[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Short Title. This Code shall be entitled "The Revised Children's
Code."
(b)
Purpose. The Children's Code shall be liberally interpreted and construed
to fulfill the following expressed purposes:
(1)
To provide for the welfare, care and protection of the children
and families within the jurisdiction of the Grand Traverse Band of
Ottawa and Chippewa Indians;
(2)
To preserve the unity of the family, preferably by separating
the child from his or her parents only when necessary;
(3)
To take such actions that will best serve the spiritual, emotional,
mental, and physical welfare of the child and the best interest of
the Tribe to prevent the abuse, neglect and abandonment of children;
(4)
To provide a continuum of services for children and their families
from prevention to residential treatment, with emphasis whenever possible
on prevention, early intervention and community based alternatives;
(5)
To secure the rights of and ensure fairness to the children,
parents, guardians, custodians and other parties who come before the
Children's court under the provisions of this Code;
(6)
To provide procedures for intervention in state court procedures
regarding Indian children and for transfer of jurisdiction over Indian
children from state and other tribal courts to this Tribal Court;
(7)
To ensure compliance with all applicable federal laws and to
provide a reasonable means by which cross- jurisdictional judgments
and orders may be enforced with full faith and credit.
(8)
To recognize and acknowledge the tribal customs and traditions
of the Grand Traverse Band regarding child-rearing;
(9)
To preserve and strengthen the child's cultural and identity
whenever possible and to protect the sovereignty of the Grand Traverse
Band of Ottawa and Chippewa Indians.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, as enacted by Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603,
enacted by Tribal Council on March 29, 2006; and amended by Tribal
Council motion, enacted on July 27, 2016.]
As used in this Code:
(a)
"Adult": A person 18 years of age or older or a person under the
age of 18 who has been emancipated by order of a court of competent
jurisdiction.
(b)
"Aggravated Circumstances": Incidents of abuse or neglect perpetrated
upon a child which demonstrate such depraved indifference to the health
and wellbeing of children, and the community's standards for the care
of children, that reunifications efforts are deemed inappropriate
and termination of parental rights may be immediately sought by petition.
Aggravated circumstances shall include: the use of a weapon in an
act of child abuse, abandonment of a child, addiction at birth, conviction
of homicide, sexual abuse of a child or physical abuse which results
in permanent injury to, the maiming or death of a child.
(c)
"Anishinaabek Family Service": The Tribal agency responsible for
administering the protective services provided for in this Children's
Code, including but not limited to, investigating reports of abuse
or neglect, planning and implementing reunification efforts, placement,
monitoring family progress, permanency planning and serving as the
representative services agency of the GTB government in all actions
involving member children within other jurisdictions.
(d)
"Best Interests of the Child": As used in this Code, the sum total
of the following factors to be considered, evaluated, and determined
by the Court:
(1)
The love, affection, and other emotional ties existing between
the parties involved and the child.
(2)
The capacity and disposition of the parties involved to give
the child love, affection, and guidance and to continue the education
and raising of the child in his or her religion or creed, if any.
(3)
The capacity and disposition of the parties involved to provide
the child with food, clothing, medical care or other remedial care
recognized and permitted under the laws of this Tribe in place of
medical care, and other material needs.
(4)
The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(5)
The permanence, as a family unit, of the existing or proposed
custodial home or homes.
(6)
The moral fitness of the parties involved including the criminal
history of any person living in the same household as the minor child.
(7)
The mental and physical health of the parties involved.
(8)
The home, school, and community record of the child.
(9)
The reasonable preference of the child, if the Court considers
the child to be of sufficient age to express preference.
(10)
The willingness and ability of each of the parties to facilitate
and encourage a close and continuing parent-child relationship between
the child and the other parent or the child and the parents.
(11)
Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(12)
Any other factor considered by the Court to be relevant to a
particular child custody dispute.
(13)
The willingness to provide the child with a strong cultural
identity and to expose the child to the customs, values and mores
that may form the child's cultural.
(e)
"Child": A person under the age of 18 who has not been emancipated
by order of a court of competent jurisdiction.
(f)
"Child Abuse": Includes but is not limited to:
(1)
Any case in which:
(A)
The death of a child has occurred due to, or a child exhibits
evidence of, skin bruising, bleeding, malnutrition, failure to thrive,
burns, fractures of any bone, head or spinal injury, soft tissue swelling;
and
(B)
Such condition is not reasonably explainable as due to accident
or illness; or medically deemed not likely to be the result of an
accident or illness; and
(2)
A child is or has been subjected to sexual assault, sexual molestation,
sexual exploitation, sexual contact, or prostitution or exposure to
other sexually inappropriate behavior of an adult in the presence
of a child.
(3)
A child is, or may be placed at risk of sexual assault, molestation,
contact or sexually inappropriate contact by prolonged or unrestricted
contact with a person who has been convicted of a crime of sexual
misconduct.
(4)
The gross or intentional neglect of child's basic needs including
but not limited to the provision of food, clothing, shelter, medical
care and education to the degree that the child's development has
been or is likely to be significantly adversely affected, or in which
a child manifests severe physical or emotional pathology as a direct
result of prolonged or severe neglect.
(5)
Children are left without proper supervision for prolonged periods
or in conditions or in a manner resulting in or likely to result in
physical harm to the child.
(g)
"Child Born Out Of Wedlock": A child conceived and born to a woman
who is unmarried from the conception to the birth of the child, or
a child determined to have been conceived or born during a marriage
but who is not the issue of that marriage, or a child who has not
been legally adopted by any person.
(h)
"Child Neglect": Includes, but is not limited to, Intentional or
unintentional negligent treatment or maltreatment of a child, by act
or omission, by any person including one who is responsible for the
child's health, welfare and/or safety under circumstances which indicate
that the child is at risk for physical, emotional or developmental
harm.
(i)
"Custodial Interference": Any action which obstructs the reasonable
exercise of dominion and control over the life of child by that child's
lawful custodian.
(j)
"Custody": Dominion and control over the daily life of a child conducted
in the best Interests of the child.
(k)
"Dependent Child" is one:
(1)
For whom no adult person has the legal authority and responsibility
to assume care and control over the child and to provide the basic
necessities of food, clothing, shelter and a healthy environment in
which to develop.
(2)
Who has suffered or is likely to suffer physical, emotional
or developmental harm inflicted by other than accidental means.
(3)
Who has been deprived of adequate food, clothing, shelter, medical
care, education, or supervision necessary for his or her health and
well-being. The fact that some person is providing adequate food,
clothing, shelter, medical care, education, or supervision necessary
for the health and well-being of a child, shall not be a defense to
allegations of neglect unless such care was arranged for by the Respondent
for a time certain.
(4)
Whose parent has or had a reasonable opportunity to prevent
child abuse or neglect and failed to do so, or is or has been in the
care and control of any adult person who knew or should have known
of a significant risk of harm to a child and intentionally failed
to protect that child from harm;
(5)
Who has committed delinquent acts as a result of parental pressure,
guidance, approval or failure to properly supervise;
(6)
Who has been sexually abused and/or who has been exposed to
age inappropriate sexual conduct, sexually explicit materials including
but not limited to all media products and objects;
(7)
Who is born addicted to alcohol, cocaine or any other controlled
substance or who substantially manifests symptoms or physical and/or
developmental effects of such addition within the first 90 days of
life;
(8)
Whose parents are separated or divorced and no court of competent
jurisdiction has issued a temporary custody and support order;
(9)
Whose parent custodian, or guardian has been convicted of a
violent felony or sexual crime against children or a family member.
(10)
Whose parent custodian or guardian has been convicted of a crime
or series of crimes that are of a nature which demonstrates an inability,
unwillingness and/or unfitness to adequately parent the child and
protect the child from harm.
(11)
A child who has been subjected to ongoing violence In the home
whether or not directed toward the child.
(l)
(Reserved)
(m)
"Controlled Substance": A controlled substance as defined now or
hereafter by the Public Acts of Michigan. Currently such controlled
substances are defined by Act No. 368 of the Public Acts of 1978,
as amended, being Sections 333.7101 to 333.7544 of the Michigan Compiled
Laws, including methcathinone ("cat").
(n)
"Court" or "Children's Court": The Court of the Grand Traverse Band
of Ottawa and Chippewa Indians asserting jurisdiction over matters
involving children.
(o)
"Custodian": A person other than a parent or guardian, to whom legal
custody of the child has been sanctioned by a court of competent jurisdiction.
(p)
"Dependency": A determination made by a court of competent jurisdiction
after a hearing, that a child is at risk of, or has been subject to
child abuse or neglect as defined in this Code.
(q)
"Domestic violence": Any act or acts of physical, sexual or emotional
abuse, assault, threats, intimidation, unreasonable economic deprivation,
stalking, harassment, public embarrassment, sexual coercion perpetrated
by one family member against another, whether or not residing within
the same household, however for purposes of this Code, all members
of a household shall be considered "family members."
(r)
"Domicile": The usual and common residence of person defined by a
clear intent to maintain residency continuously despite any periodic
physical absence from the home. The domicile of a child is presumed
to be that of the custodial parent, legal guardian or custodian.
(s)
"Extended Family": A person who is the child's grandparent, aunt,
uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first, second cousin, or stepparent.
(t)
"Father": A man legally married to the mother of a child at any time
from a child's conception to the minor's birth; or
(1)
A man who legally adopts a child; or
(2)
A man whose paternity has been established in one of the following
ways within time limits, when applicable, set by the Court pursuant
to this chapter:
(A)
The man joins with the mother of the child and acknowledges
the child as his child in a writing, executed and acknowledged by
them in the same manner provided by law for the execution and acknowledgement
of ex parte court orders and recorded at any time during the child's
lifetime in the office of the Tribal Court or in any other court of
competent jurisdiction.
(B)
The man signs a declaration of paternity upon the birth of the
child or the man and the mother file a joint, written request for
a correction of the certificate of birth to name the declarent man
as the child's father, and such a revised birth certificate is issued.
(C)
The biological father has abandoned a child and a man has held
himself out as the father of the child and substantially fulfilled
parental responsibilities during the course of the child's life; or
both a man and a child of at least eight years of age have maintained
a mutually acknowledged relationship of parent and child.
(D)
A man, who by order of filiation, or by biological proof of
paternity, is determined to be the father of the child in any court
of competent jurisdiction.
(u)
"Guardian": A person assigned by a court of competent jurisdiction,
other than a parent, having the duty and authority to provide care
and control of a child as set forth in § 128 of this Code.
(v)
"He/His": The use of he/his means he or she, his or her, child/children,
and singular includes plural.
(w)
"Immediate Family": Parents, stepparents, siblings, half-siblings.
(x)
"Indian": Any member of a federally recognized Indian tribe, band
or community, or Alaska Natives, any member of an historic tribe or
band recognized by the GTB or the State of Michigan or a person acknowledged
by the community to be a Native American.
(y)
"Indian Child": A child who is a member of a tribe or band that is
acknowledged to exist as a tribe or band by the United States, the
Secretary of the Interior or a member of an historic tribe or band
recognized by the State of Michigan. A child who is eligible for such
membership who is the natural child of at least one parent who is
an Indian as defined herein.
(z)
"Least Restrictive Alternative": A placement alternative which creates
the least disruption, upheaval or adverse effects upon the child and
family; when considering the best interests of the child, for obtaining
the objectives of the Court and this Code.
(aa)
"Legal Custodian": One who by maternity, paternity or valid
Order of a Court of competent jurisdiction has custody and control
over a minor child.
(bb)
"Minor": A person less than 18 years of age.
(cc)
"Multidisciplinary Team": A team established to assist in the
prosecution of sexual and physical abuse cases.
(dd)
"Parent": A person who is legally responsible for the control
and care of a child, including a natural or adoptive parent, a legal
guardian or custodian; excluding persons whose parental rights have
been terminated and/or a father whose paternity has not been acknowledged
or established as provided for in this Code.
(ee)
"Parental Rights": Legal rights attached to and associated with
parenthood and all attendant responsibilities, duties and obligations
including, but not limited to:
(1)
Care, custody, maintenance and protection. Parent has the right
to lawfully provide for a child's care, custody, maintenance and protection
according to his/her own beliefs, customs and values so long as the
child is not placed at risk of physical, emotional or developmental
harm.
(2)
Adequate guidance. It is presumed that parental guidance is
given in good faith and in the best interest of the child. This presumption
may only be rebutted by clear and convincing evidence that guidance
provided to a child has directly resulted in physical, emotional or
developmental harm to the child,
(3)
Right to discipline. Parent has right to correct the child by
reasonable and timely punishment, including corporal punishment which
must be corrective and not punitive and may not result in physical
injury to the child. Deprivation of basic needs such as food, shelter,
education, medical care or clothing shall not be considered lawful
punishment.
(4)
Control of education. Parents may educate children as they see
fit so long as the child's intellectual development is age appropriate
and meets minimum community standards for academic progress.
(5)
Religious training. The religious training of minor children,
or lack of it, is a matter solely within the parent's discretion.
(6)
The right to a child's services and earnings so long as the
child is not exploited.
(ff)
"Parental Kidnapping": The act of a non-custodial parent denying
or causing the denial of dominion and control over a child by one
lawfully charged with custody of that child. The act of a non-custodial
parent to remove a child from the jurisdiction of the Court which
rendered or is in the process of rendering a custody or placement
determination.
(gg)
"Parenting Time": Scheduled times in which a Respondent and
other approved family members may engage in interaction with a child
who has been removed from his or her domicile pursuant to this Code.
(hh)
"Party in Interest": In any court action pursuant to this Code,
the Petitioner, the Respondent and the Child(ren) who are the subject
of any legal proceeding arising from enforcement of this Code.
(ii)
"Permanency Plan": A plan for long-term placement and care of
a child who has been adjudicated Dependent under the provisions of
this Code and has remained in protective placement for a period of
time that would indicate that long-term or permanent placement and
care are in the best interests of the child.
