This chapter provides a process for empowering a person who is not a child’s parent to perform the duties of a primary caregiver, without terminating the parental rights of the parent. It has long been the custom of the Port Gamble S'Klallam Tribe that a child may be cared for by persons other than a parent, without excluding the parent from the youth’s life. It is intended that this chapter be applied with flexibility for a variety of family situations and problems.
For example, guardianship may be used to give a child’s grandparents authority to enroll a child in school and obtain medical care for him or her. A young mother may wish to use guardianship rather than give a child up for adoption. Foster families may petition for guardianship if it appears the child will not be returning to the parent in the near future. A guardianship may be desirable if a child’s parents are dead or have abandoned the child. Another jurisdiction may have terminated the parental rights of the parents but have not arranged for or completed an adoption. This list is by way of example only and is not intended to limit the uses of guardianship.
Guardianship for adult persons will be treated elsewhere in the Port Gamble S'Klallam Law and Order Code.
(Res. 90 A 35, 5/8/1990)
A petition for appointment of a guardian shall include:
(a) 
The name, birthdate, residence, and tribal status of the child who is the subject of the petition;
(b) 
The name, birthdate, residence, and tribal status, if known, of the child’s parent(s) and of the petitioner(s);
(c) 
If the child is residing with someone other than a parent, the location and length at that location; and
(d) 
A statement by the petitioner(s) of the facts and reasons supporting his or her request to be appointed as a guardian.
(Res. 90 A 35, 5/8/1990)
When the Court receives the petition it shall set a hearing date, which shall not be more than forty (40) calendar days after the Court received the petition, unless continued for good cause.
(Res. 90 A 35, 5/8/1990)
Notice of hearing shall be given at least twenty (20) calendar days before the hearing. The notice shall include the date, time, and place of the hearing and a copy of the petition. The notice shall be served on:
(a) 
The petitioner(s);
(b) 
The child;
(c) 
The child’s parent(s);
(d) 
The presenting officer or other designated representative of the Port Gamble S'Klallam Tribe;
(e) 
Any person the Court deems necessary for proper adjudication. The Court may discover that additional persons should be notified after the guardianship proceedings are in progress. The Court may continue the proceedings in order to give those persons notice;
(f) 
Any person the parties believe necessary for the hearing; and
(g) 
If the child is not enrolled in the Port Gamble S'Klallam Tribe, any tribe the child is enrolled in or is eligible for enrollment shall be notified.
(Res. 90 A 35, 5/8/1990)
The petitioner(s) shall arrange to have a guardianship report prepared by the Tribe’s Indian Child Welfare program, by the Department of Social and Health Services, or by another professional who is qualified to prepare such report. The agency preparing the report shall conduct a complete home study and shall consult with the child’s parent(s); all health, education, and social service personnel who have had prior professional contacts with the child; and with the petitioner(s) to determine whether appointment of a guardian would be in the best interest of the child. The report shall contain the recommendation of the Port Gamble S’Klallam Child Support Program, if any, regarding establishment or modification of child support. A check of the criminal records, if any, of the petitioners shall be requested from state and tribal law enforcement authorities. Evidence of alcohol and drug abuse shall be described. The guardianship report shall be in writing and contain the professional opinions of all persons consulted.
(Res. 90 A 35, 5/8/1990; Res. 02 A 098, 9/10/2002 amended this section to add child support provisions.)
Petitioner(s) shall file the guardianship report with the Court at least ten (10) calendar days before the hearing. The Court Clerk shall provide copies of the report to all parties at least five days before the hearing.
(Res. 90 A 35, 5/8/1990)
Any party may file with the Court a report which shall include his or her recommendations regarding the guardianship. The party shall provide copies of the report to all other parties prior to the hearing.
(Res. 90 A 35, 5/8/1990)
The hearing shall be private and closed. Only those persons the Court finds to have a legitimate interest in the proceedings may attend. The Court shall hear testimony to determine whether guardianship is in the best interest of the child and the tribal community. The Court shall consider all guardianship reports submitted for review. All parties shall be given the opportunity to contest the factual contents and conclusions of the guardianship reports.
