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Absentee-Shawnee Tribe of Indians of Oklahoma

 

Juvenile Code

Chapter 2. Children
§ 201. Definitions

§ 202. Evidence of Child Abuse or Neglect in Matrimonial or Child Custody Actions

§ 203. Intake

§ 204. Tribal Prosecutor Intake/Duties

§ 205. Responsibility for Deprived Children

§ 206. Children Taken Into Custody Prior to Filing of Petition--Protective Custody

§ 207. Emergency Medical Treatment or Mental Health Care

§ 208. Immunity From Liability

§ 209. Deferred Prosecution Agreements/Contracts

§ 210. Deferred Prosecution Agreements/Contracts Admissible

§ 211. Petition Form

§ 212. Petition contents

§ 213. Filing Petition When Child in Protective Custody--Time

§ 214. Amendment of Petition

§ 215. Summons--Form

§ 216. When Summons Unnecessary

§ 217. Additional Parties to be Summoned

§ 218. Court Diversion by Stipulation

§ 219. Limitation on Diversions

§ 220. Failure to Appear

§ 221. Appointment of Guardian Ad Litem

§ 222. Adjudicatory Hearing

§ 223. Mentally Ill and Developmentally Disabled Children

§ 224. Admissibility of Prerecorded Statements of a Child Age 12 or Under Who is Victim of Abuse

§ 225. Taking Testimony of Child Age 12 or Under in Room Other Than Courtroom--Recording

§ 226. Court Diversion

§ 227. Dismissal of Petition

§ 228. Sustaining Petition

§ 229. Temporary Orders

§ 230. New Hearing Authorized

§ 231. Dispositional Hearing

§ 232. Social Studies and Reports

§ 233. Case Plan/Service Plan

§ 234. Medical Examination

§ 235. Hearing Purpose

§ 236. Hearing Informal

§ 237. Continuance

§ 238. Order of Protection/Protective Orders

§ 239. Placement Preferences

§ 240. Movement of Child in Custody of the Indian Child Welfare Department

§ 241. Unmanageable and Uncontrollable Children

§ 242. Disposition

§ 243. Review of Disposition Order

§ 244. Review Hearing Reports

§ 245. Motion for Termination of Parental Rights

§ 246. Appointment of Counsel

§ 247. Notice of Hearing to Terminate Parental Rights

§ 248. Termination of Parental Rights by Abandonment

§ 249. Criteria for Termination

§ 250. Criteria for Order Terminating Parental Rights

§ 251. Review of Child's Disposition Following Termination of the Parent-Child Legal Relationship

§ 252. Expert Testimony

§ 253. Effect of Order

§ 254. Adoption Action Not to Be Combined with Termination of Parental Rights

§ 255. Confidential Nature of Proceedings and Record

§ 256. Modification of Decrees or Orders

§ 257. Traditional Custodian's and Grandparent Rights

§ 258. Orders for Support

§ 259. Voluntary Foster/Alternative Care-Authorized

§ 260. Emancipation

AST JUVENILE Code § 201
§ 201. Definitions

(a) “Adjudicatory hearing” means a hearing to determine whether the allegations of a petition (pursuant to the provisions of this Chapter or Chapter 5 of this Code) alleging a child to be neglected, deprived, in-need-of-supervision, or delinquent filed pursuant to this Code are supported by the evidence;

(b) “Aunt” means a person who; by blood or marriage, is:

(1) A female sibling of a biological parent, or

(2) A female cousin of a biological parent, or

(3) A female child of a grandparent, or

(4) Any other female person, who by virtue of an adoption, either of themselves or of a member of their family pursuant to tie laws written or commonly held by virtue of culture, of any Indian Tribe or state would come within the terms of subparagraphs (1), (2), or (3) of this subsection;

(c) “Best Interest of a Child” means all relevant factors including, but not limited to, the following:

(1) Preference of the child's parents as to his custody;

(2) Preference of the child as to his custody;

