated, the Department shall:
(a)
Refer to Netāēnawemākanak services
or other appropriate agencies; or
(b)
Enter into an informal disposition and notify the Prosecutor
within 10 days of entering the informal disposition; or
(c)
Refer the matter to the Prosecutor for the filing of a child
in need of protection and services petition for Court intervention.
C.
Informal disposition.
(1)
The Department may enter into an informal disposition under this
subsection, when it promotes the best interests of the unborn child
and the mothers health and safety, if all of the following exist:
(a)
There is a written agreement with all parties describing the
conditions and obligations that must be met to alleviate the condition
that led to the referral.
(b)
The Department has determined that the interest of the unborn
child and mother's health and safety does not require a formal Court
intervention to provide protection and services and there is jurisdiction
over the mother.
(c)
Prosecutor shall receive notice of all informal dispositions.
(d)
If the informal disposition requires a person to obtain an alcohol
or drug abuse assessment, they shall execute an informed consent form
that they are voluntarily and knowingly entering into an informal
disposition agreement with a provision for alcohol and drug abuse
treatment.
(e)
Informal disposition shall be terminated:
[1]
When the conditions and obligations imposed are not being met
and shall be referred to the Prosecutor for filing a petition. The
Prosecutor shall have 20 days after the termination referral to file
the petition; or
[2]
When the Prosecutor files a petition within 20 days after receipt
of notice of the informal disposition.
(f)
If all the conditions and obligations of the informal disposition
are met, no petition may be filed on the referral charges that brought
about the informal disposition
D.
Taking an expectant mother into custody.
(1)
An expectant mother of an unborn child may be taken into physical
or nonsecure custody by the Department or Law Enforcement officer
if they reasonably believe one or more of the following circumstances
exist:
(a)
A warrant.
(b)
A capias issued by a judge.
(c)
An order of the judge if made upon a showing satisfactory to
the judge that, due to the expectant mother's lack of self-control
in the use of alcohol beverages, controlled substances or controlled
substance analogs, there is a substantial risk that the physical health
of the unborn child, and of the child when born, will be affected
or endangered unless the expectant mother is taken into custody and
that the expectant mother is refusing or has refused to accept any
alcohol or other drug abuse services offered to her or is not making
or has not made a good-faith effort to participate in any alcohol
or other drug abuse services offered to her. The order shall specify
that the expectant mother be placed in custody.
(d)
A capias or warrant for the apprehension of the expectant mother
has been issued in this jurisdiction or in another jurisdiction.
(e)
There is a substantial risk that the physical health of the
unborn child, and of the child when born, will be seriously affected
or endangered due to the expectant mother's lack of self-control in
the use of alcohol beverages, controlled substance or controlled substance
analogs, unless the expectant mother is taken into custody.
(f)
The expectant mother has violated the conditions of an order
or the conditions of an order for temporary physical custody by a
Department worker.
(2)
When an expectant mother of an unborn child is taken into physical
custody as provided in this section, the person taking the expectant
mother into custody shall immediately take the expectant mother for
a medical check if concern for the safety of the mother and/or unborn
child exists and then immediately following clearance, attempt to
notify an adult relative or friend of the expectant mother by the
most practical means.
(a)
The person taking the expectant mother into custody shall continue
such attempt until an adult relative or friend is notified, or the
expectant mother is delivered to a Department worker, whichever occurs
first.
(b)
If the expectant mother is delivered to the Department worker
before an adult relative or friend is notified, the Department worker,
or another person at his or her direction, shall continue the attempt
to notify until an adult relative or friend of the expectant mother
is notified.
(3)
Taking into custody is not an arrest except for the purpose of determining
whether the taking into custody or the obtaining of any evidence is
lawful.
E.
Release or delivery of an expectant mother from custody.
(1)
The Department worker shall review the need to hold the expectant
mother in custody and shall make every effort to release the expectant
mother from custody. The Department worker shall base his or her decision
as to whether there is probable cause to:
(a)
Believe that the expectant mother is within the jurisdiction
of the Court;
(b)
Believe that if the expectant mother is not held, there is a
substantial risk that the physical health of the unborn child, and
of the child when born, will be affected or endangered by the expectant
mother's lack of self-control in the use of alcohol beverages, controlled
substances or controlled substance analogs; and
(c)
Believe that the expectant mother is refusing or has refused
to accept any alcohol or other drug abuse services offered to her
or is not making or has not made a good-faith effort to participate
in any alcohol or other drug abuse services offered to her.