(Res. 90 A 35, 5/8/1990; Res. 02 A 098, 9/10/2002 amended this section to add child support provisions.)
The Court may appoint a guardian when: 1) the parent(s) of the child has/have consented in writing to the guardianship; the parent is dead; or the child is in need of care as defined under this code; and 2) the following conditions have been proved, by the greater weight of the evidence:
(a) 
Appointment of a guardian is in the best interest of the child and the tribal community; and
(b) 
That the petitioner(s) can provide appropriate and adequate parental care for the child.
(Res. 90 A 35, 5/8/1990)
The Court shall be guided by the following placement preferences in appointing a guardian. The Court may deny a petitioner’s request to be appointed as a guardian if the petitioner does not fall into one of these categories:
(a) 
A member of the child’s extended family;
(b) 
A member of the Port Gamble S'Klallam Tribe or of the Port Gamble S'Klallam tribal community which shall include persons living on or near the Port Gamble S'Klallam Indian Reservation who participate in tribal activities and are considered part of the tribal community, based on evidence presented at the hearing;
(c) 
A member of another Indian tribe; or
(d) 
If the above criteria cannot be met, for good cause shown, placement may be made with any person who has knowledge of and a desire to foster the child’s tribal affiliation and special needs.
(Res. 90 A 35, 5/8/1990)
If a child is not enrolled but is eligible for enrollment or membership in an Indian Tribe, the Indian Child Welfare Worker (or the Court Clerk, in the absence of an Indian Child Welfare Worker) shall assist in making application for membership or enrollment of the child. If an objection to enrollment or membership is filed, the Court shall set the matter for hearing, notify the parent(s), and make a determination based on the best interest of the child.
(Res. 90 A 35, 5/8/1990)
If the Court orders the appointment of a guardian, the order shall declare the child to be a ward of the Court. Unless limited by the Court, the duties and powers assigned to a guardian shall be those of a parent whose parental rights have not been terminated or suspended, toward his or her child, including but not limited to:
(a) 
The guardian shall assure that the child receives adequate food, clothing, health and other professional care, shelter, and education, as needed and appropriate.
(b) 
The authority to consent to marriage and to enlistment in the armed forces of the United States;
(c) 
The authority to consent to an adoption if there are no living parents or if all parental rights have been terminated by a court of competent jurisdiction;
(d) 
A guardian is morally responsible for acts of the child. His or her legal liability for acts of the child shall be limited to actual damage caused by the child while the child is living with the guardians (e.g. the guardian is not responsible for the child's acts if the child has run away);
(e) 
A guardian may bring lawsuits on behalf of the child and otherwise represent the child in legal proceedings if expressly authorized to do so by the Court, on a case by case basis;
(f) 
The guardians have a duty to provide timely informed consent to necessary medical procedures, except sterilization shall require prior Court approval;
(g) 
The guardian cannot enroll a child who is eligible for enrollment in the Port Gamble S'Klallam Indian Tribe, in another tribe without first obtaining court approval;
(h) 
The guardianship does not affect the child’s inheritance rights;
(i) 
A guardian may petition the court for authority to do any act about which he is uncertain of his authority, and the Court may grant such authority after such notice and hearing, if any, as the Court may direct, if such appears to be consistent with the best interests of the child; and
(j) 
The authority to receive child support payments on behalf of the child and to assign the rights to those payments to the Port Gamble S’Klallam Tribe under Section 21.03.63 of this Code.
(Res. 90 A 35, 5/8/1990; Res. 02 A 098, 9/10/2002 amended this section to add child support provisions.)
If the child’s property is subject to a trust (for example, where a parent has died leaving property to a child in a trust set up in the will) , the guardian is bound by the trust provisions. The Court has the power to review any trust in connection with appointment of a guardian and to impose any protections necessary to enforce the trust, to insure that the guardian fully and regularly accounts for trust funds, and to see that the funds are properly managed.
(Res. 90 A 35, 5/8/1990)
The Court has the power to remove a guardian and appoint a replacement guardian whenever necessary for the child’s benefit.