(3) The interaction and interrelationship of the child with his parents, siblings, and any other persons who may significantly affect a child's best interest;

(4) The child's adjustment to his home, school and community; and

(5) The mental and physical health of all individuals involved;

(d) “Brother” means:

(1) Any male sibling, or

(2) Any other male person, who, by virtue of an adoption either of themselves or of a member of their family pursuant to the laws or customs of any Indian Tribe or state, would hold the relationship of a sibling with the person in question;

(e) “Brother-in-law” means the husband of a sister by blood or marriage;

(f) “Child” means a person under the age of eighteen except any person who has been certified as an adult pursuant to s.548 of this Code, or a person who has been emancipated;

(g) “Child care center” means an institution or facility designed for the care of children licensed or approved pursuant to Tribal ordinance, of Program policy, or if outside the Tribal jurisdiction, by the law of the jurisdiction in which such facility is physically located, or both.

(h) “Child in need of mental health treatment” means a child in need of mental health treatment as defined by Oklahoma's Inpatient Mental Health Treatment of Children Act, 43A O.S. § 5-501 et seq.;

(i) “Child with a disability” means any child who has a physical or mental impairment which substantially limits one or more of the major life activities of the child or who regarded as having such an impairment by a competent medical professional;

(j) “Cousin” means the child of an aunt or uncle;

(k) “Custody” means guardianship of the person;

(l) “Day treatment” means a nonresidential program which provides intensive services to children who reside in their own home, the home of a relative, group home, a foster home or residential child care facility. Day treatment programs include but are not limited to, educational services;

(m) “Deprivation of custody” means the transfer of physical custody by the Court from a parent or a legal custodian to another person, agency, or institution;

(n) “Deprived child” means a child:

(1) who is for any reason destitute, homeless, or Abandoned, if abandoned when the parent, guardian, or custodian has abandoned the child without apparent intent to return, or who has placed him/her informally and without benefit of tribal custom with any other person, and/or has not contributed to the support of the child or maintained personal contact with the child for a period in excess of 12 months

(2) who does not have the proper parental care or guardianship or whose home is an unfit place for the child by reason of neglect, abuse, cruelty, or depravity on the part of the child's parents, legal guardian, or other person responsible for the child's health or welfare or whose parent, guardian, or custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such maltreatment or abuse and prevent it from recurring,

(3) who is a child in need of special care and treatment because of his physical or mental condition including, but not limited to, a child born in a condition of dependence on a controlled dangerous substance, and his parents, legal guardian, or other custodian is unable or willfully fails to provide said special care and treatment,

(4) who is a child with a disability deprived of the nutrition necessary to sustain life or of the medical treatment necessary to remedy or relieve a life-threatening medical condition in order to cause or allow the death of said child if such nutrition or medical treatment is generally provided to similarly situated children without a disability or children with disabilities whether because of the fault of the parent, guardian, or custodian, or because the parent, guardian, or custodian does not have the ability to provide for the child; provided that no medical treatment is necessary if, in the reasonable medical judgment of the attending physician, such treatment would be futile in saving the life of the child,

(5) who is, due to improper parental care and guardianship, excessively absent from school, if said child is subject to compulsory school attendance,

(6) whose parent or legal custodian for good cause desires to be relieved of custody.

However, no child who, in good faith, is being provided with treatment and care by spiritual means alone in accordance with the tenets and practice of a recognized church, religious denomination, traditional healing or medicine or other religious organization by a recognized practitioner thereof shall be considered, for that reason alone, to I)e a deprived child pursuant to any provision of this Code;

(o) “Dispositional hearing” means a hearing to determine the order of disposition which should be made with respect to a juvenile adjudged to be a ward of the Court to determine what treatment should be ordered for the family and the child, and what placement of the child should be made during the period of treatment;

(p) “Emancipation” means a procedure by which a child who is over sixteen (16) years of age and who has, with the real or apparent assent of his parents, demonstrated his independence from his parents in matters of care, custody and earnings may petition the Court for recognition of such status. The term may include, but shall not be limited to, any child who has sole responsibility for his own support, who is married, or who is in the military;