(jj)
"Petitioner": The person, agency or entity seeking relief or
remedy under the provisions of this Code.
(kk)
"Presenting Officer": The Tribal prosecuting attorney or an
assistant Tribal prosecuting attorney who represents the Tribe in
all matters related to this Code and the Indian Child Welfare Act
25 U.S.C. § 1901 et seq.; or one charged by the Chief Judge
of Tribal Court to present cases involving abuse and neglect to the
GTB Children's Court for adjudication and to represent the interests
of GTB in court cases involving GTB member families.
(ll)
"Protective Placement": Provision of residence for a child outside
of the child's domicile intended to be temporary pending investigation
or adjudication of allegations of Child abuse or neglect as defined
herein.
(mm)
"Protective Services Worker": The protective services worker,
social services worker, law enforcement personnel or any person who
performs the duties and responsibilities set forth in § 110
of this Code.
(nn)
"Reasonable Efforts": The mandated responsibility of GTB to
provide individually specific services in support of reunification
which are conducive to altering individual and family behaviors and
attitudes that pose a risk to children. Services should, whenever
possible, be culturally specific and always remedial in intent.
(oo)
"Respondent": The person or persons alleged to have violated
provisions of this Code.
(pp)
"Reunification": The preferred goal of remedial plans to eliminate
or alleviate circumstances within family life that may cause or contribute
to a risk of physical, emotional or developmental harm to the child.
(qq)
"Reunification Plan": The plan for the provision of services,
participation and compliance by parties in interest, placement, parenting
time and other relevant factors that are reasonably designed to facilitate
the eventual reunification of a family under provisions of this Code
or to prevent the breakup of a family under provisions of this code.
(rr)
"Six-County Primary Service Area": The U.S. Department of Interior's
administrative designation of Charlevoix, Antrim, Grand Traverse,
Leelanau, Benzie and Manistee Counties as the Grand Traverse Band's
primary service area.
(ss)
"Termination of Parental Rights": A judgment by a court of competent
jurisdiction that, after trial and deliberation, it is in the best
interest of a child to permanently terminate a respondent's legal
rights to custody and control over the child and to permanently place
the child in the custody and care of a person or entity suited to
assume the parental responsibilities of custody and care of a child,
(tt)
"Tribal Council": The elected governing body, exercising the
legislative and executive powers, of the Grand Traverse Band of Ottawa
and Chippewa Indians as set forth in the GTB Constitution.
(uu)
"Tribal Court": The Tribal Court of the Grand Traverse Band
of Ottawa and Chippewa Indians. A court of general jurisdiction functioning
within the Tribal Judiciary, the Appellate Court functioning within
the Tribal Judiciary, the judicial branch of the Grand Traverse Band
government as set forth in the GTB Constitution.
(vv)
"Tribe": The Grand Traverse Band of Ottawa and Chippewa Indians.
(ww)
"Tribal Lands": Lands owned by the Grand Traverse Band of Ottawa
and Chippewa Indians; lands owned by the United States of America
in Trust for the Grand Traverse Band of Ottawa and Chippewa Indians;
lands within the exterior boundaries of the Grand Traverse Band; and
Indian Country as defined in 18 U.S.C. § 1151.
(xx)
"Ward": A child who has been adjudicated a dependent child,
over whom the Tribal Court has jurisdiction. A dependent child is
a temporary ward of the Court until the time the case is dismissed
and/or jurisdiction terminates. In cases where parental rights are
terminated, the child becomes a permanent ward of Tribal Court.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Children's Court. There is for the Grand Traverse Band of Ottawa
and Chippewa Indians, a court known as the Children's Court within
the GTB judiciary. The jurisdiction of the Children's Court is civil
in nature and retains the right to issue all orders and judgments
necessary to insure the safety, well-being and best interests of children
living within the GTB service areas. The Children's Court is empowered
to enforce subpoenas and orders of restriction, fines, contempt, confinement
and other orders as appropriate.
(b)
General Jurisdiction. The Children's Court is empowered to enforce
the valid judgments and orders of the Courts of the State of Michigan
and other jurisdictions pursuant to MCLA 722.1100 et seq. and MCR
2.615.
(c)
The Children's Court is empowered to assert jurisdiction over the
following persons:
(1)
An enrolled member of the Tribe or one eligible for enrollment
who is under the age of 18 years, residing within the GTB's six county
primary service area and their family.
(2)
Children who have come under the jurisdiction of a court outside
that of the GTB Children's Court and whose cases have been transferred
to Tribal Court; or those in which the Tribe has intervened or asserted
rights pursuant to the applicable provisions of the Indian Child Welfare
Act, 25 U.S.C. § 1901 1963, the Uniform Child-Custody Jurisdiction
and Enforcement Act, MCL 722.1101, the Adoption and Safe Families
Act 42 U.S.C. § 671 et seq. and the Parental Kidnapping
Prevention Act, 28 U.S.C. § 1738A.
(A)
Exceptions: The application of specific time lines; placement
requirements, foster care regulation and licensing, adoption procedures
and permanency provisions of the Uniform Child-Custody Jurisdiction
and Enforcement Act, MCL 722.1101, the Adoption and Safe Families
Act 42 U.S.C. § 671 et seq. and the Parental Kidnapping
Prevention Act, 28 U.S.C. § 1738A, not expressly deemed
applicable to Indian Tribes shall not be binding upon the GTB Children's
Court. Similar provisions contained in or implied by State statutes
shall be applicable under this Code only upon written directive of
the Chief Judge of the Tribal Court.
(3)
Child(ren) of enrolled member(s) of the Tribe or of other Indian
Tribes, as defined in § 102 of this Code, residing on Tribal
lands.
(4)
Non-Indian Child(ren): Child(ren) who is/are not an Indian child
as defined herein, but who is residing or domiciled within the jurisdiction
of the Children's Court.
(5)
Any person causing a child to come within the jurisdiction of
the Children's Court pursuant to this Code.
(6)
A person who is residing on Tribal lands of the Grand Traverse
Band who is pregnant and actively abusing alcohol or controlled substances.
(7)
The extended family residing or domiciled in the same household
of a child who comes under the jurisdiction of this Code.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Application of the Indian Child Welfare Act. The Children's Court
may apply the provisions of the Indian Child Welfare Act, 25 U.S.C.
§ 1901 et seq. that do not conflict with the provisions
of this Code. State Court procedures regarding the Indian Child Welfare
Act shall not be binding upon the Children's Court except when specifically
provided for in this Code.
(b)
GTB shall intervene in all ICWA cases involving member children and
those deemed qualified for tribal enrollment. Acceptance of Transfer
of jurisdiction to tribal court in ICWA cases shall be at the sole
discretion of a Tribal Court Judge.
(c)
Transfer to State Court or Other Tribal Court. In any proceeding
within the jurisdiction of the GTB Children's Court, the Court may
transfer the proceedings to an appropriate state or tribal court when
concurrent jurisdiction exists or upon a finding that another jurisdiction
has a significant interest in the outcome and transfer of jurisdiction
would be in the best interest of the child.
(d)
The Children's Court shall transfer jurisdiction to other jurisdictions
when required pursuant applicable provisions of MCLA 722.1100 et seq.;
the Kidnapping Prevention Act, 28 U.S.C. § 1738A or under
the UCCJA (MCL § 722.1101 et seq.) or when the Court deems
it appropriate as a matter of comity and/or full faith and credit
pursuant to MCR 2.615.
(e)
Transfer from Other Courts. The Children's Court may seek, accept
or decline transfer of jurisdiction from other jurisdictions pursuant
to applicable provisions of the UCCJA (MCL § 722.1101 et
seq.) or a judicial request so long as a determination is made for
the record that the Children's Court is empowered by this Code to
assert jurisdiction in the case proposed for transfer.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, enacted by Tribal Council in
Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603,
enacted by Tribal Council on March 29, 2006; and amended by Tribal
Council motion, enacted on July 27, 2016.]
(a)
Receipt of Notice. The presenting officer shall be the agent for
service of notice of the state court child custody proceedings, as
required by the Indian Child Welfare Act.
(b)
Intervention. The presenting officer shall file a motion to intervene
with the state court within five days of receipt of notice upon certification
by the GTB Membership Office that the child is an "Indian Child" pursuant
to the Indian Child Welfare Act. Whenever possible, the presiding
officer or a member of AFS will attend critical hearings either in
person or upon appropriate motion, telephonically.
(c)
Investigation and Pre-Transfer Report. A trained and qualified Child
Protection Worker shall investigate and assess all Notifications of
ICWA proceedings and file a written report to the presenting officer.
The presenting officer will use the report in determining levels of
intervention and whether or not to seek transfer of jurisdiction to
tribal court.
(d)
(Reserved)
(e)
Decision to Transfer. AFS Child Protection Worker shall make recommendations
to the presenting officer regarding whether or not the Tribe should
initiate transfer of jurisdiction to tribal court or to support a
Motion for Transfer from state court. When determining if and when
a Motion to Transfer Jurisdiction to Tribal Court is appropriate,
the presenting officer shall consider:
(f)
Notice to Court. If the presenting officer seeks transfer of jurisdiction
to GTB Children's Court, the presenting officer shall advise the Tribal
Court of the intent to file or support a Motion for Transfer, indicating
the County from which transfer will be sought.
(g)
Tribal Court Hearing. The Children's Court may conduct a hearing
to determine if the Court should accept transfer after a petition
for transfer has been filed with the state court or immediately upon
receipt of service of a Motion to Transfer Jurisdiction filed by any
party in interest. The Tribal Court shall consider the following factors:
(h)
The Tribal Court has sole discretion to accept or deny transfers
of jurisdiction from State courts. A Judge may accept transfer of
jurisdiction without hearing when exigent circumstances are presented
in an ex parte motion and indicate that the best interest of the child
and GTB will be clearly served best by immediate transfer of jurisdiction.
Subsequent to a hearing in State Court on a valid Motion to Transfer
Jurisdiction resulting in a ruling in favor of transfer, the Court
must make and immediate determination regarding acceptance or denial
of acceptance of jurisdiction and notify the State Court in writing
of its determination.
(i)
Motion for Transfer. A petition for Transfer of Jurisdiction generated
by the GTB presenting officer shall be filed in state court with Notice
of Filing to the Children's Court.
(j)
Hearings upon Transfer. Upon Transfer of Jurisdiction from state
court and entry of Children's Court Order of Acceptance, the Court
shall proceed in accordance with provisions of this Code within 15
days.
(k)
Transfers of Jurisdiction from other courts shall be by Petition
to the Children's Court by a party in interest and acceptance of jurisdiction
shall be determined by hearing within 10 days of date of filing.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
State Court Orders. State child custody orders involving children
over whom the Children's Court may assert jurisdiction must be enforced
whenever those orders comport with MCR 2.615, MCLA 722.1100 et seq.
and the Children's Court has conducted an independent review of such
state proceedings to determine if:
(1)
The State Court has properly assumed jurisdiction over the child;
and
(2)
The provisions of the Indian Child Welfare Act, 25 U.S.C. § 1901
1963, were properly executed; and
(3)
Due process was provided to all interested parties participating
in the state proceeding; and
(4)
The state court proceeding does not violate the public policies,
customs or common law of the tribe.
(b)
Court Orders of Other Tribal Courts. Orders of other tribal courts
involving children over whom the Children's Court may assert jurisdiction
shall be enforced by the Children's Court after the Court has determined:
(c)
Tribal Interest. Because of the vital interest of the GTB in its
member children and those children who may become members, the statutes,
regulations, public policies, customs and common law of the GTB shall
control in any Children's Court proceeding involving an Indian Child
as defined herein.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Rules of Procedure. The procedures in the Children's Court shall
be governed by the rules of procedure for the Tribal Court, not in
conflict with this Code. In the absence of Tribal Court promulgated
rules of procedure, the Michigan Rules of Civil Procedure shall be
utilized as a guide.
(b)
Cooperation and Grants. The Children's Court is authorized to cooperate
fully with any federal, state, tribal, public or private agency in
order to participate in any appropriate foster care, shelter care,
treatment or training program(s) which may be available, and to receive
grants-in-aid to carry out the purposes of this Code. This authority
is subject to the availability of funds.
(c)
Social Services. The Children's Court shall utilize such social services
as may be furnished by any tribal, federal, or state or private agency
provided that it is economically administered without unnecessary
duplication and expense.
(d)
Contracts. The Children's Court may negotiate contracts with tribal,
federal or state agencies and/or departments on behalf of the Tribal
Council for the care and placement of children before the Children's
Court subject to the availability of funds and federal laws governing
the custody and control of children.
(e)
Promulgation of Rules: The Chief Judge of the Tribal Court shall
promulgate or cause to be promulgated, and maintain the Court Rules
of Procedure which facilitate the efficient and fair execution of
this Code.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, enacted by Tribal Council in
Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603,
enacted by Tribal Council on March 29, 2006; and by Tribal Council
motion, enacted on July 27, 2016.]
(a)
Children's Court Judge. Shall preside over cases involving minor
children and their families.
(1)
Appointment. The Children's Court Judge(s) shall be appointed
in the same manner as the Tribal Court Judges.
(2)
Qualifications. The general qualifications for Children's Court
Judges shall be the same as the Tribal Court Judges.
(3)
Powers and Duties. In carrying out the duties and powers specifically
enumerated under this Code, judges of the Children's Court shall have
the same duties and powers as judges of the Tribal Court, including,
but not limited to, the contempt power, the power to issue arrest
or custody warrants, and the power to issue search warrants. The Chief
Judge shall retain the power to delegate certain administrative duties
of the Children's Court to appropriate personnel.
(4)
Disqualification or Disability. The rules of disqualification
or disability of a Children's Court Judge shall be the same as those
rules that govern Tribal Court Judges.
(b)
Presenting Officer. One charged by the Chief Judge of Tribal Court
to present cases involving abuse and neglect to the GTB Children's
Court for adjudication and to represent the interests of GTB in State
court cases involving GTB member families.