(d)
A person taking an expectant mother of an unborn child into
custody shall make every effort to release the expectant mother to
an adult relative or friend of the expectant mother after counseling
or warning the expectant mother as may be appropriate or, if an adult
relative or friend is unavailable, unwilling or unable to accept the
release of the expectant mother, the person taking the expectant mother
into custody may release the expectant mother under the expectant
mother's own supervision after counseling or warning the expectant
mother as may be appropriate.
(2)
If the expectant mother is not released under Subsection E(1)(d), the person who took the expectant mother into custody shall arrange in a manner determined by the Department and law enforcement agencies for the expectant mother to be interviewed, and shall make a statement, in writing, with supporting facts of the reasons why the expectant mother was taken into physical custody and shall give the expectant mother a copy of the statement in addition to giving a copy to the Department worker. When an expectant mother is interviewed by a Department worker, the worker shall inform the expectant mother of her right to counsel.
(3)
If the unborn child or expectant mother is believed to be suffering
from a physical condition which requires either prompt diagnosis or
prompt treatment, the person taking the expectant mother into physical
custody, the Department worker or other appropriate person shall deliver
the expectant mother to a hospital or appropriate medical facility.
(4)
If the expectant mother is believed to be mentally ill, drug dependent
or developmentally disabled, and exhibits conduct which constitutes
a substantial probability of physical harm to herself or others, or
a substantial probability of physical impairment or injury to the
expectant mother exists due to the impaired judgment of the expectant
mother, the person taking the expectant mother into physical custody,
the Department worker or other appropriate person shall proceed with
the procedures for an emergency detention of the expectant mother.
(5)
If the expectant mother is believed to be an intoxicated person who
has threatened, attempted or inflicted physical harm on herself or
on another and is likely to inflict such physical harm unless committed,
or is incapacitated by alcohol and/or drugs, the person taking the
expectant mother into physical custody, the Department worker or other
appropriate person shall proceed with procedures to prevent and control
alcoholism, addiction, or dangerous alcohol and/or drug use.
(6)
If an expectant mother is held in custody, the Department worker
shall notify the expectant mother and the unborn child's guardian
ad litem of the reasons for holding the expectant mother in custody,
the time and place of the temporary physical custody hearing, the
nature and possible consequences of that hearing, and the right to
present and cross-examine witnesses at the hearing.
(7)
The criteria for holding the expectant mother of an unborn child
in custody specified in this section shall govern the decision of
all persons responsible for determining whether the action is appropriate.
F.
Places where an expectant mother may be held in nonsecure custody.
(1)
An adult expectant mother of an unborn child held in physical custody
may be held in any of the following places:
G.
Temporary custody hearing for an expectant mother in custody.
(1)
If an expectant mother of an unborn child who has been taken into
custody is not released, a hearing to determine whether the expectant
mother shall continue to be held in custody shall be conducted by
the judge within 48 hours of the expectant mother being taken into
custody, excluding Saturdays, Sundays and legal holidays.
(2)
By the time of the hearing, a petition shall be filed. Upon filing
of the petition, the Court shall appoint counsel to the expectant
mother.
(3)
If no hearing has been held within those 48 hours, excluding Saturdays,
Sundays and legal holidays, or if no petition or statement has been
filed at the time of the hearing, the expectant mother shall be released.
(4)
If no petition has been filed by the time of the hearing, an expectant
mother of an unborn child may be held in custody with the approval
of the judge for an additional 72 hours after the time of the hearing,
excluding Saturdays, Sundays and legal holidays, only if, as a result
of the facts brought forth at the hearing, the judge determines that
probable cause exists to believe that there is a substantial risk
that if the expectant mother is not held, the physical health of the
unborn child, and of the child when born, will be affected or endangered
by the adult expectant mother's lack of self-control in the use of
alcohol beverages, controlled substances or controlled substance analogs,
and to believe that the expectant mother is refusing or has refused
to accept any alcohol or other drug abuse services offered to her
or is not making or has not made a good-faith effort to participate
in any alcohol or other drug abuse services offered to her.