(q) “Emergency custody” means court-ordered custody of a child prior to adjudication of the child;

(r) “Foster care” or “foster care services” means continuous twenty-four hour care and supportive services provided for a child in foster placement, while the child needs foster care;

(s) “Foster child” means a child placed in foster placement;

(t) “Foster family” means all persons living in a foster family home, other than a foster child;

(u) “Foster family home” means the private residence of a family which provides foster care services to a child. Such term shall include it foster family home, a therapeutic foster family home, or the home of a relative;

(v) “Foster parent” means any individual maintaining a foster family home who is responsible for the care of a foster child;

(w) “Foster placement” means a child placing agency or foster family home providing foster care services;

(x) “Group care facilities” means places other than foster family care homes or child care centers providing care for groups of children;

(y) “Grandparent” means:

(1) A biological grandparent, or

(2) The brothers and sisters of a biological grandparent, and their spouses, or

(3) Any other person, who, by virtue of an adoption either of themselves or a member of their family pursuant to the laws or customs of any Indian Tribe or state, would come within the terms of subparagraphs (1) or (2) of this subsection;

(z) “Guardian” means a person other than the child's parent who is by law responsible for that child;

(aa) “Investigation” means a mandatory preadjudicatory process by the Indian Child Welfare Department to determine the safety of a child and to make a recommendation to the Tribal Prosecutor as to whether a petition should be filed alleging a child to be a deprived child or whether other nonadjudicatory alternatives are available;

(bb) “Indian Child Welfare” or “Indian Child Welfare Department” means the Indian Child Welfare program of the Absentee Shawnee Tribe;

(cc) “Juvenile Court” or “Court” means the Juvenile Division of the Absentee Shawnee Tribal Court System, or the Juvenile Court or C.F.R. Court established for other Indian Tribes, or as state Juvenile Courts is appropriate from the context;

(dd) “Least Restrictive Alternative” means restrictions placed on the child which are reasonably related to the court's objectives and are the least drastic methods available to achieve those objectives;

(ee) “Mental health facility” means a mental health facility as defined by the Oklahoma's Inpatient Mental Health Treatment of Children Act, 43A O.S. § 5-501 et seq.;

(ff) “Neglected child” or “dependent child” means a deprived child;

(gg) “Nephew” means the male child of a brother, sister, brother-in-law, or sister-in-law, by blood, marriage, adoption, or custom;

(hh) “Niece” means the female child of a brother, sister, brother-in-law, or sister-in-law, by blood, marriage, adoption, or custom;

(ii) “Out-of-home placement” means a placement, other than a placement in the home of the parent or guardian from whose custody the Court has removed the child, until the child is reunified with the child's parents;

(jj) “Parent” means either a natural parent or a parent by adoption, custom, common law or tradition. Parent does not include an unwed father unless he has acknowledged paternity of the child orally to two or more disinterested parties or in writing under oath unless paternity has been established by judicial action or was established prior to the child's birth;

(kk) “Permanent custody” means Court-ordered custody of an adjudicated deprived child whose parental rights have been terminated;

(ll) “Person responsible for a child's health or welfare” includes a parent; a legal guardian; custodian; a foster parent; a person eighteen (18) years of age or older with whom the child's parent cohabitates or any other adult residing in the home of the child; an agent or employee of a public or private residential home, institution, facility, or day treatment program; or an owner, operator, or employee of a child care facility;

(mm) “Placement agency” means an agency designed the care of children or placement of children licensed or approved pursuant to Tribal ordinance, or, if outside the Absentee Shawnee Tribe's jurisdiction, by the law of the jurisdiction in which such facility is physically located or both;

(nn) “Preliminary inquiry” means an assessment and, Determination as to whether there is sufficient information to proceed with an investigation of abuse or neglect of a child or an investigation of failure to protect by the person responsible for the child when there are allegations of abuse or neglect;