(1)
Appointment. The Children's Court Presenting Officer shall be
appointed in the same manner as the Tribal Prosecutor pursuant to
the Tribal Prosecutor's Ordinance.
(2)
Qualifications. The general qualifications for the presenting
officer shall be the same as the qualifications for Tribal Prosecutor
specified in the Tribal Prosecutor's Ordinance. The presenting officer
must have education or experience in the adjudication of ICWA cases
and be familiar with tribal court procedures.
(3)
Powers and Duties. The Tribal presenting officer shall have
the same powers and duties as the Tribal Prosecutor has in Tribal
Court. The presenting officer shall represent the Tribe in all proceedings
under this Code and the Indian Child Welfare Act. The presenting officer
or an assistant presenting officer shall serve as legal counsel for
the Anishinaabek Family Services Program.
(4)
Removal; Disqualification or Disability. The rules of removal,
disqualification or disability of the presenting officer shall be
the same as those for the Tribal Prosecutor as enumerated in the Tribal
Prosecutor's Ordinance.
(c)
Counsel for Parents, Parents may be represented at each stage of
proceedings under this Code by an attorney or lay advocate at their
own expense. Parents shall be notified of their right to representation
in all dependency and termination proceedings.
(d)
Guardians Ad Litem (GAL).
(1)
Appointment. At any stage of proceedings conducted under this
Code, the Court may appoint a guardian ad litem for the child. The
GAL may be a lawyer, or a disinterested lay advocate approved by the
Court.
(2)
Role of the Guardian Ad Litem. The duty of the guardian ad litem
is to represent and assert the best interests of the child. A child
14 years of age or older is presumed capable of determining what is
in his or her best interests and may direct the GAL accordingly. It
is the duty of the guardian ad litem to represent the child's wishes
in such cases. For children under the age of 14, the guardian ad litem
shall make a determination as to the best interests of the child regardless
of whether that determination reflects the wishes of the child. However,
the wishes of the child are always relevant and shall be weighed according
to the competence and maturity of the child and in consideration of
the child's circumstances. The GAL is required to assert the best
interests of the child and, when appropriate, the child's wishes in
all placement and reunification planning procedures.
(3)
Duties of the Guardian Ad Litem. The guardian ad litem shall
perform the following duties:
(A)
Appear at all hearings and competently and diligently represent
and assert the best interests of the child in all proceedings before
the Court;
(B)
Conduct an independent investigation, including interviewing
the child, parents, social workers, school personnel, care providers,
and other persons to properly ascertain the facts and circumstances
which are material to determining the best interests of the child;
(C)
Provide a written report of findings of best interests as defined
herein to the Court and all parties in interest regarding placement,
remedial efforts and reunification prior to dependency and termination
hearings or as ordered by the Court.
(D)
Seek specific and clear orders for evaluation and assessment
when appropriate as well as services and treatment for the child that
will advance the goal of reunification of the family whenever possible.
(E)
Monitor development and implementation of reunification plans
and court orders to determine whether plans and orders are, under
the circumstances reasonable, timely executed and are designed to
accomplish clear goals.
(F)
Assert appropriate Court action if services are in adequate
or not being made available to the child and/or the family, or if
such services are not achieving their purposes;
(G)
Identify common interests among the parties and, when possible,
promote a cooperative resolution of issues before the court;
(H)
Consult with other professionals in identifying the child's
best interests, current and future placements, and necessary services;
(I)
Advocate for the best interests of the child in mental health,
educational, juvenile justice, and other community systems when related
to the circumstances causing the child to come within the jurisdiction
of the Children's Court;
(J)
Attend training programs as recommended and provided by the
Court, Anishinaabek Family Services; and
(4)
Confidentiality. Except as otherwise directed by the Court,
All records, information, and reports prepared, acquired or received
or reviewed by Guardians ad litem are confidential and shall only
be disclosed or dispersed pursuant to this Code or other Tribal law.
(e)
Officers of the Court.
(1)
All Court Personnel and attorneys practicing before the Court
shall be considered Officers of the Court with duties of ethical and
fair conduct in all dealings with the court in accordance with the
Michigan Rules of Professional Conduct for attorneys. The Chief Judge
shall ensure that each officer of the court upholds his or her duty
to the court and that the independence and dignity of the Court is
preserved.
(2)
All GTB employees who are officers of the Court shall submit
to background checks and shall adhere to all Court policies and procedures
and shall uphold the law of the Grand Traverse Band of Ottawa and
Chippewa Indians.
(3)
Officers of the Court shall be immune from civil suit arising
from any act or omission occurring pursuant to or in execution of
their official duties as officers of the Court.
(4)
(Reserved)
(5)
Child Protective Services Worker: As described in § 110
of this Code shall be considered officers of the Court for purposes
of final oversight and immunity in all matters brought before the
Children's Court pursuant to this Code.
(6)
Investigator: Any law enforcement officer or agent who has engaged
in investigation of child abuse and neglect charges and/or assisted
in determining the grounds for a Child Dependency Petition shall be
considered officers of the court for purposes of immunity in all matters
brought before the Children's Court pursuant to this Code.
(7)
Presenting Officer: As described in this code shall be considered
an officer of the court for purposes of final oversight and immunity
in all matters brought before the Children's Court pursuant to this
Code.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
and as amended by Tribal Act #0119.996, enacted by Tribal Council
on May 16, 2001; as amended by Tribal Act #0220.1147, enacted by Tribal
Council in Special Session on August 28, 2002; as amended by Tribal
Act #05-23.1603, enacted by Tribal Council on March 29, 2006; and
by Tribal Council motion, enacted on July 27, 2016.]
(a)
The Director of AFS shall be responsible to recommend policies and
procedures for internal operations and for interactions with other
agencies to Tribal Council for approval. The Director may work in
conjunction with other departments as needed to develop and present
recommendations.
(b)
The Director shall maintain a standard of criteria for foster care
homes to satisfy in order to be licensed by the Department. The Director
or a designee shall monitor licensed foster care homes to ensure compliance
with the criteria.
(c)
Tribal Council shall convene as a critical incident/lethality review
board if a child under the care of AFS is permanently injured or killed.
Tribal Council may also convene as a lethality review board to review
the death of a minor tribal member residing in the six-county service
area.
(1)
AFS shall present a report documenting the procedural processes
of all agencies involved in the event. If Tribal Council deems it
necessary and appropriate, it may appoint an independent investigator
to present a report on all agencies involved and to make recommendations
for mitigation and prevention.
(2)
Critical incident/lethality review boards shall be presented
in a closed portion of a Tribal Council meeting.
(3)
AFS or the independent investigator shall present the report
within 30 days of receiving notice of death or critical incident.
Incidents of abuse within the GTB foster care system shall be reported
as critical incidents.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, enacted by Tribal Council in
Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Powers and Duties.
(1)
Employment. The Anishinaabek Family Services shall employ or
contract for at least one protective services worker.
(2)
Cooperation with Other Agencies. The Anishinaabek Family Services
shall cooperate with such state and community services as are necessary
to achieve the purposes of this Code. The Anishinaabek Family Services
may negotiate working agreements with other jurisdictions. Such agreements
shall be subject to ratification by the Tribal Council.
(3)
Protocol. A Protective Services Worker shall:
(A)
Receive from any source, oral or written, information regarding
a child who may meet the definition of a Dependent Child as defined
in sec. of this Code. The identity of the reporting party shall be
kept confidential.
(B)
Upon receipt of any report or information under § 110(a)(3)(A),
initiate a prompt and thorough investigation within 24 hours which
shall include a determination of the nature, extent, and cause of
any condition or circumstances which would demonstrate just cause
to bring the child(ren) under the jurisdiction of the Children's Court.
(C)
In conducting an investigation of child abuse or neglect, the
protective service worker shall seek the assistance of, and cooperate
with law enforcement officials within 24 hours after becoming aware
that one or more of the following conditions exist:
(i)
Abuse or neglect is the suspected cause of a child's
death;
(ii)
A child is the suspected victim of sexual abuse,
sexual misconduct or sexual exploitation;
(iii)
Allegations of Abuse or neglect resulting in
severe physical, mental or emotional injuries to a child which require
medical treatment For purposes of this subsection, "severe injury"
includes but is not limited to physical trauma, biological dysfunction
medically determined to be caused by the act or omission of another,
illness due to injury of undetermined origin for which abuse or neglect
is a reasonably likely cause or causative factor.
(iv)
Intervention is necessary to ensure the immediate
protection of a child, a member of a allegedly abused or neglected
child's household, the protective worker, a witness or reporting party,
or another person involved in the investigation; or
(v)
Any alleged perpetrator of the child's injury is
not a person responsible for the child's health or welfare but resides
in the same home as the child or has significant contact with the
child.
(vi)
A child has committed an act which, if the child
were an adult, would be considered a violent felony or the child demonstrates
serious substance abuse that has not been addressed under the GTB
Juvenile Code.
(D)
Emergency Removal; In removing a child from the custody of his/her
parents, legal guardian, or custodian, pursuant to § 114,
Law enforcement officials shall cooperate with social services personnel
and act to protect the child, members of the child's household and
social services personnel whenever necessary to facilitate removal
of a child into tribal custody;
(E)
During and after investigation, assess the risk to any children
remaining in the residence or domicile or those with whom the alleged
perpetrator(s) are like to have contact, and all other facts or matters
found to be material to, and probative of allegations of abuse and/or
neglect;
(F)
Substantiate and secure evidence of abuse and/or neglect and
that which supports probable cause to believe that a child; has been
abused or neglected, the identity of the perpetrator(s) and that removal
is the least restrictive means by which the safety of the child may
be secured;
(G)
Offer to the child and family appropriate available services
and assistance in obtaining services;
(H)
Within 30 days of referral or removal of a child submit a written
report of the investigation and evaluation which shall be included
in the official case files maintained by the Anishinaabek Family Services.
The report shall include a determination as to whether the report
of abuse or neglect was substantiated or unsubstantiated and disposition
of placement; and
(I)
Upon completion of investigation inform a person who initiates
a report of abuse or neglect as whether the allegations have been
substantiated or not. No other information may be imparted to a reporting
party.
(J)
Assist in developing individualized, reunification and concurrent
permanency plans which reasonably anticipate both the success and
failure and include contingency plans for each.
(K)
Assist in determining when a reunification plan has been successful
and when it has, for whatever reason, failed. When a reunification
plan has failed, provide evaluation of the plan and make remedial
recommendations as to any elements of the plan which appear to have
failed because of systemic or procedural flaws.
(4)
Cooperation of Law Enforcement Officials. Law enforcement officials
shall fully cooperate with protective services worker(s) and Anishinaabek
Family Services in conducting investigations pursuant to this section.
Law enforcement shall be responsible for identifying and securing
evidence and maintaining police procedures and the chain of custody
of such evidence.
(5)
Substance Abuse by Pregnant Woman. If a report is received alleging
abuse of alcohol or a controlled substance by a pregnant woman, protective
services workers shall arrange for appropriate assessments and offer
services. Services may include, but are not limited to, a referral
for chemical dependency assessment and treatment, pre-natal care,
and parenting classes. Protective services workers also may seek court
ordered services under § 116. Protective services workers
shall seek court ordered treatment under said § 116 if the
voluntary services are refused or fail.
(6)
In cases in which a child abuse or neglect report cannot be
substantiated, or those in which informal intervention seems most
appropriate, the protective services worker may meet informally with
all interested parties to discuss concerns and remedies with the intent
of preventing further intervention.
(b)
Limitations on Authority; Duty to Inform.
(1)
No Legal Authority. Before offering informal, preventative protective
services to a family, a child protection worker shall inform the family
that he/she has no legal authority to compel the family to accept
such services.
(2)
If Family Declines. If a family declines informal preventative
protective services, the child protection worker(s) may request authorization
from the presenting officer to initiate a Dependency petition in Children's
Court if evidence warrants such action If evidence remains insufficient
to substantiate abuse or neglect the case shall be closed.
(3)
No Limitation of Authority. Nothing in this section limits the
authority of protective services worker(s) to act in emergency situations
or to obtain a medical evaluation of the child pursuant to § 114.
(4)
Communications between family members and AFS staff shall remain
confidential. Nothing in this clause is intended to mitigate any mandated
reporter's duty to report child abuse and neglect.
[History: No § 111 was included in Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, enacted by Tribal Council in
Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603,
enacted by Tribal Council on March 29, 2006; and by Tribal Council
motion, enacted July 27, 2016.]
(a)
Duty to Report. Any person who has reasonable cause to suspect that
a child is or has been abused or neglected shall immediately make
a report to the Anishinaabek Family Services or the Tribal law enforcement
department. Those persons reporting, except those specified in § 112(b)
below, may remain anonymous.
(b)
Mandated Reporting. The following persons are specifically required
to report child abuse and neglect, and pregnant women suspected of
abusing alcohol or controlled substances:
(1)
All GTB employees, any physician, nurse, dentist, optometrist,
or any other medical or mental health care professional, including
community health representatives; school principals, school teachers,
or other school officials; social workers; child day care center workers
or other child care staff members, including GTB certified foster
parents, residential care or institutional personnel; counselors;
peace officers or other law enforcement officials. Any mandated reporter
who has reasonable cause to suspect that a child may be a the victim
of neglect or abuse shall immediately report the suspected abusive
or neglectful situation condition or circumstances to Anishinaabek
Family Services or Tribal law enforcement.
(2)
A person mandated to report under § 112(b)(1) shall
immediately report to Anishinaabek Family Services if the person knows
or has reason to suspect that a woman who is pregnant has abused alcohol
or used a controlled substance for a nonmedical purpose during pregnancy.
(3)
Within 72 hours after making the initial report, the mandated
reporter shall file a written report with law enforcement or AFS.
If the reporter is a GTB member, the staff of a clinic, hospital,
agency or school, the reporter shall notify their immediate supervisor
of the report. One report from any person, department or agency shall
be considered adequate for purposes of the reporting requirement.