(5)
The expectant mother may waive the hearing under this section. After
any waiver, a hearing shall be granted at the request of any interested
party.
H.
All orders to hold an expectant mother of an unborn child in custody
shall be in writing, listing the reasons and criteria forming the
basis for the decision.
I.
An order to hold an expectant mother in custody remains in effect
until a dispositional order is granted or a consent decree is entered
into, the petition is withdrawn or dismissed, or the order is modified
or terminated by further order of the Court.
J.
Procedures and time lines for filing the petition and subsequent hearings shall follow §§ 278-35 through 278-43, except for the following:
(1)
The subject matter and any related findings and placement considerations
for children abandoned, or alleged abuse or neglect shall not apply
and be based on the unborn child of an expectant mother adjudged in
need of protection or services. The subject matter, evidence and findings
for jurisdiction in this subsection shall only relate to whether there
is a substantial risk that the physical health of the unborn child,
and the of the child when born, will be seriously affected or endangered
due to the expectant mother's lack of self-control in the use of alcohol
beverages, controlled substances or controlled substance analogs,
unless the expectant mother is taken into custody.
(2)
Prior to the commencement of the hearing, the expectant mother and
the unborn child's guardian ad litem shall be informed by the Court
of the allegations that have been made or may be made, the nature
and possible consequences of this hearing as compared to possible
future hearings, the right to confront and cross-examine witnesses,
and the right to present witnesses.
(3)
If the expectant mother is not represented by counsel at the hearing
and the expectant mother is continued in custody as a result of the
hearing, the expectant mother may request through counsel subsequently
appointed or retained or through a guardian ad litem that the order
to hold the expectant mother in custody be reheard. If the request
is made, a rehearing shall take place as soon as possible. Any order
to hold the expectant mother in custody shall be subject to rehearing
for good cause, whether or not counsel was present.
(4)
Amendment of order. An order imposing restrictions on an expectant
mother of an unborn child may at any time be amended, with notice,
so as to place the expectant mother in another form of custody for
failure of the adult expectant mother to conform to the conditions
originally imposed.
(5)
Disposition. Disposition of the unborn child of an expectant mother
adjudged in need of protection or services.
(a)
If the judge finds that the unborn child of an expectant mother
is in need of protection or services, the judge shall enter an order
deciding one or more of the dispositions of the case as provided in
this section under a care and treatment plan, except that:
[1]
The order may not place any expectant mother of an unborn child
not specifically found to be mentally ill in a facility that exclusively
treats those categories of individuals; and
[2]
The Court may not place any expectant mother of an unborn child
in need of protection or services outside of the expectant mother's
home unless the Court finds that the expectant mother is refusing
or has refused to accept any alcohol or other drug abuse services
offered to her or is not making or has not made a good-faith effort
to participate in any alcohol or other drug abuse services offered
to her.
(b)
If the judge finds that the unborn child of a child expectant
mother is in need of protection or services, the judge shall enter
an order deciding one or more of the dispositions of the case under
a care and treatment plan.
(c)
The dispositions under this section are as follows:
[1]
Counseling. Counsel the expectant mother.
[2]
Supervision. Place the expectant mother under supervision of
the Department, a department of the Tribe, if the Department approves,
or a suitable adult, including an adult relative or friend of the
expectant mother, under conditions prescribed by the judge, including
reasonable rules for the expectant mother's conduct, designed for
the physical well-being of the unborn child. An order under this subsection
may include an order to participate in mental health treatment, anger
management, individual or family counseling or prenatal development
training or education and to make a reasonable contribution, based
on ability to pay, for the cost of those services.
[3]
Placement. Designate one of the following as the placement for
the expectant mother:
[4]
Special treatment of care. If the expectant mother is in need
of special treatment or care, as identified in an evaluation and the
Court report, the judge may order the expectant mother to obtain the
special treatment or care. If the expectant mother fails or is financially
unable to obtain the special treatment or care, the judge may order
an appropriate agency to provide the special treatment or care. If
a judge orders a tribal department to provide special treatment or
care, the provision of that special treatment or care shall be subject
to conditions. An order of special treatment or care under this subsection
may not include an order for the administration of psychotropic drugs.