(oo) “Protective custody” means custody of a child taken pursuant to s.206 et seq. of this Code;

(pp) “Protective supervision” means a legal status created by court order under which the child is permitted to remain in his own home under the supervision of the Juvenile Court through the Absentee Shawnee Tribal Indian Child Welfare during the period during which treatment is being provided to the family by the Absentee Shawnee Tribal Indian Child Welfare or other agencies designated by the Court;

(qq) “Relative” means a grandparent, great grandparent, brother, sister, aunt, uncle, nephew, niece, cousin, or any other person related to the child within the fourth degree of consanguinity;

(rr) “Residential child care center” means a twenty-four hour a day residential group care facility at which a specified number of children, normally unrelated, reside with adults other than their parents;

(ss) “Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after legal custody, or guardianship of the person of said child has been vested in another person, agency or institution, but where parental rights have not been terminated, including, but not necessarily limited to, the responsibility for support, the right to consent to adoption, the right to inherit from the child, and the right to reasonable visitation with the child unless restricted by the Court;

(tt) “Shelter” means a facility for the temporary care of a child in physically unrestricting facilities pending court disposition, or execution of a court order for emergency or temporary placement;

(uu) “Stepparent” means a person married to a biological parent, but who is not a biological parent of the child;

(vv) “Sister” means:

(1) Any female sibling, or

(2) Any other female person, who, by virtue of an adoption either of themselves or of a member of their family pursuant to the laws or customs of any Indian Tribe or state, would hold the relationship of a sibling with the person in question;

(ww) “Sister-in-law” means the wife of a brother by flood or marriage;

(xx) “Temporary custody” means Court-ordered custody of an adjudicated deprived child;

(yy) “Termination of parental rights” or “termination of the parent-child legal relationship” means the permanent elimination by Court order of all parental rights and duties, including residual parental rights and duties, but not including the child's right to inherit from the parent whose rights have been terminated and the child's right to receive financial support from the parent whose rights have been terminated;

(zz) “Traditional custodian” means those relatives of the child other than the parents, who, by force of the traditions, customs, and common law of the Absentee Shawnee Tribe have the rights, duties, and responsibilities of assisting the parents in rearing the child and providing for his/her support or may act in loco parentis by virtue of custom and tradition.

(aaa) “Transfer proceeding” means any proceeding in tie Absentee Shawnee Tribal Court System to grant, accept, or decline transfer of any children's case from or to the courts of any Indian Tribe or state whenever such transfer is authorized by Tribal, federal, or state law;

(bbb) “Treatment and service plan” means a written document which includes at least the following:

A plan

(1) for assuring that the child receives proper care;

(2) for assuring that services are provided to the parents, child and placement providers;

(3) to improve the conditions in the parents' home;

(4) to facilitate return of the child to the child's own home or to an alternate permanent placement;

(5) to address the needs of the child while in out-of-home care; and

(6) that discusses the appropriateness of the services for the child under the Plan;

(ccc) “Tribal Court” means the District Court of the Absentee Shawnee Tribe; and

(ddd) “Uncle” means a person who; by blood or marriage, is:

(1) A male sibling of a biological parent, or

(2) A male cousin of a biological parent, or

(3) A male child of a grandparent, or

(4) Any other male person, who by virtue of in adoption, either of themselves or of a member of their family pursuant to he laws written or commonly held by virtue of culture, of any Indian Tribe or state would come within the terms of subparagraphs (1), (2), or (3) of this subsection;

Absentee Shawnee Juvenile Code § 201, AST JUVENILE Code § 201

 

 

 




AST JUVENILE Code § 202
§ 202. Evidence of Child Abuse or Neglect in Matrimonial or Child Custody Actions

(a) If the evidence in an action for a divorce, for alimony without a divorce, for an annulment, for custody of a child or for the appointment of a guardian of the person of a child, for habeas corpus in subsequent proceedings in such actions, indicates that a child is deprived, the Court shall notify the Indian Child Welfare Department that the child may be a victim of abuse or neglect. The Indian Child Welfare Department shall conduct a preliminary inquiry or investigation concerning such report. The Indian Child Welfare Department shall submit all findings regarding the preliminary inquiry to the Tribal Prosecutor and send a copy of its findings to the Court within thirty (30) days of such notice and notify parties to the proceeding of the submission of the report to the Court. The Tribal Prosecutor shall advise the Court within three (3) days of the receipt of said findings whether a deprived petition will be filed. If no deprived petition is filed, the Court may take appropriate action regarding the custody of the child or children or appointment of a guardian for the child or children.