No mandated reporter shall be disciplined or suffer adverse consequences
in the workplace for making a good faith report of abuse or neglect.
(c)
Immunity From Liability. All persons or agencies complying in good
faith with the provisions of this Code shall be immune from civil
liability and criminal prosecution in Tribal Court.
(d)
Abrogation of Privilege. Any legally recognized privileged communication,
except that between attorney and client, is abrogated and shall neither
constitute grounds for excusing a mandated report nor for excluding
evidence in a civil child protective proceeding resulting from a report
made pursuant to this Code.
(e)
Penalty for not Reporting. Any person mandated to report under § 112(b)
who knowingly fails to do so or who willfully prevents someone else
from doing so shall be subject to a charge of civil contempt with
a penalty of up to 90 days in jail and/or a fine of up to $5,000.
(f)
Abuse and Neglect Reporting. Abuse and neglect written reports shall
include the following information, if known:
(1)
Names, addresses, and tribal affiliation of the child and his/her
parents, guardian or custodian including enrollment numbers;
(2)
The child's age and birth date and social security number;
(3)
The nature of the suspected abuse or neglect;
(4)
Personal knowledge of previous history of abuse or neglect of
a child and/or siblings;
(5)
The name, age, and address of anyone suspected of perpetrating
abuse or neglect on a child.
(6)
The name and address of the person and/or agency making the
report.
(g)
Medical Examination.
(1)
Court Order. The Anishinaabek Family Services may, upon a showing
of good cause, request a court order for a medical evaluation of a
child pursuant to § 114 of this Code. AFS or law enforcement
is empowered to obtain an emergency medical evaluation without a court
order if the child's life or limb is seriously endangered and a court
order cannot reasonably be obtained. A medical evaluation shall be
obtained in all incidents of suspected sexual assault on a child within
24 hours or receipt of a report of such assault.
(2)
Physician's Obligation, When a child suspected of being abused
or neglected is examined by a physician, the physician shall make
all necessary medical findings, which may require physical or psychological
examinations, x-rays, photographs, laboratory studies, and other pertinent
tests and diagnostic evaluations.
(3)
Reporting Requirement. A physician shall, upon completion of
a medical evaluation, immediately report the results to the Anishinaabek
Family Services, law enforcement and the Court. A physician's written
report shall contain summaries of medical findings, results of evaluations
and a detailed report of any diagnostic tools used to reach the findings.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1,1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Jurisdiction. The Children's Court may assume jurisdiction; upon
a showing by a preponderance of the evidence, over a woman who is
or has been abusing alcohol or controlled substances during her pregnancy.
(b)
Court Order. Upon assuming jurisdiction, the Court may enter orders
requiring a pregnant woman to cease and desist any substance abuse,
submit to reasonable measures to assure her nonuse, and to engage
in community based or inpatient treatment programs and prenatal care.
Such court orders may be enforced through the Court's civil contempt
powers.
(c)
Privileged Information. Information made available pursuant to a
Children's Court order regarding a woman's drug/substance use during
pregnancy may not be used in a criminal prosecution against the woman.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Investigative Orders: Orders for Examination. The Court may, upon
a clear showing that probable cause exists to determine that a child
meets the definition of an abused or neglected child, order investigation
and discovery, including but not limited to, taking of photographs,
gathering physical evidence, and examinations or evaluations of a
child, parent, guardian or custodian, conducted by a physician, dentist,
psychologist, or psychiatrist. Such orders may be issued ex parte
under exigent circumstances.
(b)
Authority to Remove. If the Court finds probable cause to believe
a child is dependent as defined herein, and that conditions or circumstances
present a substantial risk of harm to the child's life, physical health
or mental well-being, the Court may issue ex parte orders to remove
the child from the condition or circumstances and place the child
under the protective care and custody of the GTB. The Court shall
include in such an order:
(1)
An authorization to enter a specified premises for purposes
of removing a child and to gather evidence;
(2)
To place the child in protective custody pending preliminary
hearing; and
(3)
An affidavit in support of the existence of probable cause that
a child within a specific location meets the definition of a dependent
child.
(c)
Emergency Removal Without a Court Order. A child may be taken into
protective custody without a court order by a law enforcement officer
or the Tribe's protective services worker(s) if reasonable cause exists
that a child meets the definition of a Dependent child, and:
(1)
Failure to remove the child may result in an immediate and substantial
risk of death, serious injury, or serious emotional or developmental
harm to the child; or
(2)
The parent, guardian or custodian is absent and the child will
likely be deprived of the basic necessities of life, because no alternative
arrangements for care and supervision have been made and removal is
necessary to protect the child.
(d)
Removal: 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 shall be removed.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Notice to the Children's Court. After removal of a child without
a court order, the person who removed the child shall attempt to contact
and notify the presenting officer within six hours of the actual removal.
Attempt(s) to contact and notify the presenting officer shall be documented
in the case files. Actual notice of the removal of child shall be
filed in Children's Court no later than 12:00 noon on the next official
court business day following the removal.
(b)
Notice to the Parent(s), Guardian or Custodian. The person removing
the child shall make diligent efforts to immediately notify the child's
parents, guardian or custodian, of the removal of the child. Diligent
efforts shall include personal, telephone and written contacts at
their residence, place of employment, or other locations where parents,
guardians or custodians are known to frequent. Notice shall be deemed
adequate if, after failing to locate the parent(s), guardian or custodian
within 12 hours of removal, it is served upon an extended family member.
(c)
Notice to Child's Tribe if Different than Grand Traverse Band. If
the Tribal Court asserts jurisdiction over a person who is a member
of an Indian tribe or historic band other than the Grand Traverse
Band, the Tribal Court shall immediately notify the appropriate Tribal
Court that jurisdiction has been asserted by GTB.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Council Act #0220.1147, enacted by Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Restrictions. A child alleged to be Dependent shall not be placed
in a jail or other facility intended or used for the incarceration
of adults charge with criminal offenses or for the detention of children
alleged to be juvenile offenders, nor may a child be placed in a facility
for psychiatric care, homelessness, domestic violence victims or substance
abusers unless such services are clearly indicated as an immediate
need of the child.
(b)
Placement Priorities. A child may be placed in the following community
based sheltercare facilities listed in order of preference:
(1)
Members of the child's immediate family living in a household
separate from that of the child.
(2)
Members of the child's extended family;
(3)
An Indian family of the Grand Traverse Band which is licensed
as a foster home or an Indian family otherwise authorized by law to
provide care for the child;
(4)
A facility operated by a licensed Indian child welfare services
agency; or
(5)
Any other suitable placement which meets the standards for shelter
care facilities established and so certified by the Child Protection
Team.
(c)
Removal of the Alleged Perpetrator. If an alleged perpetrator of
child abuse or neglect is identified and resides in the same household
as victim, such perpetrator may be ordered from the home until further
order of the court or the issuance of findings that allegations of
abuse or neglect cannot be substantiated.
(d)
Least Restrictive Setting. Until reunification is deemed appropriate,
a child shall be placed in the least restrictive setting which most
approximates a family environment, and in which his/her special needs,
if any, may be met. The child shall also be placed in reasonable proximity
to his/her home, taking into account any special needs of the child
and the continuity of education, and presuming that reasonable efforts
to reunify the family include parental and sibling visitation.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Council Act #0220.1147, enacted by Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Informal Conference. Anishinaabek Family Services may hold an informal
conference with the child and the child's parent(s), guardian, or
custodian, before or after the filing of a petition, to discuss alternatives
to formal dependency adjudication if:
(b)
No Authorization to Compel Involuntary Action. This section does
not authorize the Anishinaabek Family Services to compel any involuntary
action by the parties involved.
(c)
Options. At the informal preventative intervention conference, Anishinaabek
Family Services, with the voluntary agreement of the parties, may:
(1)
Refer the child and the child's parent(s), guardian, or custodian
to a community agency for assistance; or
(2)
Suggest remedial strategies, including but not limited to referral
to the peacemaking procedures, group or family counseling or other
activities which are intended to prevent formal Dependency proceedings.
(d)
Report. Anishinaabek Family Services shall set forth, in writing,
conference findings and the disposition agreed to by the parties.
The report shall be made available to all parties in interest.
(e)
Petition. If an informal preventative intervention plan is agreed
upon, Anishinaabek Family Services may recommend holding a petition
for Dependency Adjudication in abeyance, or withdrawal of a petition
reserving the option to re-file at a later date.
(f)
Duration. Any informal preventative intervention plan shall conclude
within six months of execution.
(g)
Monitoring the Agreement. Anishinaabek Family Services shall review
a child's progress in a preventative intervention plan every 30 days.
If, at any time AFS concludes that positive results are not being
achieved, the protective services worker may request that the presenting
officer file a petition for Adjudication of Dependency.
(h)
Privileged Information. No statement during an informal preventative
intervention conference may be admitted into evidence at a Dependency
adjudication hearing, Termination of Parental Rights Hearing or any
other tribal court proceeding involving the child.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, as enacted by Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Authorization to File Petition.
(1)
Who May File. Any person may file a complaint with Anishinaabek
Family Services, the presenting officer or law enforcement alleging
that child meets the definition of a Dependent child.
(2)
Formal Proceedings. The presenting officer or the child protective
services worker or the Anishinaabek Family Services program director
(if the presenting officer is not available), may initiate formal
child protection proceedings by filing a petition for adjudication
of a Dependent child in Tribal Court on behalf of the Tribe and in
the best interests of the child.
(3)
Emergency Action Not Precluded. Nothing in this section shall
preclude law enforcement or protective services personnel from taking
emergency action under § 114 of this Code.
(b)
Time Limitations. If a child has been removed from his or her home,
a petition shall be filed with the Children's Court within three business
days of the date of removal.
(c)
Contents of Petition. The petition shall set forth the following
with specificity:
(1)
The name, birth date, sex, address social security number and
tribal affiliation of the child;
(2)
The basis for the Court's assumption of jurisdiction over the
child;
(3)
The specific allegations against each Respondent named in the
petition, which form the grounds for the assertion that the child
meets the definition of a Dependent child under this Code;
(4)
A plain and concise statement of the facts upon which the allegations
contained in the petition are based, including the date, time and
location at which the alleged facts occurred;
(5)
The names, addresses, telephone numbers, social security numbers
and tribal affiliation of the child's parents, guardians or custodians,
if known;
(6)
The names, relationship and addresses of all known members of
the child's extended family and all former care givers, if known;
and
(7)
If the child is placed outside of the home, the name of person
or agency with whom the child is placed, the facts necessitating the
placement and the date and time of the placement.
(8)
The specific provisions of the Children's Code alleged to be
violated and the specific party alleged to have violated each provision.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
General. A party to a Petition to Adjudicate a Child as Dependent
shall be given notice of all proceedings in Children's Court in any
manner authorized by this Children's Code or rules of Tribal Court
unless summons is required pursuant to § 119(b) below.
(b)
Service. A summons and petition shall be issued and served upon each
parent, guardian or custodian, and/or any adult person with whom the
child resides, if other than a parent or a court-ordered custodian,
directing such person(s) to appear before the court with the child
on a date certain. The Court may direct that the child's appearance
in Court is waived.
(c)
Contents of Summons. The summons shall direct the Party(ies) to whom
it is addressed to appear with the child, unless the child's appearance
has been waived, at a time and place specified by the Court and must:
(d)
Manner of Serving Summons. A summons shall be served as follows:
(1)
Personal Service. A summons required under this section must
be served by delivering the summons into the hands of a named party
and verified by affidavit or acknowledgement of acceptance of service
or;
(2)
Service by Mail. If personal service of the summons is impractical
or cannot be achieved, the Court may direct that it be served by registered
or certified mail, return receipt requested, addressed to the last
known address of the party, and restricted delivery to the addressee.
(3)
Substituted Service. The Court may direct any manner of substituted
service, including publication if the Court finds that service cannot
be made because the whereabouts of the person to be summoned has not
been determined after reasonable effort.
(e)
Time of Service. A summons shall be served as follows:
(1)
Personal Service: Seven calendar days after issuance of the
Summons and at least 14 calendar days before a hearing on a petition
to terminate parental rights. Summons and petition for Adjudication
of a Child as Dependent shall be served at least 10 days prior to
the Adjudication hearing.
(2)
Certified or Registered Mail. 14 calendar days after issuance
of the Summons, at least 21 calendar days before a hearing on a petition
to terminate parental rights. Summons and petition for Adjudication
of a Child as Dependent shall be served at least 10 days prior to
the Adjudication hearing.
(3)
Publication. The published notice, which does not require publication
of the petition itself, shall appear in a newspaper in the county
where the party resides, if known, and if not, in the county of the
party's last known address, if known, and if not, the county where
the action is pending. The published notice must appear one or more
times 14 calendar days before the hearing.
(f)
Notice of Hearing.
(1)
Persons Entitled to Notice. The Court shall require proof that
the following persons have been notified of each hearing:
(2)
General. Notice of hearing must be served in writing or orally
by the court and may be acknowledged on the record or mailed to the
last known address at least seven calendar days prior to any hearing.
(3)
Preliminary Hearing. When a child is placed outside of the home,
diligent efforts shall be made to notify the parents, legal guardian
or custodian or an extended family member pursuant to § 119(b)
as soon as any hearing is scheduled. Notice may be in person, In writing,
acknowledged on the record, or by telephone, and shall be documented
and verified to the Court.
(4)
Termination of Parental Rights Proceedings. Written Notice of
a hearing on a petition to terminate parental rights must be personally
served on the parties or acknowledged on the record at least 14 calendar
days before the hearing.
(5)
Failure to Appear. If a party fails to appear in response to
a notice of hearing, the Court may order the party's appearance by
summon, subpoena, or by order to show cause or the court may, upon
verification of proof of service of Notice of Hearing:
(6)
Issue a Notice of Default to the party stating that because
of the party's failure to appear at preliminary hearings allegations
in the petition will be presumed to be true and the court will proceed
accordingly. Notice of Default should include the date and time of
the hearing and a warning that failure to file a Motion to Set Aside
Default within receipt of Notice of Default will result in a default
adjudication of the child as Dependent and/or a Termination of Parental
Rights.
