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Minnesota Chippewa Tribe - Leech Lake Band - Tribal Code

 

Title 3. Child and Family Protection
3.24. Termination of Parental Rights

LLOjibwe JCT3 CFC § 3.24
3.24. Termination of Parental Rights

A. Purpose

The purpose of this chapter 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 all parties shall be secured their civil rights and that the family unit is of most value to the community and the individual family members when that unit remains united and together, and that termination of the parent-child relationship is of such vital importance that it 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 interest of the child concerned to proceed under this chapter.

B. Grounds for Involuntary Termination:

1. Abandonment. If the parent has not contacted the child by telephone, letter or in person, or provided any financial support for more that one (1) year without a break, or has had only minimal contacts for twenty-four (24) out of the latest forty-eight (48) months, a presumption shall exist that there is no parental relationship existing. The burden shall then be up to the parent to provide that such a relationship does exist. The evidence necessary to rebut this presumption may include, but shall not be limited to, information about efforts to maintain the parent-child relationship, including a showing of regular visits, telephone calls, letters, other contacts, monetary support.

2. Physical Injuries. Willful and repeated physical injuries inflicted on the child by the parent or willful and repeated failure to protect a child from the willful and repeated infliction of physical injuries by any other person.

3. Sexual Abuse. Willful and repeated acts of sexual abuse or sexual exploitation or willful and repeated failure to protect a child from such abuse or exploitation by any other person.

4. Emotional Harm. The return of the child may result in serious permanent emotional damage as supported by the best evidence available in the field of child development.

C. Pre-Filing Requirements.

A petition seeking involuntary termination of the parent-child relationship must establish the following:

1. The child has been found to be an abandoned or neglected child under the code for at least a one (1) year period of time, and has been removed from their parent at the time of this termination hearing for a period of one (1) year or more;

2. The Court has entered an order which states what the parent was required to accomplish to correct their underlying problem(s);

3. The social service agency involved has made a good faith attempt to offer or provide all court ordered and/or necessary services that are reasonably available in the community and which are capable of helping the parent resolve his or her underlying problem(s);

4. There is little likelihood the conditions will be remedied so that the child can be returned to the parents in the near future;

5. Continuation of the parent-child relationship clearly diminishes the child's prospects for successful placement into a permanent and stable home; and

6. Not returning the child to their parent is the least detrimental alternative that can be taken.

D. Who May File Termination Petition

A petition may be filed by:

1. Either parent when termination is sought with respect to the other parent.

2. The Band prosecutor.

3. Any other person possessing a legitimate interest in the matter.

4. A parent may file a petition for the voluntary termination of his/her own parental rights.

No parental rights may be terminated unless a petition has first been filed, notice has been given, and a hearing held in accordance with the provision of this chapter.

E. Contents of Termination Petition

The petition for termination of parental rights shall include the following to the best information and belief of the petitioner:

1. The name, place of residence and tribal affiliation of the petitioner (if other than Band prosecutor);

2. The full name, sex, date and place of birth, residence and tribal affiliation of the child;

3. The basis for the Court's jurisdiction.

4. The relationship of the petitioner to the child, or the fact that no relationship exists;

5. The names, addresses, tribal affiliation, and dates of birth of the child's parents;

6. Where the child's parent is himself a child, the names and addresses of the parents' parents or guardian; and where the parent has no parent or guardian, the members of the parent's extended family.

7. The name and address of the person or agency having legal or temporary custody of the child;

8. The grounds on which the termination is sought under Section 3-24B of this Code (unless voluntary termination);

9. A statement that the pre-filing requirements set forth in Section 3-24C of this Code have been met (unless involuntary termination), and;

10. A list of the assets of the child together with a statement of the value thereof.

When any of the facts required by this section are unknown, the petition shall so state. The petitioner shall date the petition and sign it under oath.

F. Notice

After a petition for the involuntary termination of parental rights has been filed, the Court shall set the time and place for hearing and shall cause notice there of to be given to the petitioner, the parents of the child, the guardian of the person of the child, the person having legal custody of the child, and the child's extended family as determined by the Court.

Where the child's parent is himself a child, notice shall also be given to the parent's parents or guardian of the person unless the Court is satisfied, in exercise of its discretion that said notice is not in the best interest of the parent and that it would serve no useful purpose.