(b) Nothing in this section shall preclude the Court from entering an order to have the child or children taken into protective custody if evidence presented to the Court indicates a child is in surroundings that are such as to endanger the welfare of the child. If a child is taken into protective custody by such an order, the provisions of § 206 applies.

Absentee Shawnee Juvenile Code § 202, AST JUVENILE Code § 202

 

 

 




AST JUVENILE Code § 203
§ 203. Intake

(a) Each allegation of child abuse/neglect, delinquency, in need of supervision, in need of treatment within the Court's jurisdiction shall be investigated by the Indian Child Welfare Department and/or the Tribal Police.

(b) An intake refers to the initial process of gathering information which may be pertinent to provide services or proceed with an investigation.

(c) All intakes shall have a written record.

(d) If the Child Welfare officer determines that the interests of the child of the community require that court action be taken, she shall request in writing that the Tribal Prosecutor file a petition and deliver a copy of the entire case file to the Tribal Prosecutor.

(e) If the Child Welfare officer determines that the interests of the child or of the Tribe do not require court action, Indian Child W fare may offer such services and make such referrals to other agencies as may be feasible to help the family with any defined problems.

Absentee Shawnee Juvenile Code § 203, AST JUVENILE Code § 203

 

 

 




AST JUVENILE Code § 204
§ 204. Tribal Prosecutor Intake/Duties

(a) The Tribal Prosecutor may become involved in a case at any point in any proceeding.

(b) No case shall be entered into in which insufficient evidence exists in order to prosecute unless there is imminent danger to the child, family, or community.

(c) Petitions and any information in any case shall be presented to the Tribal Prosecutor upon request at any reasonable hour.

Absentee Shawnee Juvenile Code § 204, AST JUVENILE Code § 204

 

 

 




AST JUVENILE Code § 205
§ 205. Responsibility for Deprived Children

It shall be the responsibility of the Indian Child Welfare Department to provide care for deprived children who are committed to the care of the Indian Child Welfare Department for custody or guardianship.

Absentee Shawnee Juvenile Code § 205, AST JUVENILE Code § 205

 

 

 




AST JUVENILE Code § 206
§ 206. Children Taken Into Custody Prior to Filing of Petition--Protective Custody

(a) A child may be taken into protective custody prior to the filing of a petition:

(1) By a peace officer or officer of the Court. without a court order if the child's surroundings are such as to endanger the welfare of the child;

(2) By an order of the Court issued upon the application of the Tribal Prosecutor. The application presented by the Tribal prosecutor may be supported by a sworn affidavit which may be based upon information and belief. The application shall state facts sufficient to Demonstrate to the Court that there is reasonable suspicion to believe the child is in need of protection due to abandonment, abuse or neglect, or is in surroundings that are such as to endanger the welfare of the child. The application may be verbal, if verbal, a written application shall be submitted to the Court no later than the close of the next day that the Court is open for business; and

(3) By order of the Court when the child is in need of medical treatment or mental health treatment in order to protect the child's health or welfare and the child's parent, legal guardian, custodian, or other person responsible for the child's health or welfare is unwilling or unavailable to consent to such medical or mental health treatment or other her action pursuant to this Code.