(g)
Subpoenas. The attorney for a party or the Court on its own motion
may cause a subpoena to be served upon a person whose testimony or
appearance is required. It is not necessary to tender advance fees
to a person served in order to compel attendance. The court may use
its civil contempt powers to enforce subpoenas.
(h)
Waiver of Service. Except regarding Termination of Parental Rights
hearings, A person may waive notice of hearing or service of process.
The waiver shall be in writing or may be acknowledged on the record.
(i)
Subsequent Notice. After a party's first appearance before the Court,
subsequent notice of proceedings and pleadings shall be served on
that party or, if the party has an attorney, on the attorney, either
personally or by ordinary mail. A summons must be served prior to
trial or termination hearing including a Notice of Hearing as provided
by this Code.
(j)
Putative Fathers. If the Court determines that the child has no identified
legal father as defined in § 102(o), the Court shall take
appropriate action as follows:
(1)
Initial Testimony. The Court shall take initial testimony regarding
the identity and address of any putative father. If the Court finds
just cause to believe that an identifiable person is the natural father
of the child, the Court shall direct that notice be served on that
person in the manner as provided in this section. The Notice shall
include the following information:
(A)
A petition that has been filed with the Court;
(B)
The time and place of hearing at which the putative father is
to appear; and
(C)
Notice that failure to attend the hearing may result in a default
judgment or order adverse to the putative father and may be deemed
to constitute a waiver of any claim to parental rights, a waiver of
notice for all subsequent hearings.
(2)
Hearing. After proof of service of notice upon the putative
father is filed, the Court may conduct a hearing to determine if:
(A)
Service and Notice was adequate to inform the putative father
of the proceedings and his potential rights. If so, the Court may
declare the putative father in default, order notice of default be
served upon the putative father and all parties and proceed.
(i)
Clear and convincing evidence establishes that
the putative father is the natural father of the child; or
(ii)
There is just cause to believe that another identifiable
person is the biological father of the child. If so, the Court shall
proceed under the rebuttable presumption that identified person is
the biological father of the child in accord with this section; or
(iii)
If, After diligent inquiry, the identity of the
natural father cannot be determined. The Court may publish notice
at least once in a manner calculated to alert any person who may be
the father of the child. If no person comes forward within a time
certain, the Court shall terminate the parental rights of the unknown
father and proceed without further notice.
(3)
Waiver of Rights. The Court may find that by failing to appear
and/or failure to comply with court orders to establish paternity,
the putative father waives all rights to further notice, including
the right to notice of termination of parental rights.
(4)
Default: When a default judgment or order is rendered by the
Court, the defaulted party must file a Motion to Set Aside Default
demonstrating good cause for failing to appear at previous hearings,
within seven days of receipt of Notice of Default. The Court may,
10 days after date of service of Notice of Default, enter the order
or judgment and proceed.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006; as amended by Tribal Act #06-24.1729 enacted by Tribal
Council on January 17, 2007.]
(a)
Child Released to Parent. If the child has been released to his/her
parent, guardian or custodian, the Court shall conduct a preliminary
hearing within seven working days after the filing of the petition
to determine whether probable cause exists to believe that the child
continues to meet the definition of a Dependent child and if further
services be provided.
(b)
Child Placed Out of Home. If the child is placed out-of-home, the
Court shall conduct a preliminary hearing within three business days
after the filing of the petition to determine if:
(1)
Just cause exists that the child met the definition of a Dependent
child at the time of removal; and
(2)
Conditions and circumstances which gave rise to the removal
continue to present a substantial risk of harm to the child's life,
physical health, emotional, developmental or mental well-being; and
(3)
Any appropriate alternative, except continued placement of the
child, is reasonably available to adequately safeguard the child from
such risk.
(c)
Parent, Guardian or Custodian Not Present. If the child's parent,
guardian, or custodian does not appear at the preliminary hearing,
the Court shall inquire about the adequacy of efforts to notify and
to obtain the presence of the party. If it appears that further efforts
are likely to produce the party, the Court shall recess for not more
than 24 hours and direct the petitioner to make continued efforts
to obtain the presence of the party. The preliminary hearing may be
conducted in the absence of the party.
(d)
Preliminary Hearing Procedure. The Court shall:
(1)
Read the allegations in the petition in open court, unless the
reading of the allegation is waived by all parties;
(2)
Advise all Respondents, of the right to have counsel represent
them, at their own expense;
(3)
Advise all Respondents of their right to a trial on the allegations
in the petition;
(4)
Advise all Respondents of their right to remain silent; and
(5)
Advise all Respondents of their right to plead responsible,
not responsible, no contest or stand mute as to the allegations in
the petition, and accept a plea on the allegations.
(6)
Appoint a guardian ad litem for the child(ren) if deemed appropriate
under the circumstances or upon request of any party in interest.
(e)
Establishing Probable Cause. The Court, in determining whether just
cause exists that the child meets the definition of a Dependent child
shall hear testimony and determine if:
(1)
At the time of removal and/or filing of the petition, the child(ren)
were at risk of physical, emotional or developmental harm as defined
in § 102 of this Code and that those named as Respondents
to the petition were likely to have caused, by act or omission, the
risk of harm.
(2)
At the time of removal, or filing of the petition, the out-of-home
placement of the child was the least restrictive means of ameliorating
the risk of harm and remains an appropriate placement under the circumstances.
(3)
At the time of the preliminary hearing, The child(ren) would
remain at risk of harm if returned to the custody of Respondents and
that adequate services are being provided to facilitate the reunification
of the family.
(f)
Just Cause Not Found. If just cause that the child meets the definition
of a Dependent child is not found to exist, either at the time of
removal or at the time of hearing, the Court shall dismiss the petition
and the child shall be released to the custody of any or all Respondents.
(g)
Just Found.[1] If the Court finds that just exists that the child meets
the definition of a Dependent child, the Court:
(1)
Upon entry of a plea of responsible or no contest, by any or
all Respondents, the Court shall set a time and date for Disposition
hearing regarding the pleading parties.
(2)
Shall order the Respondents who plead not responsible or stand
mute to appear at an adjudication hearing on a date and time set by
the Court; and
(3)
May release the child to the custody of any or all Respondents
under such reasonable terms and conditions as are necessary to ensure
the physical, emotional, or mental and developmental well-being of
the child; or
(4)
Upon entry of a plea, may order alternative placement of the
child with someone other than any or all Respondents after determining
that:
(A)
Conditions of current placement of the child are inadequate
to safeguard the child's health and welfare and serve the best interests
of the child(ren) or that placement is not the least restrictive available
as defined in this Code.
(B)
A more appropriate or less restrictive placement has become
available and the ability to needs of the child that would be met
in alternative placement outweighs the adversity of transfer of placement.
(C)
The alternative placement substantially meets GTB requirements
and standards for the provision of care and criminal background check
has been conducted on each person who will have care and control over
the child.
[1]
Editor's Note: So in original. Apparently should be "just
cause."
(h)
Court Ordered Evaluations and Assessments. The Court may, at any
time after conducting a preliminary hearing at which just cause to
proceed upon a Petition for Adjudication of Dependency is found, order
any involved child, parent, guardian, or custodian or any family member
or extended family member, who may have contributed the conditions
or situation that gave rise to the Petition to undergo a criminal
background check, a physical, mental, psychological or substance abuse
evaluation or assessment by a qualified professional.
(i)
Consistent with 42 U.S.C. § 670, Subchapter IV, Grants
to States for Aid and Services to Needy Families with Children and
for Child-Welfare Services; and specifically, 42 U.S.C. § 671,
State Plans for Foster Care placement and adoption, the Tribal Council
hereby finds that since the Tribe is not a direct eligible recipient
for Title IV-E funding, the Tribe will follow the federal regulations
governing foster care placements under 45 CFR, Section 1356.21(c),
which specifically provides that following:
|
"(c) Contrary to the welfare determination. Under Section 472(a)(1)
of the Act, a child's removal from the home must have been the result
of a judicial determination (unless the child was removed pursuant
to a voluntary placement agreement) to the effect that continuation
of residence in the home would be contrary to the welfare, of that
placement would be in the best interest, of the child. The contrary
to the welfare determination must be made in the first court ruling
that sanctions (even temporarily) the removal of a child from home.
If the determination regarding contrary to the welfare is not made
in the first court ruling pertaining to removal from the home, the
child is not eligible for title IV-E foster care maintenance payments
for the duration of that stay in foster care."
|
|
Therefore, the Tribal Court shall make findings consistent with
the above provisions of federal law for purposes of funding foster
care placement.
|
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Purpose. The Court shall conduct an adjudication hearing for the
purpose of determining if child meets the definition of a Dependent
child and that reasonable efforts to reunify the family have been
made by AFS and other service providers.
(b)
Commencement. The adjudication hearing shall commence as soon as
possible but no later than 45 calendar days after the preliminary
hearing. Any party in interest may request an expedited Adjudication
of Dependency hearing by Motion.
(c)
Continuances. Continuance or adjournment of adjudication hearings
may be granted by the Court upon oral or written Motion if:
(1)
All parties stipulate to the continuance or adjournment;
(2)
Pretrial procedures cannot reasonably be completed;
(3)
The Court finds that the testimony of a presently unavailable
witness is needed and continuance or adjournment will facilitate the
appearance of the witness;
(4)
The Court determines that material, new evidence has or will
become available and that continuance or adjournment would serve the
interest of justice in facilitating the timely discovery process.
(5)
A Respondent requests an opportunity to obtain legal counsel
[one time only for up to 14 calendar days]; or
(6)
For good cause shown that continuance or adjournment would serve
the best interests of the child and the interest of justice.
(d)
Closed Proceedings. The general public shall be excluded from the
proceedings and only the parties, their counsel, witnesses, the guardian
ad litem and other persons determined to be material to the proceedings
by the Court shall be admitted. Witnesses may be excluded from the
courtroom during the taking of evidence from other witnesses upon
direction of the court and oral Motion by any of the parties. Parties
may not be excluded from the courtroom.
(e)
Evidence.
(1)
Formal Rules Do Not Apply. The formal rules of evidence shall
not apply at Children's Court. All reliable, probative and material
evidence may be admitted at the trial and may be relied upon by the
Court. Hearsay evidence is not admissible except as provided for MRE
804 or pursuant to any general rules of evidence promulgated under
authority of the GTB Civil and Criminal Codes. In determining the
admissibility of evidence, the court may use the Michigan Rules of
Evidence as a guide.
(2)
Cross-examination. The parties shall be afforded an opportunity
to examine and controvert all evidence presented including written
reports received by the Court and shall be allowed to cross-examine
individuals who generated the reports whenever those individuals are
reasonably available.
(3)
Speaker telephones. The Court may rely upon conference telephonic
or other electronic devices to permit material and probative testimony
by witnesses unable to appear in person to testify. The right to cross-examine
telephonic witnesses must be preserved.
(f)
Burden of Proof. GTB has the burden of proving the allegations in
a Petition for Adjudication of Dependency by clear and convincing
evidence. If the Court finds that the Tribe has met its burden of
proof, the Court shall make findings as to the specific grounds for
Adjudicating a child to be Dependent and for the assumption of continued
jurisdiction by the Tribal Court. The child shall become a temporary
ward of the Tribal Court.(g) Allegations Not Sustained. If any or
all allegations asserted as the grounds for Adjudication of a child
as Dependent are not sustained, the Court shall dismiss the unsustained
allegations and make findings on all remaining allegations. If all
allegations are not sustained by clear and convincing evidence, the
Petition for Adjudication of Dependency shall be dismissed and the
child release from the custody of Tribal authority.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, as enacted by Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Purpose. A disposition hearing shall be subsequent to the entry of
an Order of Dependency, conducted to determine a plan of remedial
measures designed to achieve the reunification of the family or, concurrently
a preliminary permanency plan for termination of parental right. Factors
which shall determine disposition of a child adjudicated as dependent
and a remedial plan shall include:
(1)
A child is properly within the Court's jurisdiction, and when
applicable;
(2)
A Respondent who has been adjudicated to be responsible for
the abuse or neglect of a child(ren) under the jurisdiction of the
Court;
(3)
Children residing within the same household as a child adjudicated
as dependent or a child born during the period in which the Court
retains jurisdiction over a child adjudicated to be Dependent.
(b)
Disposition Immediately Following Adjudication. A disposition hearing
may be heard immediately after the adjudication. The interval, if
any, between the adjudication and the disposition, is within the discretion
of the Court but shall not to exceed 15 business days after the entry
of Order of Dependency.
(1)
Child in Placement. When a dependent child is in placement,
the interval between adjudication and disposition may not exceed 30
business days except for good cause.
(2)
Notice. If a disposition hearing is not held immediately after
the adjudication, notice of hearing may be given by scheduling it
on the record in the presence of the parties or in accordance with
§ 119, Service of Summons, Notices of Hearings, Subpoenas,
and Notice to Putative Fathers.
(c)
Proposed Case Service Plan. The Anishinaabek Family Services or its
agents shall prepare a written report describing all reasonable and
appropriate alternative dispositions, including reports and recommendations
of protective service workers. The report shall contain a specific,
concurrent plan for placement, care and assistance to the child, and
reunification requirements for all parties. A plan shall include:
(1)
Detailed Explanation. The report shall contain a detailed explanation
of the necessity for the proposed remedial or reunification plan requirements
and projected benefits to the child and a rough time line for meeting
requirements of the plan. Boilerplate plans are prohibited and each
party shall receive individual consideration in executing plan requirements.
(2)
Specific Reasons Underlying Placement Recommendation. If the
report recommends out of home placement it shall state the specific
reasons underlying the recommendation and state the proposed placement
plan.
(3)
Due Date. Anishinaabek Family Services or its agents shall present
the case plan to the Court, the child advocate, and the presenting
officer, the respondents' parents or the respondents' attorney(s)
at least three days before the disposition hearing.