(Res. 90 A 35, 5/8/1990)
If a trust has not already been established to administer a child’s property, the Court may create a trust for the benefit of a child and appoint the Port Gamble S'Klallam Tribe as trustee of the funds. The following rules apply to such trusts:
(a) 
The Tribe shall place the trust funds in a separate, safe, interest bearing account such as those used by the Tribe for its other funds. The account shall be a “blocked account” which allows disbursement only upon order of the Port Gamble S'Klallam Community Court. The account shall be identified in the name of the Port Gamble S'Klallam Tribe as trustee for the named child or children. The funds shall at all times remain in the exclusive jurisdiction of the Port Gamble S'Klallam Tribe.
(b) 
The purpose of the trust shall be to preserve the principal and interest until the child is eligible to receive his or her share of the funds at twenty-one (21) years of age.
(c) 
The child’s guardians, appointed under section 16.03.13 shall be financially responsible for the child’s needs and for arranging all available benefits and services for which the child is eligible. No portion of the trust funds may be disbursed prior to the child’s twenty-first (21st) birthday except upon a showing of extreme hardship to the child. The Tribe or the guardian may petition the Court in such a case to request a hearing. If the Court finds that extreme hardship to the child exists, and no other resources are available to meet the child’s needs, it may order disbursement of a specified amount of funds for a specified purpose. The Court shall require a written accounting to be filed with the Court documenting all expenditures. If more than one disbursement will be necessary (e.g. monthly payments) the Court may so order.
(d) 
The Tribe shall provide the Court with an annual accounting of the trust and an accounting prior to and after any disbursement, including a final distribution to a child upon reaching age twenty-one.
(e) 
A child shall, on or after his 21st birthday, petition the Court to order distribution of his share, free of trust. The child shall provide the Court with a certified copy of his or her birth certificate or an affidavit from Tribal Enrollment as proof of age.
(f) 
If there is more than one child whose funds are in the same trust, each child may petition for his or her share as he or she comes of age, with the remaining funds remaining in trust for those who have not reached age twenty-one (21).
(g) 
If a child dies before reaching age twenty-one (21), his or her share shall be paid to his or her estate. If his or her heirs are other children in the trust, the funds may remain in trust, subject to approval of the Port Gamble S'Klallam Community Court.
(h) 
All funds, while held in trust under this section, are exempt from levy, execution, forfeiture, garnishment, seizure, lien, claim, bankruptcy, or encumbrance whatsoever; they cannot be assigned to another or used as collateral or security. Any agreement purporting to use or obligate funds in any of the foregoing ways is void.
(i) 
The Tribe shall serve as Trustee without compensation. Reasonable bank fees shall be payable from the trust funds.
(j) 
The Tribe may petition the Court at any time to clarify its obligations under this section.
(k) 
All records and files maintained in connection with this section shall be confidential.
(Res. 90 A 35, 5/8/1990)
The Court may order placement of a child with guardians who live off the Port Gamble S'Klallam Indian Reservation if it is in the best interest of the child and the tribal community. However, the guardian shall not move outside a sixty-five mile radius of the Port Gamble S'Klallam Indian Reservation boundaries without prior court approval upon notice and hearing. Guardians shall immediately notify the Court, in writing, of any change of address.
(Res. 90 A 35, 5/8/1990)
The Court may order visitation between the child and parent(s) or any other person, in the best interest of the child and of the tribal community. The Court may specify in the order that supervision is required or may impose other requirements to protect the child.
(Res. 90 A 35, 5/8/1990)
The Court shall state in all guardianship orders whether review hearings shall be required and, if so, the frequency of such hearings.
(Res. 90 A 35, 5/8/1990)
Generally, a guardianship shall terminate upon the death, marriage, adoption, or eighteenth birthday of the child (unless continued by the Court under the Port Gamble S'Klallam rules for adult guardianship); or upon order of the Court. Guardians of tribal trusts shall serve until all trust funds have been distributed under the terms of the trust.
(Res. 90 A 35, 5/8/1990)