(c) Whenever a child is taken into protective custody:

(1) Such child may be taken to a children's shelter;

(2) Such child may be taken before the Judge of the Court for the purpose of obtaining an order for protective custody. The child may be placed in the custody of the Indian Child Welfare Department, if ordered by the Court, for placement in a relative's home or in foster care if such placement is determined by the Indian Child Welfare Department to meet the needs of the child;

(3) Such child may be taken directly to or retained in a health care facility for medical treatment, when it reasonably appears to the peace officer or officer of the court that the child is in need of immediate medical treatment to preserve the child's health, or as otherwise directed by the Court

(4) Such child may be taken directly to or retained in a mental health facility for mental health care, or inpatient mental health evaluation or inpatient mental health treatment, when it reasonably appears to the peace officer or officer of the court that the child is in need of emergency mental health care to preserve the child's health, or as otherwise directed by the Court; and

(5) The Court shall be immediately notified verbally or in writing, that the child has been taken into protective custody. If notification is verbal, written notification shall be sent to the Court no later than the close of the next day that the Court is open for business.

(d) No child taken into protective custody pursuant to this section shall be confined in any jail, adult lockup, or adult or juvenile detention facility. No child shall be transported or detained in a secure facility in association with delinquent, criminal, vicious, or dissolute persons.

Absentee Shawnee Juvenile Code § 206, AST JUVENILE Code § 206

 

 

AST JUVENILE Code § 207
§ 207. Emergency Medical Treatment or Mental Health Care

(a) If the child who is taken into protective custody due to the need of immediate emergency medical treatment or mental health care to protect the child's health or welfare, the Court may issue an emergency ex parte order upon the application of the Tribal Prosecutor. The application for an emergency ex parte order may be verbal or in writing and shall be supported by facts sufficient to demonstrate to the Court that there is reasonable cause to believe that the child is in need of emergency treatment or care to protect the child's health or welfare.

(b) The emergency ex parte order shall be in effect until a full hearing is conducted. A copy of the application, notice for full hearing and a copy of any emergency ex parte order issued by the Court shall be served upon such parent, guardian, or person having custody or control of the child. Within twenty-four (24) hours of the filing of the application, the Court shall hold a full hearing on the application, regardless of whether an emergency ex parte order had been issued or denied.

Absentee Shawnee Juvenile Code § 207, AST JUVENILE Code § 207

 

 

 




AST JUVENILE Code § 208
§ 208. Immunity From Liability

No peace officer, officer of the Court, or person acting pursuant to Court order authorizing medical treatment or mental health evaluation or treatment in accordance with the provisions of this part for any child found in need of such medical treatment or mental health evaluation or treatment shall have any liability, civil or criminal, for such authorization.

Absentee Shawnee Juvenile Code § 208, AST JUVENILE Code § 208

 

 

 




AST JUVENILE Code § 209
§ 209. Deferred Prosecution Agreements/Contracts

(a) Prior to the filing of a Petition, either the Court, or the Tribal Prosecutor with the consent of the Indian Child Welfare Department may divert any children's case, except a case alleging physical or sexual abuse, from the court process.

(b) Diversion shall be made by entering into a contract with the child's parents, guardian, or other custodian whereby the parent, guardian, or other custodian agrees to undergo specified treatment for the condition noticed, including an agreement to do or refrain from doing certain acts and the Indian Child Welfare Department and the Tribal Prosecutor agree not to file a petition in the case so long as the parent, guardian, or other custodian comply with the contract.

(c) Each such contract shall contain the following:

(1) The specific facts or allegations, including dates, which gave rise to the condition addressed by the contract.

(2) The specific treatment programs the parents, guardian, or custodian agree to complete successfully and the duration.

(3) The specific tasks which the parents, guardian, or custodian agree to do or to refrain from doing.

(4) The specific treatment or other social services to be offered by the Tribe or other agencies and accepted by the family.

(5) A fixed, limited time for the contract to run not exceeding one year.

(6) That the Tribe will not file a petition on the subject of the contract for the facts or allegations stated if the parents, guardian, or custodian comply with each of the contract terms for the full term of the contract.

(7) That each party has received a copy of the contract.