(4)
Children over the age of 14 may participate in planning and
generating the reunification plan but shall participate in the planning
ort generation of preliminary permanency plans for termination of
parental rights. All parties in interest shall be entitled to participate
in the planning and generation of reunification plans but not in the
planning and generation of preliminary permanency plans for termination
of parental rights.
(d)
Evidence. All probative and material evidence, including oral and
written reports, may be admitted, even though such evidence may not
be admissible at trial. When issuing its Disposition Orders, the Court
shall consider the case Disposition plan and any report by an agency
responsible for the care and supervision of the child, concerning
efforts to prevent the break up of the family, or to rectify conditions
that caused removal of the child from the home.
(1)
Cross-examination. The parties shall be given an opportunity
to examine and controvert evidence including written reports so received
and may be allowed to cross-examine individuals generating reports.
All reports entered into evidence for purposes of Disposition Orders
shall be admitted only upon establishment of proper foundation.
(2)
Speaker Phones. The Court may rely upon conference telephonic
or other electronic devices that permit all those appearing or participating
to hear and speak to each other.
(3)
No Assertion of Privilege. No assertion of an evidentiary privilege,
other than the privilege between attorney and client, shall prevent
the receipt and use, at the disposition, of materials prepared pursuant
to a Court ordered examination, evaluation, assessment, interview
or course of treatment.
(e)
Disposition Orders.
(1)
Order of Disposition. The Court shall enter Disposition Orders
after considering the Disposition plan and other evidence offered
bearing on disposition. The Court shall approve a Disposition Plan
and may order compliance with all or part of the plan. The Court may
enter such orders as it deems necessary in the best interests of the
child(ren). Disposition Orders shall state whether reasonable efforts
have been made to prevent the breakup of the family under the circumstances
of the case. The Court will advise all parties that a concurrent,
preliminary permanency plan for termination has been submitted to
the Court for review and that the plan may be effectuated as to a
particular Respondent if and when there is a showing of substantial
non-compliance with the reunification plan.
(2)
Disposition Priorities. If a child has been adjudicated as dependent,
the Court may order, by priority:
(A)
The child and other children residing within the same household
to remain with any or all of the Respondents, subject to such conditions
as the Court may prescribe;
(B)
Placement of the child and other children residing within the
same household with a relative within the primary service area of
the GTB, subject to such conditions as the Court may prescribe;
(C)
Placement of the child and other children residing within the
same household in a licensed foster home within the primary service
area of the GTB, subject to such conditions as the Court may prescribe
placement of the child and other children residing within the same
household in a group home or residential care facility designated
by the Court;
(D)
Placement of the child and other children residing within the
same household with a relative outside of the GTB service area, subject
to a plan for monitoring, visitation and coordination with other agencies
within the jurisdiction of the placement; or
(E)
The presenting officer to file an expedited petition to terminate
parental rights under this Code.
(F)
Acceptance or rejection of a disposition plan in its entirety.
(f)
Order for Reimbursement for Care. Respondents may be ordered by the
Court to reimburse the Tribe and/or the Michigan Family Independence
Agency for the cost of care and placement. Reimbursement will be based
on State of Michigan Child Support Guidelines that have been adopted
by the Tribal Council.
(g)
Child Support. Respondents may be ordered by the Court to make child
support payments for children placed with relatives or friends who
are not eligible for foster care payments or payments are not sufficient
to cover the cost of caring for the children.
(h)
Amendments. As long as a child remains a ward of the Court, a Disposition
Order may, upon Motion by any party in interest, be amended or supplemented
at any time. Emergency Motions to modify or supplement a Disposition
order may be granted ex parte upon a finding by the Court that just
cause exists and the best interests of the child will be served. Notice
of ex parte modifications or supplemental Orders must be served on
all parties within 48 hours of entry of the modification or supplemental
order.
(i)
Objections to ex parte modifications or supplemental Disposition
Orders must be filed with the Court within seven days of entry of
the Order. If objections are timely filed, the Court shall set an
emergency hearing within three days from the date of the date of filing
of objections. The Court may Notify the parties of the hearing by
telephone so long as the Notice is duly recorded in the case file.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Review. The Disposition Order shall be reviewed at least once every
six months.
(b)
Notice of Review. Notice of the review hearing shall be provided
to all parties by acknowledgement on the record or by ordinary mail
as provided in § 119(f).
(c)
Scope of Review. At a review hearing, the Court shall make findings
regarding compliance by all parties with Disposition Orders prepared
pursuant to § 122 and the previous orders of the Court,
including:
(1)
Services. Compliance with the reunification requirements of
the Disposition Order with respect to services provided to the child
and Respondents, and whether the parties have substantially complied
with requirements and demonstrate progress toward reunification.
(2)
The adequacy and effectiveness of the services being provided
to the family and the likelihood that specific services will result
in improvement in the circumstances which led to removal of the children
and eventual reunification.
(3)
Visitation. Compliance with a reasonable reunification plan
with respect to visitation between Respondents and child, child and
siblings and child and extended family members. The Court shall make
findings as to the cause of non-compliance with the orders and take
action to ensure that children and their families receive appropriate
and adequate visitation.
(4)
Other Provisions. The extent to which a Respondent has complied
with each provision of the Disposition Order, prior Court orders and
the likelihood that compliance will continue shall be considered when
extending, modifying or issuing new Disposition Orders.
(5)
Continued Separation. Likely harm to the child(ren) if out of
home placement is continues.
(6)
Reunification. Likeliness of continued risk of harm to the child(ren)
if returned to the custody of the Respondent(s).
(d)
Extent of Progress. After review of the reasonableness of reunification
portion of the disposition plan, the Court shall determine the extent
of progress made toward meeting the goals of the plan within the general
timelines set forth in the plan. The Court may modify any part of
the plan including, but not limited to, the following:
(1)
Additional Services. Additional services necessary to rectify
the conditions and circumstances cited in the petition or new obstacles
to reunification that have arisen since entry of the Order of Disposition.
(2)
Additional Actions. Additional actions to be taken by the parties
to rectify the conditions and circumstances that caused the child
to become adjudicated as dependent.
(e)
Continued Placement. At a review hearing the Court shall determine
the continuing necessity and appropriateness of the child's placement.
The Court may continue the placement; order the return of the child;
continue or modify the original Disposition Order, enter a new disposition
order or commence procedures for Termination of Parental Rights including
implementation of the preliminary permanency plan for termination
of termination and setting a date and time for Termination hearing.
(f)
A Child Remaining in Placement. If Dependency is continued and the
child remains in placement, the Court shall determine at each review
hearing whether the placement should be reviewed before the next review
hearing required under § 123(a) [at least every six months].
In making this determination, the Court shall consider the following:
(1)
Respondent Motivation. The Respondents' demonstrated motivation
to make necessary changes to provide a suitable environment for the
child.
(2)
Possibility of Early Return Home. Whether there is a reasonable
likelihood that the family will be reunified prior to the next review
hearing required by § 123(a).
(g)
Return Without Hearing. If not less than seven days' notice is given
to all parties prior to reunification of the family, and no party
objects within seven days of receipt of, the Court may issue an Order
of Reunification ex parte authorizing AFS to return the child to the
custody of any or all Respondents.
(h)
Reunification Upon Waiver and Consent. If all parties waive notice
of hearing and consent to reunification, the AFS or another agency
designated by the Court may return he child to the custody of any
or all Respondents. If reunification is executed in this manner AFS
shall monitor the progress of the family for a period of 30 days if
no cause arises to continue the Dependency of the child, the presenting
officer will seek dismissal of Orders of Dependency and closure of
the case.
(i)
Agency Report. An agency report shall be filed with the Court at
least three working days prior to the review hearing and copies provided
to all parties or their representatives. The report shall be offered
into evidence.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, as enacted by Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Timetable. If a child is adjudicated to be Dependent and either insufficient
progress toward reunification has been made, or the Court has Ordered
the implementation of a preliminary permanency plan, or aggravated
circumstances apply, a Petition for Termination of Parental Rights
may be filed. The Court shall conduct a permanency planning hearing
not more than 12 months after entry of Order of Disposition and at
least 30 days prior to any Termination hearing. A permanency planning
hearing may be combined with a disposition review hearing under § 123.
(b)
AFS shall file a proposed final permanency plan at least 10 business
days prior to the permanency planning hearing. Copies of the proposed
plan shall be served upon all parties at least seven days prior to
the hearing.
(c)
The Concurrent Permanency Plan: Should include a detailed proposal
for shall include a strategy for continued placement, services and
any potential reunification requirements that would result in dismissal
of Petition to terminate and actual reunification of the family. The
plan should clearly specify the goals for permanent placement, provision
of services to the child and strategies for achieving those goals
in the event that parental rights are terminated.
(d)
Scope of Review. A permanency planning hearing shall be conducted
to review the status of the child and the progress made toward successful
completion of the reunification plan when the child has remained a
ward of the Court for at least one year or when reunification efforts
have been substantially unsuccessful and there is little likelihood
that reunification goals can be achieved through new or modified plans
or when aggravated circumstances as defined in this Code warrant immediate
termination procedures. The Court shall weigh any evidence to support
either continuation or adjournment of Termination hearing, dismissal
of Petition for Termination before proceeding with Termination Hearing.
(e)
Permanency Plan Options: Pursuant to a Permanency Planning Hearing,
the Court may:
(1)
Parental Rights Not Terminated. Determine if reunification would
presently cause a substantial risk of harm to the child's life, physical
health, or mental well-being and issue appropriate Orders. The Court
shall view substantial noncompliance with the terms and conditions
of a Disposition Order as evidence that reunification efforts have
failed and reunification is not in the best interest of the child
or return of the child.
(2)
If the Court finds, by clear and convincing evidence, that no
substantial risk of harm exists and the Respondents have substantially
complied with a reasonable reunification plan, the child shall be
returned to the custody of the Respondents and the Petition for Termination
of Parental Rights Dismissed.
(f)
Alternative Permanent Placement Plans. If the Court determines at
a permanency planning hearing that reasonable reunification efforts
have failed due to Respondent's substantial non-compliance with Disposition
Orders or that abuse occurred under aggravated circumstances as defined
in this Code, or that a child has been a ward of the Court for at
least one year, it may order AFS to include any or all of the following
in a final permanency plan:
(1)
That the child(ren) be placed permanently with an identified
relative within the primary service area of the Tribe;
(2)
That the child(ren) be placed permanently with an identified
relative who is outside the primary service area of the Tribe;
(3)
A Termination Hearing proceed and a plan for adoptive placement
be presented to the Court, including time lines;
(4)
That a petition for guardianship under this Code be filed by
the current caretaker of the child, the child or the Anishinaabek
Family Services; or
(5)
If other children from the same household as the child adjudicated
to be Dependent remain in placement at the time of permanency planning,
the Court shall order the final permanency plan to include those children
pursuant to § 124(d)(1)(2) or (3) or 124(d)(4) or (5).
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Purpose. The purpose of this section is to provide for the voluntary
and involuntary termination of the parent-child relationship and for
the substitution of parental care and supervision by judicial process.
This chapter shall be construed in a manner consistent with the philosophy
that the family unit is of significant value to the community, and
will preserve the family whenever possible. When the break up of a
family is required to ensure the health, safety and wellbeing of a
child and it has been clearly demonstrated that those charged with
the rights and responsibilities of parenthood are unable to adequately
provide a safe and nurturing environment in which children may grow
into functioning and contributing adults, those rights of parenthood
will be terminated and the responsibilities vested in those persons
or entities who may adequately provide for children. Termination of
the parent-child relationship should be used only as a last resort,
when, in the opinion of the court, all efforts have failed to avoid
termination and it is in the best interests of the child concerned
to proceed under this section.
(b)
Grounds for Involuntary Termination. The Court may terminate the
parental rights of a parent to a child adjudicated as Dependent and
to children living within the same household as child so adjudicated,
if the Court finds, by clear and convincing evidence, one or more
of the following:
(1)
Abandonment. The child has been abandoned under the following
circumstances:
(A)
A parent of a child is unidentifiable or has had substantially
no contact with the child for 28 or more days and has not sought custody
of the child during that period. For purposes of this section, a parent
is unidentifiable if the parent's name and location cannot be ascertained
after reasonable efforts have been made to locate and identify the
parent; or
(B)
A parent has left a child in the care of others, including a
legal custodian for at least 30 days and has not provided for support
of the child for a period of at least six months. The failure to provide
support and to communicate with a child for a period of at least six
months shall be presumptive evidence of intent to abandon the child.
(2)
Physical Injury or Sexual Abuse. The child or a child's sibling
has suffered physical injury, severe or prolonged physical or sexual
abuse under either of the following circumstances:
(A)
A Respondent's act or omission caused injury or abuse of a child
and the Court finds that there is a reasonable likelihood that the
child remains at risk of injury or abuse in the foreseeable future
if reunified into respondent's custody and control; or
(B)
A respondent who has or had the opportunity to prevent the physical
injury or physical or sexual abuse failed to do so and the Court finds
that there is a reasonable likelihood that the child will suffer injury
or abuse reunited into the custody of the Respondent.
(3)
Un-rectified Conditions and circumstances. The Respondent was
found to be subject to provisions of the Children's Code, which resulted
in the adjudication of a child as dependent, and 12 or more months
have elapsed since the issuance of an initial Disposition Order, and
the Court, by clear and convincing evidence, finds either of the following:
(A)
The conditions and circumstances that led to the adjudication
continue to exist and there is no reasonable likelihood that the conditions
will be rectified within a reasonable time considering the age of
the child; or
(B)
Other conditions exist that cause the child to meet the definition
of a dependent child. The Respondent has not substantially complied
with a reasonable reunification portion of a Disposition Plan and
has received notice of, all applicable hearings and procedures, and
it is in the best interests of the child to terminate the parental
rights of the Respondent.