[5]
Alcohol or drug treatment or education.
[a]
The report prepared recommends that the expectant
mother is in need of treatment for the use or abuse of alcohol beverages,
controlled substances or controlled substance analogs and its medical,
personal, family or social effects, the Court may order the expectant
mother to enter an outpatient alcohol and other drug abuse treatment
program at an approved treatment facility.
[b]
The report prepared recommends that the expectant
mother is in need of education relating to the use of alcohol beverages,
controlled substances or controlled substance analogs, the Court may
order the expectant mother to participate in an alcohol or other drug
abuse education program approved by the Court.
[6]
Inpatient alcohol or drug treatment.
[a]
If, based on an evaluation and the Court report,
the judge finds that the expectant mother is in need of inpatient
treatment for her lack of self-control in the use of alcohol, controlled
substances or controlled substance analogs, that inpatient treatment
is appropriate for the expectant mother's needs and that inpatient
treatment is the least restrictive treatment consistent with the expectant
mother's needs, the judge may order the expectant mother to enter
an inpatient alcohol or other drug abuse treatment program at an inpatient
facility.
[7]
Services for child when born. If it appears that the unborn
child may be born during the period of the dispositional order, the
judge may order that the child, when born, be provided any services
or care that may be ordered for a child in need of protection or services.
(d)
Amended order upon birth of child. An order of the Court may
be amended or extended for an additional six-month term upon the birth
of the child if it is found to be appropriate by the Court.
A.
Procedure for surrender.
(1)
Any parent may surrender custody of an infant who is 30 days old
or younger to a surrender provider.
(2)
Parents must surrender an infant to a person who is an authorized
surrender provider and may not leave the infant without a provider
physically being present.
(3)
If a parent who wishes to relinquish custody of his or her infant
under this subsection is unable to travel to a sheriff's office, police
station, fire station, hospital, or other place where a law enforcement
officer, emergency medical services practitioner, or hospital staff
member is located, the parent may dial the telephone number 911 or,
in an area in which the telephone number 911 is not available, the
number for an emergency medical service provider, and the person receiving
the call shall dispatch a law enforcement officer or emergency medical
services practitioner to meet the parent and take the child into custody.
B.
Authorized infant surrender providers. An infant shall be surrendered
to one of the following:
(1)
Law enforcement officer; and
(2)
Law enforcement staff; staff must be present at the law enforcement
center during business hours, 8:00 a.m. to 4:30 p.m.;
(3)
Emergency medical services practitioner;
(4)
Clinic staff member;
(5)
Hospital staff;
(6)
Emergency dispatcher;
(7)
Social worker;
(8)
Clergy.
C.
Responsibilities of infant surrender providers.
(1)
Reasonably believes infant to be 30 days old or younger.
(2)
Parent surrendering must not express an intent to return for the
infant.
(3)
Any authorized provider shall take any action necessary to protect
the health and safety of the surrendered infant.
(4)
Providers shall, immediately after taking the child into custody,
contact and provide notice to the Department of the surrendered infant.
(5)
Providers shall make available to the parent who surrenders the infant
the maternal and child health toll-free telephone number maintained
by the Department under 42 U.S.C. § 705(a)(5)(E).
D.
Anonymity and confidentiality.
(1)
Except as provided in this section, a parent of a surrendered infant
and any person who assists the parent in that surrender shall have
the right to remain anonymous. The exercise of that right shall not
affect the manner in which a provider performs his or her duties under
this section.
(2)
No person may induce or coerce or attempt to induce or coerce a parent
or person assisting a parent who wishes to remain anonymous into revealing
his or her identity, unless the person has reasonable cause to suspect
that the child has been the victim of abuse or neglect or that the
person assisting the parent is coercing the parent into surrendering
custody of the infant.
(3)
A parent who surrenders an infant and any person who assists the
parent in that surrender may leave the presence of the provider who
took custody of the surrendered infant at any time, and no person
may follow or pursue the parent or person assisting the parent, unless
the person has reasonable cause to suspect that the surrendered infant
has been the victim of abuse or neglect or that the person assisting
the parent has coerced the parent into surrendering the infant.