(d) No diversion contract may place physical custody in any person or agency other than the Parents, guardian, or other legal custodian unless it bears the approval in writing of a Judge of the Juvenile Court.

Absentee Shawnee Juvenile Code § 209, AST JUVENILE Code § 209

 

 

 




AST JUVENILE Code § 210
§ 210. Deferred Prosecution Agreements/Contracts Admissible

The diversion contract and any statements or admission of the parties made in negotiating or fulfilling the terms of the contract are admissible as evidence. The parents, guardian, or custodian may choose to prove the contract and show their compliance the terms thereof as a defense to a petition filed concerning the matter of the contract. Upon a showing of compliance with the terms of the contract the Court shall dismiss the petition unless it determines by evidence beyond a reasonable doubt that the child is in imminent danger of severe physical or mental harm.

Absentee Shawnee Juvenile Code § 210, AST JUVENILE Code § 210

 

 

 




AST JUVENILE Code § 211
§ 211. Petition Form

A petition in a deprived child proceeding maybe filed by the Tribal Prosecutor to determine if further action is necessary. Such petitions and all subsequent court documents in such proceedings shall contain a heading and title in substantially this following form:

DISTRICT (SUPREME) COURT THE ABSENTEE SHAWNEE TRIBE OF OKLAHOMA JUVENILE DIVISION

In the Interest of:

)

 

 

)

Case No.

An Alleged

)

 

Absentee Shawnee Juvenile Code § 211, AST JUVENILE Code § 211

 

 

 




AST JUVENILE Code § 212
§ 212. Petition contents

The petition shall be verified and may be upon information and belief. The petition shall set forth plainly the facts which bring the child within the Court's jurisdiction; the name, age, and residence of the child and the names and residences of his parents, guardian, or other custodian or of his nearest relative if no parent, guardian, or other custodian is known; the relief requested and an endorsement of witnesses intended to be called by the petitioner; if any facts required are not known by the petitioner, the petitioner shall so state, along with the reasons why said facts are not known to petitioner. Any action pertaining to the possible termination of the legal relationship between parent(s) and child(ren) must contain a motion for such action based on continued disregard for the reasonable orders of the Courts of the Absentee Shawnee Tribe. The petition shall be signed by the Tribal Prosecutor or designee. A copy of the petition shall be attached to and delivered with the summons.

Absentee Shawnee Juvenile Code § 212, AST JUVENILE Code § 212

 

 

 




AST JUVENILE Code § 213
§ 213. Filing Petition When Child in Protective Custody--Time

(a) If a child has been taken into protective custody (pursuant to the provisions of this Code), before a petition for a deprived child proceeding has been filed, the petition shall be filed and a summons issued within five (5) judicial days from the date of such assumption of custody. Except as otherwise provided by this section, if such petition is not filed and a summons issued thereon as required by this subsection, custody of the child shall be released to the child's parent, legal guardian, custodian, or another responsible adult.

(b) If the child has been taken into custody and upon allegations of cruelty on the part of the child's parents, legal guardian, or custodian, the five-day limitation provided for in subsection (a) of this section shall not cause the child to be released to such person. In these cases a petition shall be filed within thirty (30) days of the child being taken into custody.

Absentee Shawnee Juvenile Code § 213, AST JUVENILE Code § 213

 

 

 




AST JUVENILE Code § 214
§ 214. Amendment of Petition

No pleading subsequent to the petition for a deprived child proceeding is required, and the filing of any motion or pleading shall not delay the holding of the adjudicatory hearing. A petition may be amended by order of the Court at any time before an order of adjudication has been made, provided that the Court shall grant the parties such additional time to prepare as may be required to insure a full and fair hearing. A petition shall be deemed to been amended to conform to the proof where the proof does not change the substance of the act, omission or circumstance alleged. However, the Court shall not amend the adjudicatory category prayed for in the petition.