(4)
Failure to Provide Proper Care. The Respondent, without regard
to intent, has demonstrated an inability or unwillingness to adequately
provide proper care or a nurturing environment for the child and efforts
to reunify the family have failed because the Respondent shows no
intent or inclination to substantially comply with a reasonable reunification
plan, and it is in the best interests of the child that parental rights
be terminated.
(5)
Conviction of Violent or Sexual Crime. A Respondent has been
convicted of a violent or sexual crime in which a family member or
another child was a victim.
(6)
Conviction of a Felony. A Respondent has been convicted of a
felony that is of a nature as to clearly demonstrate the Respondent's
unfitness as a parent.
(7)
Imprisonment for More than Two Years. A Respondent is sentenced
to serve actual time of incarceration of two years or more and has
not provided for the child's proper care and custody and support for
the period of incarceration, and there is no reasonable expectation
that the Respondent will be able to provide proper care and custody
within a reasonable time considering the age of the child.
(8)
Parental Rights to Siblings Terminated. Parental rights to one
or more siblings of a child, have been terminated within the past
seven years due to serious or chronic neglect, physical or sexual
abuse, and prior attempts to rehabilitate the Respondent(s) have been
unsuccessful. This provision does not apply to children born after
parental rights have been terminated unless the after born child(ren)
meet the definition of a Dependent child have as defined in this code.
(9)
Parental Kidnapping: A Respondent has absconded with a child
from Court Ordered placement or has engaged in custodial interference
with the Tribal Court's placement of a Dependent child.
(c)
Termination at Initial Disposition. If a petition to terminate parental
rights is filed under § 125(b)(1)(B)(5 - 9), the Court may
enter an order terminating parental rights under § 128 at
the initial disposition hearing.
(d)
Quality of Evidence. The same rules of evidence which apply at Dependency
adjudication shall apply in termination of parental rights proceedings.
(e)
Termination of Parental Rights Order. An order terminating parental
rights under this Code may not be entered unless the Court makes findings
of fact, states conclusions of law, and includes the statutory basis
for the order. The Court may state the findings and conclusions on
the record or include them in a written opinion. If the Court does
not issue a decision on the record following a Termination hearing,
it shall file its decision within 28 days after the taking of final
proofs.
(f)
Voluntary Relinquishment of Parental Rights. Parental rights may
be voluntarily terminated by written consent of both living parents,
a legal guardian and custodian so long as parental rights of living
biological parents have been terminated, executed in the presence,
and with approval, of the Court. Relinquishment of Parental Rights
shall not be accepted or acknowledged by the Court prior to 10 days
after birth of a child. The Court shall make findings of fact to ensure
that the person seeking to terminate parental rights has been advised
of and understands their rights and the consequences of voluntary
termination prior to approving Orders of Termination. A person who
wishes to relinquish parental rights shall be provided an interpreter
if he/she does not understand English. Consent to voluntary termination
of parental rights may be withdrawn prior to the entry of the final
Order of Termination.
(g)
General Provisions of Orders of Termination: Child's Continued Right
to Benefits. An order terminating the parent-child relationship shall
not bar entitlement of a child to any benefit due the child from any
third person, agencies, state or the United States, nor shall any
action under this Code be deemed to affect any rights and benefits
that child derives from the child's descent from a member of a federally
recognized Indian tribe.
(h)
Advise of Right to Appeal. Immediately upon entry of an involuntary
order terminating parental rights, the Court shall advise the respondent
orally for the record or in writing of the right to appeal the final
Order of Termination. Appellate review shall be by right. The clearly
erroneous standard shall be used in reviewing the findings of the
Children's Court on appeal from an order terminating parental rights.
(i)
Post Termination Review Hearings. If a child remains a ward of the
Court following the termination of parental rights, the Court shall
conduct a review hearing, at least every six months to review and
modify the final permanency plan. The Court shall make findings as
to whether reasonable efforts have been made to establish permanent
placement for the child in compliance with the final permanency plan
and may enter such orders as it considers necessary in the best interests
of the child.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Court Authorization. At any time, regardless of whether a child is
under the custody of the Court, the Court may authorize medical or
surgical care for a child when:
(1)
Parent Not Available. A parent, legal guardian or custodian
is not immediately available and cannot be found after reasonable
effort in the circumstances of the case; or
(2)
Physician's Opinion. A physician informs the Court orally or
in writing that in his/her professional opinion, the life of the child
would be greatly endangered without certain treatment and the parent,
guardian or other custodian refuses or fails to consent. If time allows
in a situation of this type, the Court shall cause every effort to
be made to grant the parent, guardian, or custodian an immediate informal
hearing, but this hearing shall not be allowed to further jeopardize
the child's life or health.
(b)
Religious and Traditional Healing. In making its order, the Court
shall give due consideration to any treatment being given the child
by prayer, through spiritual means alone or through other methods
approved by tribal customs or traditions or religions or if the child
or his parent, guardian, or custodian are adherents of an established
religious denomination that relies on this form of treatment in lieu
of medical treatment, or practices the tribal customs, traditions
or religion which is relied upon for such treatment of the child.
(c)
Written Authorization. After entering any authorization under this
section, the Court shall reduce the circumstances, finding and authorization
to writing and enter it in the records of the Court and shall cause
a copy of the authorization to be given to the appropriate physician,
hospital, or both.
(d)
Oral Authorization. Oral authorization by the Court is sufficient
for care or treatment to be given and shall be accepted by any physician
or hospital. No physician or hospital nor any nurse, technician or
other person under the direction of such physician or hospital shall
be subject to criminal or civil liability in the Court for performance
of care or treatment in reliance on the Court's authorization, and
any function performed there under shall be regarded as if it were
performed with the child's and the parent's, guardian's or custodian's
authorization.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Emancipation by Operation of Law. Emancipation occurs by operation
of law:
(1)
When a minor is validly married;
(2)
During any period in which a minor is on active duty with the
armed forces of the United States; and
(3)
For the purposes of consenting to routine, non-surgical medical
care or emergency medical treatment to a minor when the minor is in
the custody of a law enforcement agency and the minor's parent, guardian,
or custodian cannot be promptly located.
(b)
Emancipation by Court Order. An emancipation may also occur by Court
order pursuant to a petition filed by a minor or children's advocate
on behalf of the minor in the Children's Court.
(1)
Contents of Petition. The petition must be signed by the minor
and must include an affidavit by an adult individual having personal
knowledge of the minor's circumstances, who believes that under the
circumstances emancipation is in the best interest of the minor.
(2)
Investigation. After the petition is filed the Court may assign
AFS to investigate any allegations of abuse or neglect which arise
from a petition for emancipation; appoint legal counsel for the minor;
appoint legal counsel for the minor's parents, guardian, or custodian
if they are indigent; or dismiss the petition if the minor's custodial
parent does not consent and is providing support or if it is apparent
that emancipation would not be the minor's best interests.
(c)
Emancipation Order. The Court may issue an emancipation order if
it determines by a preponderance of the evidence that emancipation
is in the best interest of the minor and the minor establishes that:
(1)
The minor's parent, guardian, or custodian does not object to
the petition;
(2)
The minor is at least 16 years of age;
(3)
The minor is a resident of the Tribe's six-county service area;
(4)
The minor has demonstrated ability to manage his/her financial
affairs, including proof of employment or other means of support;
(5)
The minor has demonstrated the ability to manage his/her personal
and social affairs; and
(6)
The minor understands his/her rights and responsibilities as
an emancipated minor.
(7)
The minor remains engaged in an education program.
(d)
Right to Appeal; Rescission. The minor or a parent, guardian, or
custodian of the minor may file an appeal from the Court's grant or
denial of an emancipation petition or a minor emancipated by Court
order may petition the Children's Court to rescind the order.
(e)
Rights of Emancipated Minor. A minor emancipated by operation of
law or by Court order will be considered to have the rights and responsibilities
of an adult except for those specific constitutional and statutory
age requirements regarding voting, use of alcoholic beverages, access
to tribal minors' trusts, and other health and safety regulations
relevant to the minor because of his/her age. A minor will be considered
emancipated for the purpose of the following rights:
(1)
To enter into enforceable contracts;
(2)
To sue or be sued in his/her own name;
(3)
To retain his/her own earnings;
(4)
To establish a separate domicile;
(5)
To act autonomously, and with the rights and responsibilities
of an adult, in all business relationships;
(6)
To earn a living;
(7)
To authorize his/her own preventive health care and mental health
care;
(8)
To apply for a driver's license or other state or tribal license;
(9)
To register for school;
(10)
To marry;
(11)
To apply to medical assistance programs administered under the
State of Michigan Social Welfare Act or Indian Health Service or tribal
health services;
(12)
To apply for welfare assistance;
(13)
If a parent, to make decisions and give authority in caring
for his/her own minor child; and
(14)
To make a will.
(f)
Debts of Emancipated Minor. Parents of a minor emancipated by Court
order are not liable for any debts incurred by the minor during the
period of emancipation.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, as enacted by Tribal Council
in Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Power of Attorney. A parent, guardian, or custodian, or Anishinaabek
Family Services may, by a properly executed power of attorney, delegate
to another person, certain parental authority regarding the care,
custody and property of a minor child. Said powers include but are
not limited to: consent to admission to a hospital or school, consent
to secure routine dental care, non-surgical medical care and emergency
dental, medical or surgical treatment. Such delegation shall not include
power to consent to marriage, non-emergency elective surgery or adoption.
The delegation of parental authority shall be valid for no more than
six months from the date of execution, and may be revoked in writing,
at any time by the person or agency delegating the power. A person
acting under a power of attorney may be referred to as an "attorney
in fact," "agent" or "power of attorney." The delegation is renewable
upon Motion to extend the term of delegation of parental authority
filed in the Children's Court.
(b)
Limited Guardianship. The Court may by written order, appoint a temporary
guardian under such terms and conditions as the Court sets forth.
A temporary guardianship may be modified or termination upon determination
by the Court that it is in the best interests of the child to modify
or terminate the guardianship. The parent and the child's extended
family may be granted visitation rights with the child during the
term of the guardianship by the Court. A temporary guardianship shall
be established by parental consent only, and shall be terminated by
the Court upon written Motion to Terminate a Guardianship. If the
court finds that no visitation between parent and child shall occur
during the term of the guardianship, the Court must make findings
of fact to support suspension of visitation, and may direct AFS to
investigate and reasonable belief that a child meets the definition
of a Dependent child.
(c)
Statutory Guardianship.
(1)
Purpose. The Children's Court, when it appears necessary or
convenient, may appoint guardians for persons under the Court's jurisdiction.
Unless otherwise specified by the Court, an appointed guardian shall
be responsible for the care, custody and education of the child until
such child arrives at the age of 18 years, dies, is emancipated by
a Court of competent jurisdiction, or until the guardian is legally
discharged.
(2)
Grounds. The Court may appoint a statutory guardian for a child
if:
(A)
Parental rights of both parents or of the surviving parent have
been terminated or suspended by prior Court order, by judgment of
divorce or separate maintenance, by death, by judicial determination
of mental incompetence, by disappearance, abandonment, or by confinement
in a place of detention; or
(B)
The appointment is necessary for the immediate physical, mental
or developmental well-being of a child.
(3)
Who May File. Any person or entity with a vested interest in
the wellbeing of a child, including Tribal human resources, mental
health services providers and the Anishinaabek Family Services, the
child, if age 14 or older, a child's representative may file a petition
for statutory guardianship. The petition may be initiated either by
the proposed guardian or by the child if at least 14 years of age.
(4)
Notice. Before appointing a guardian, the Court must reasonably
provide notice of filing of a Petition for Statutory Guardianship
to all interested parties, including but not limited to, parents custodians,
agencies and person having responsibility for the care of the child,
to the child, and to other relatives of the child as the Court may
deem proper.
(5)
Contents of Petition. A petition for guardianship shall include
the following to the best of the petitioner's knowledge, information
and belief:
(A)
The full name, sex, date, social security number and place of
birth, residence and tribal affiliation of the proposed ward;
(B)
The full name, address, tribal affiliation, social security
number, relationship, if any, to the minor, and interest in the proceeding
of the petitioner;
(C)
The names and addresses of the minor's parents, if living, and
of other persons known to have an interest in the petition for appointment
of statutory guardian; the name and date of death of the minor's deceased
parent or parents (certificate attached), if appropriate;
(D)
A statement of the basis for the Court's assumption of jurisdiction;
(E)
The name and address of the person or agency having legal or
temporary custody of the proposed ward;
(F)
A statement of the reason that the appointment of a guardian
is sought and whom the petitioner recommends as guardian; and
(G)
A full accounting of the minor's assets and liabilities with
an estimate of the value of any property owned, possessed, or in which
the proposed ward has an interest, including any income and accounts
receivable to which the proposed ward is entitled presently and in
foreseeable future.
(6)
Certified Petition. All petitions must be dated, signed, and
certified by the petitioner and notarized or witnessed by a clerk
of the Court.
(7)
Statutory Guardianship Report. Upon the filing of a guardianship
petition, the Court shall immediately request that the AFS, or other
qualified agency provide a guardianship report including specific
information regarding the proposed statutory guardian and the proposed
ward.
(A)
Contents of Report. The statutory guardianship report shall
contain all pertinent information necessary to assist the Court in
determining the best interests of the proposed ward; and shall include
but is not limited to: a criminal background check on all adults living
in the proposed guardian's household, a check of tribal and state
records regarding any substantiated claims of child abuse and/or neglect.
(B)
When Report Due. No Orders granting Statutory Guardianship shall
be issued until the statutory guardianship report has been completed,
submitted to and considered by the Court. The report shall be submitted
to the Court no later than 10 days before a Statutory Guardianship
hearing. The Court may order additional reports as it deems necessary
and extend the time for filing of those reports as deemed necessary.