Notice shall be given by personal service. If service cannot be made personally, the Court may authorize service by registered mail at the last known address of the person to be served. If notice cannot be served by registered mail, the Court may authorize service by publication in the manner provided in Leech Lake Rules of Procedure, Rule 5.C(5). All notices served whether personally or by registered mail shall be received by the person named therein no less than ten (10) days prior to the date set for the hearing. No hearing can be held sooner than ten (10) days after the last publication where service is made.

Notice and appearance may be waived by a parent in writing before the Court in the presence of, and witnessed by, a notary public or the Court Administrator, provided that such parent has been apprised by the Court of the meaning and consequences of the termination action. The parent who has executed such a waiver shall not be required to appear at the hearing. Where the parent is a minor, the waiver shall be effective only upon approval by the Court.

G. Pre-Termination Report

Upon the filing of a petition under this chapter for the involuntary termination of parental rights, the Court shall request that the social services department or other qualified agency prepare and submit to the Court a report in writing. The report shall be submitted to the Court no later than ten (10) days before the hearing with copies given to the parents. The purpose of the report is to aid the Court in making a determination on the petition and shall be considered by the Court prior thereto. The Court may request additional reports where it deems necessary.

The report shall include the circumstances of the petition, the investigation, the present condition of the child and parents, proposed plans for the child, and other such facts as may be pertinent to the parent and child relationship, and the report submitted shall include a recommendation and the reasons therefore as to whether or not the parent and child relationship should be terminated.

H. Relinquishment of Parental Rights (Voluntary Termination of Parental Rights)

Parental rights may be relinquished (voluntarily terminated) by a parent in writing, if signed by the parent in the present and with approval of the Court. Relinquishment shall not be accepted or acknowledged by the Court prior to thirty (30) days after birth of the child. The Court shall ensure that the parent understands the consequences of the voluntary termination prior to approving it.

I. Hearing Procedures

The procedures for termination of parental rights hearings shall be in accordance with Sections 3-14B, 3-14C, 31-4D and 3-14E of this Code.

J. Burden of Proof

The burden of proof lies with the petitioner to prove that the allegations in the termination petition are supported by clear, cogent and convincing evidence, and that the best interest of the child will be served by termination of parental rights.

K. Findings of Facts and Conclusions of Law

The Court will make formal findings of fact and conclusions of law as a basis for the written order terminating the parent-child relationship.

L. Result of Termination Order

Upon the termination of parental rights, all rights, powers, privileges, immunities, duties and obligations including any rights, to custody, control, visitation or support existing between the child and parent shall be severed and terminated unless otherwise directed by the Court. The parent shall have no standing to appear at any future legal proceeding concerning the child. Any support obligation existing prior to the effective date of the order terminating parental rights shall not be severed or terminated. The rights of one parent may be terminated without affecting the rights of the other parent. A termination order shall not prevent a child from inheriting property or interest in the same manner as any other natural child from the natural parent. A natural parent may not, however, inherit from a natural child after termination.

M. Child's Continued Right to Benefits

An order terminating the parent-child relationship shall not disentitle a child to any benefit due the child from any third person, agencies, state or other United States, nor shall any action under this Code be deemed to affect any rights and benefits that the child derives from the child's descent from a member of a federally recognized Indian tribe.

N. Custody After Termination Order

If upon entering an order terminating the parental rights of a parent there remains no parent having parental rights, the Court shall commit the child to the custody of a social services agency for the purpose of placing the child for adoption, or in the absence of an adoptive home the agency may place the child in a licensed foster home or with a or relative, or take other suitable measures for the care and welfare of the child. The custodian shall have the authority to consent to the adoption of the child, the marriage of the child, the enlistment of the child in the armed forces of the United States, necessary surgical and other medical treatment for the child and consent to such matters as might normally be required of the child's parent.

O. Future Review Hearings

If a child has not been adopted or permanently placed within six (6) months of the termination order, another six (6) month review hearing will be held. Such six (6) month hearings will continue until the child is adopted or permanently placed.

Resolution No. 03-62, presented and acted upon on December 23, 2002.

Leech Lake Ojibwe Jud. Code, T. 3, Child & Fam. Protect. Code § 3.24, LLOjibwe JCT3 CFC § 3.24

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