(4)
No officer, employee, or agent of the Tribe may attempt to locate
or ascertain the identity of a parent who surrenders an infant under
this section or any person who assists the parent in that surrender,
unless the officer, employee, or agent has reasonable cause to suspect
that the surrendered infant has been the victim of abuse or neglect
or that the person assisting the parent has coerced the parent into
surrendering the infant.
(5)
Any person who obtains any information relating to the surrendering
of an infant under this section shall keep that information confidential
and may not disclose that information, except to the following persons:
(a)
The birth parent, if the birth parent has waived his or her
right to remain anonymous, or the adoptive parent of the surrendered
infant, if the surrendered infant is later adopted.
(b)
Appropriate staff of the Department that is providing services.
(c)
An attending physician for purposes of diagnosis and treatment.
(d)
The foster parent or other person having physical custody of
the surrendered infant if the information relates to the health and
safety of the infant.
(e)
The Court conducting proceedings relating to temporary custody,
proceedings relating to a petition and disposition proceedings, the
Prosecutor or the guardian ad litem representing the interests of
the surrendered infant in those proceedings.
E.
Immunity from liability.
(1)
Any parent who surrenders his or her infant and any person who assists
the parent in that surrender are immune from any civil or criminal
liability for any good-faith act or omission in connection with that
surrender. The immunity granted under this subsection includes immunity
for exercising the right to remain anonymous, the right to leave at
any time, and the right not to accept any information, and immunity
from prosecution for abandonment or neglect.
(2)
Any provider who takes a surrendered infant into custody is immune
from any civil liability to the surrendered infant's parents, or any
criminal liability for any good-faith act or omission occurring solely
in connection with the act of receiving custody of the surrendered
infant from the parents, but is not immune from any civil or criminal
liability for any act or omission occurring in subsequently providing
care for the surrendered infant.
(3)
In any civil or criminal proceeding, the good faith of a person specified
above is presumed. This presumption may be overcome only by clear
and convincing evidence.
F.
Tribal enrollment procedure for surrendered infant.
(1)
The Department may use identity information disclosed above for enrollment
purposes only.
(2)
Create an affidavit attesting who the parent is how information obtained.
(3)
Department may request Certificate of Indian Blood (CIB) from the
Enrollment Department. The Department but shall not relay any information
that may disclose the purpose of request.
(4)
The Department shall provide the affidavit, CIB, and a draft enrollment
order to the Chief Justice of the Court.
(5)
After an infant is adopted, the Department provides the order to
enroll, amended birth certificate, social security card, and the adoption
order to the Enrollment Department.
A.
In any proceeding alleging a child in need of protection and services
under this chapter resulting from a report submitted pursuant to this
chapter, or in any proceeding in which the report or any part of its
contents is sought to be introduced in evidence, the report or its
contents or any facts related thereto or to the condition of the child
who is the subject of the report shall not be subject to a physician-patient
privilege or similar privilege, rule or law against disclosure.
B.
Any person reporting an instance of suspected child abuse or neglect,
or participating in a judicial proceeding brought as a result of a
report submitted pursuant to this chapter shall be presumed to be
acting in good faith and shall be immune from civil or criminal liability,
unless a finding is made that the person acted in bad faith or with
malicious purpose.
A.
When a parent cannot be served pursuant to the Menominee Rules of
Civil Procedure, the Court shall issue an order of publication to
comply with those rules. After service by publication has been completed
and the parent(s), guardian(s) or caretakers(s) still fails to appear,
the Court shall conduct a provisional hearing, which shall enter an
interlocutory order of the following:
(1)
Make findings on the allegations of the petition declaring the child
dependent;
(2)
Determine legal custody and placement of the child;
(3)
Determine appropriate services for the child;
(4)
Continuing efforts by the Department to notify the parent(s), guardian(s)
or caretakers(s) of the proceedings.
B.
The interlocutory order shall remain in effect for no longer than
six months and if the parent(s), guardian(s) or caretakers(s) still
fails to appear within that period, the interlocutory order shall
become a final judgment and proceed to disposition pursuant to this
chapter.
C.
The Court shall conduct the proceedings pursuant to adjudication
and disposition proceedings under this chapter upon the parent(s),
guardian(s) or caretakers(s) presence at the final hearing or pursuant
to a voluntary waiver of notice and appearance at any time during
the proceedings.