(8)
Powers and Duties of Guardian. To the extent that it is not
inconsistent with the terms of any order of the Court, a guardian
has the following powers and duties:
(A)
The statutory guardian is entitled to custody of the ward and
shall make provisions for the ward's care, comfort, and maintenance,
and shall, as appropriate to the ward's needs, arrange for training,
education, employment, medical care and rehabilitation. The statutory
guardian shall be responsible for reasonable care of the ward's clothing,
furniture, vehicles, and other personal property in the ward's possession
during the term of the guardianship.
(B)
In arranging for a ward's domicile, the statutory guardian shall
give preference to places within the tribal reservation over places
not on the reservation or within the GTB six-county service area,
if potential domiciles are substantially equivalent. The guardian
shall give preference to places that are not treatment facilities
unless in-patient medical or psychological treatment has been necessary
by appropriate medical evaluation. If the only available and appropriate
domiciles are treatment facilities, the guardian shall give preference
to tribally-based or approved treatment facilities.
(C)
The statutory guardian shall have authority to consent to any
medical, legal, psychological, or other professional care, counsel,
treatment, or service on behalf of the ward. The statutory guardian
may, with Court approval, give any other consent or approval on the
ward's behalf that is reasonably required to ensure the health, safety
and security of the ward, in the ward's best interest.
(9)
Reimbursement. The statutory guardian is entitled to reimbursement
from the ward's estate for reasonable and proper expenditures incurred
in the performance of his/her duties as guardian. The Court may order
monthly reimbursement payments to the guardian upon written request,
subject to the availability of funds and an annual accounting.
(d)
Conservatorship. The Court may, upon the filing of a Petition for
Appointment of a Conservator appoint a conservator for a minor if,
in the Court's opinion, a statutory guardianship is inadequate or
not necessary to ensure the best interests of the child. A conservatorship
shall not confer authority over the minor but shall provide the fiduciary
power and duty to marshal and preserve the minor's assets and for
paying the legitimate expenses incurred in providing care and maintenance
for the minor, subject to the availability of funds and annual accounting
to the court.
(e)
Annual Reports. All limited guardians, statutory guardians and conservators
shall file annual reports with the Tribal Court providing an update
on the condition of the ward and an accounting of funds collected
and funds expended on behalf of the ward. The reports shall be available
for review by all parties demonstrating a justifiable interest in
the ward.
(f)
Annual Review Hearings. Annual review hearings shall be scheduled
in conjunction with the filing of annual reports by limited guardians,
statutory guardians and conservators. Any party with a justifiable
interest in the welfare of the ward may request additional hearings.
(g)
Resignation. Any limited guardian, guardian, or conservator who wishes
to resign may petition the Court setting forth the reasons for the
request. The Court shall review a final accounting prepared by the
limited guardian, guardian, or conservator. If the Court is satisfied,
It may accept the resignation, discharge the limited guardian, guardian,
or conservator and appoint a successor. The limited guardian, guardian,
or conservator remains liable for all matters occurring from the time
of appointment to the time of discharge.
(h)
Appointment of Successors. Upon the removal, death, or resignation
of a limited guardian, guardian, or conservator, the Court shall appoint
a successor following the same criteria provided for in the original
appointment.
(i)
Fiduciary Duty. All persons acting under a power of attorney, limited
guardians, guardians, conservators and any person or agency appointed
to act on behalf of a minor under this Code acts in a fiduciary capacity.
As a fiduciary, one owes a duty to act in the best interest of the
minor, exercising sound judgment and avoiding conflicts of interest.
Any person acting under a power of attorney, limited guardianship,
statutory guardianship, or conservatorship, who breaches or his/her
fiduciary duty shall be liable for up to treble damages resulting
from such breach.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, enacted by Tribal Council in
Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Purpose. The purpose of this section is to protect the rights and
the welfare of Indian children, natural parents, and adoptive parents.
It is the policy of the Tribal Council to promote the adoption of
Indian children by members of the Tribe.
(b)
Jurisdiction. The Court shall have jurisdiction over all adoptions
in which the person to be adopted ("adoptee") is an enrolled member
of, or eligible for enrollment in the Grand Traverse Band of Ottawa
and Chippewa; or is an Indian child living within GTB's six-county
service area who has significant ties to the GTB community.
(c)
Who May File a Petition for Adoption. Any person over the age of
21 may file an adoption petition. Married or cohabitating persons
maintaining a domicile together must make a joint petition, except
where one person is the adoptee's natural parent.
(d)
Parental Consent to Adoption. Adoption may be ordered by the Court
upon filing of a Petition and written consent to voluntary termination
of parental rights by both parents or legal guardian. The consent
to termination must be executed in the presence of the Court or before
a Notary Public. The Court make findings of fact that persons consenting
to termination of parental rights for purposes of adoptive placement
have been informed of the nature and consequences of their actions
and that consent is both voluntary and informed.
(1)
Minority-Age Status. The minority-age status of parent(s) shall
not be a bar to the right of consent nor shall it invalidate such
consent.
(2)
Non-Consenting Natural Parents. The parental rights of non-consenting
natural parents may be involuntarily terminated pursuant to § 128
of this Code. The Court may execute consent to adoptive placement
of children of parents whose parental rights have been terminated.
(e)
Withdrawal of Consent. Consent to voluntary termination of parental
rights for the purposes of adoption may be withdrawn by a parent(s)
at any time before the entry of the final order of adoption.
(f)
Petition for Adoption. The petition for adoption shall be filed with
the Court by the adopting parties. It shall be signed by the adopting
parent(s) and shall contain:
(1)
The full name, residence, documentary proof of the date and
place of birth, social security number, and the tribal affiliation
and degree of Indian blood of the adoptee;
(2)
The full name(s), residence(s), date(s) and places(s) of birth,
tribal affiliation and degree(s) of Indian blood, occupation(s), of
the adoptive parents and the AFS certification of fitness.
(3)
Proof of parental consent to the adoption and notice to the
grandparents if applicable;
(4)
A statement by the adopting parent(s) that it is the desire
of the adopting parent(s) that the legal relationship of a parent
and child be established between them and the adoptee; and
(5)
A full description and statement of value of all property owned
or possessed by the adoptee, to the best of the petitioner's knowledge.
(g)
Investigative Report. Upon the filing of a petition for adoption,
the Court shall request the Grand Traverse Band's adoption worker
to inquire into, investigate, and report to the Court and the Anishinaabek
Family Services, within 30 days regarding the stability of the adoptee
for adoption, the financial ability, moral and physical fitness, and
general background of the adopting parent(s); and to make recommendations
on the proposed adoption. A criminal back ground check is required.
The Court may also request any local, state or federal agency to provide
assistance in obtaining information as to the suitability of the adopting
parent(s) for the adoption.
(h)
Recommendation of the Anishinaabek Family Services. Upon completion
of the investigative report, the Tribe's adoption worker shall submit
his/her report to the AFS in order to obtain a certificate of fitness
to be included with the Petition for Adoption or Motion for Order
of Adoptive Placement or Motion for Entry of Final Order of Adoption.
(i)
Initial Hearing. Within 10 days of the receipt of certification of
fitness from AFS, the Court shall schedule a hearing on the petition
for adoption.
(j)
Waiver of Trial Custody Period. If the adoptee has been in the custody
of the adoptive parent(s) for more than six months and AFS recommends
adoption at the initial hearing on petition for adoption, the Court,
upon a motion by the presenting officer, may waive the trial custody
period and enter final adoption Orders. Any party in interest may
file objections to waiver of trial custody period entry of final adoption
orders within seven days of hearing.
(k)
Final Hearing if Trial Custody Period Not Waived. Not less than 90
days, nor more than 120 days, after the adoptee has been in the custody
of the adoptive parent(s), the adoptee and adoptive parent(s) shall
appear before the Court. They shall report to the Court about the
welfare of the adoptee, the current status of their home, and the
desire of the adoptive parent(s) to finalize the adoption.
(l)
Final Adoption Order; Extension of Trial Custody Period. If the Court
is satisfied that the Interests of the adoptee are best served by
the proposed adoption, the final decree adoption may be entered. The
Court may order, or adoptive parent(s) may request, a six month extension
of the trial custody period, after which a final adoption decree must
be entered or the adoptee returned to the custody of the Court.
(m)
Effect of the Final Adoption Order.
(1)
Parent and Child Relationship. After the final adoption order
is entered, the relationship between the adoptive parent(s) and adoptee
shall be vested with all rights, duties and other legal consequences
of a relationship between natural parents and a child and shall thereafter
exist between the adoptee and the adoptive parent(s).
(2)
Tribal Status Not Affected. The status of an adoptee as a member
of the Tribe shall not be affected by adoption. An adoptee who is
eligible for membership in the Grand Traverse Band shall be enrolled
as a tribal member prior to the finalization of the adoption.
(3)
Natural parents Relieved of Parental Responsibilities. After
the final decree of adoption is entered, the natural parents, except
a natural parent who is the spouse of an adoptive parent, shall be
relieved of all parental responsibilities for such adoptee and have
no right regarding the adoptee or right to inherit his/her property
by descent or distribution.
(4)
Assumption of Surname. Minors adopted by order of the Court
shall assume the surname of the person(s) by whom they are adopted,
unless the Court orders otherwise.
(n)
Tribal Membership. Any child who is legally adopted by a member of
the Grand Traverse Band shall have membership rights as though he/she
were the natural child of the adopting parent(s) pursuant to Article
II, Section 1(b)(4)a., of the Tribal Constitution.
(o)
Confidentiality of Proceedings and Record. Unless the Court otherwise
orders, hearings held in proceedings under this section shall be confidential
and shall be held in closed session, without the admission of any
persons other than the interested parties and witnesses. All papers,
records, petitions, or files pertaining to proceedings, except the
final order of adoption, shall be maintained by the Court in locked
files and shall not be released to anyone, except pursuant to Court
order or consent of the adoptee executed after the adoptee attains
the age of 18.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #0220.1147, enacted by Tribal Council in
Special Session on August 28, 2002; as amended by Tribal Act #05-23.1603
enacted by Tribal Council on March 29, 2006.]
(a)
Children's Court Records. A record of all hearings under this Code
shall be made and preserved. All Children's Court records shall be
confidential and shall not be open to inspection to anyone except:
(1)
A child who has come under the jurisdiction of the Children's
court or the child's legal representative.
(2)
The parent(s), guardian, or custodian; of a child who has come
under the jurisdiction of the Children's Court.
(3)
The prospective adoptive parent(s); of a child who comes within
the jurisdiction of the Children's Court
(4)
Children's Court personnel directly involved in the handling
of the case; and
(5)
An adult who, as a child, came within the jurisdiction of the
Children's Court.
(6)
Any other person by order of the Court, having legitimate interest
in the particular case or the work of the Court.
(b)
Law Enforcement and Anishinaabek Family Services Records. Law enforcement
and AFS records and files concerning a child shall be kept separate
from the records and files of adults. All law enforcement and the
Anishinaabek Family Services records shall be confidential and shall
not be open to inspection to anyone except:
(1)
The child; who is or was the subject of case opened by law enforcement
or AFS.
(2)
The parent(s), guardian, or custodian; of child who is or was
the subject of case opened by law enforcement or AFS, so long as parental
rights have not been terminated.
(3)
The child's legal representative.
(4)
Law enforcement and human services personnel, including Anishinaabek
Family Services, the Multi-Disciplinary Team and any tribal entity
directly involved in the handling of the case;
(5)
Children's Court personnel directly involved in the handling
of the case; and
(6)
An adult who was the subject of a case opened by law enforcement
or AFS which came under the jurisdiction of the Children's Court.
(7)
Any other person by order of the Court, having legitimate interest
in the particular case or the work of the Court.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999.]
(a)
Time and Grounds. A party may seek a rehearing or new trial by filing
a written motion stating the basis for the relief sought within 28
days after entry of a final order. The Court may entertain an untimely
motion for good cause shown. A motion will not be considered unless
it presents a matter not previously presented to the Court, or presented
but not previously considered by the Court, which if true, would cause
the Court to reconsider the matter.
(b)
Notice. All parties must be given notice of the motion for rehearing
or new trial in accordance with § 119.
(c)
Response by Parties. Any response by parties must be in writing,
filed with the Court, and served on the opposing parties within five
days after receipt of notice of the motion.
(d)
Procedure. The judge may affirm, modify, or vacate the decision previously
made, in whole or in part, on the basis of the record, the memoranda
prepared, or a hearing on the motion, whichever the Court in its discretion
finds appropriate.
(e)
Hearings. The Court need not hold a hearing before ruling on a motion
for rehearing or new trial. Any hearing conducted shall be in accordance
with the rules for disposition hearings. The Court shall state the
reason for its decision on the motion on the record or in writing.
(f)
Stay. The Court may stay any order pending a ruling on the motion.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999;
as amended by Tribal Act #05-23.1603 enacted by Tribal Council on
March 29, 2006.]
(a)
Who Can Appeal. Any party to a Children's Court proceeding may appeal
a final decision of the Tribal Court with the GTB Appellate Court,
except in those instances in which final order or judgment of the
court was by consent of the parties. An order terminating parental
rights is appealable by right.
(b)
Time for Taking Appeal. Any party seeking to appeal a final Children's
Court order or judgment shall file a written notice of appeal with
the Court within 28 days of entry of the final order.
(c)
Standard of Review. The clearly erroneous standard shall be used
in reviewing final decisions of the Children's Court.
(d)
Record. For purposes of appeal, a record of proceedings shall be
made available to all parties to the proceedings, legal counsel, and
by court order, to those with a demonstrated interest in the outcome
of the appeal. The party seeking the appeal shall pay all costs of
obtaining the record.
(e)
Stay on Appeal. A final Tribal Court order or judgment may be stayed
upon order of the Appellate Court.
(f)
Conduct of Proceedings. All appeals shall be conducted in accordance
with the GTB Rules of Appellate Procedure as long as those provisions
are not in conflict with the provisions of this Children's Code.
[History: Revised Children's Code, adopted by Tribal Council
on January 13, 1999; as amended by Tribal Council October 1, 1999.]