Absentee Shawnee Juvenile Code § 214, AST JUVENILE Code § 214

 

 

 




AST JUVENILE Code § 215
§ 215. Summons--Form

(a) Upon filing of a petition the Court Clerk shall issue a summons to the respondents and the child as in other civil cases. The summons shall be in substantially the following form:

IN THE DISTRICT COURT OF ABSENTEE SHAWNEE TRIBE OF OKLAHOMA JUVENILE DIVISION

SUMMONS

THE ABSENTEE SHAWNEE TRIBE to:

, Respondents.

YOU ARE HEREBY NOTIFIED, that a petition has been filed in the District Court of the Absentee Shawnee Tribe alleging that the above named is a deprived child and that as the (parent) (guardian) (custodian) of said child you have been named as the Respondent, all as more fully set out in the attached petition

YOU ARE THEREFORE ORDERED TO APPEAR at Courtroom of the District Court of the Absentee Shawnee Tribe, (Address of the Court), on the ____ day of ____, ____ at the hour of ____ o'clock ____.m. and to there remain subject to the call of the Court until discharged so that you may be advised of the allegations contained in the petition, and may answer that you admit or deny the allegations of the petition.

YOU ARE FURTHER ORDERED, if the above named child is in physical custody or subject to your.control, to bring, the child to Court with you.

You may seek the advice of an attorney on any matter relating to this action at your own expense.

FAILURE TO RESPOND TO THIS SUMMONS OR TO APPEAR AT THIS HEARING CONSTITUTES CONSENT TO THE ADJUDICATION OF THIS CHILD(REN) AS DEPRIVED CHILD(REN) AND MAY ULTIMATELY RESULT IN LOSS OF CUSTODY OF THIS CHILD(REN) OR THE TERMINATION OF PARENTAL RIGHTS TO THIS CHILD(REN).

____

Court Clerk

(Seal)

(Return as in other civil cases)

(b) The summons shall be served on the person who has actual custody of the child, and if the child has reached the age of twelve (12) years of age, a copy shall be served on the child. If the person who has actual custody (of the child) shall be other than a parent or guardian of the child, a copy of the summons shall be served on the parent or guardian, or both, as hereinafter provided. A copy of the summons shall be served on a custodial parent, guardian, or next friend. If no parent or guardian can be found, a summons shall be served on such other person or persons as the Court shall designate. Summons may be issued requiring the appearance of any other person whose presence is necessary.

(c) Service of summons shall be made as provided for in civil actions or service maybe made by certified mail to such person's last known address, requesting a return receipt from the addressee only. If the address of the person to be summoned is not known, or if the mailed summons is returned, the Court may order that notice of the hearing be published once in a newspaper of get feral circulation in the jurisdiction, and a copy of the summons shall be mailed by regular first-class mail to the last-known address of the parent.

(d) The Court shall not hold the hearing until at least forty-eight (48) hours after the service of the summons, except with the consent of the parent or guardian.

(e) If notice is published, the Court shall not hold the hearing until at least ten (10) days after the date of publication.

(f) If one or more persons must be served by publication, the Court may delay the date of hearing, with reasonable notice to the other persons who have been served or are properly and legally notified, to any date that the Court determines to be reasonable and may proceed with the action.

(g) An order determining that a child is deprived shall not become final until thirty (30) days after the date of the publication of the notice.

Absentee Shawnee Juvenile Code § 215, AST JUVENILE Code § 215

 

 

 




AST JUVENILE Code § 216
§ 216. When Summons Unnecessary

A summons need not issue or be served upon any respondent who appears voluntarily, or who waives service in writing before a notary public or Court Clerk, or who has promised to appear at the hearing in writing upon the release of a child from emergency custody or otherwise, but any such person shall be entitled to a copy of the petition and summons upon request.

Absentee Shawnee Juvenile Code § 216, AST JUVENILE Code § 216

 

 

 




AST JUVENILE Code § 217
§ 217. Additional Parties to be Summoned

The Court on its own motion or on the motion of any party may join as a respondent or require the appearance of any person it deems necessary to the action and authorize the issuance of a summons directed to such person.

Absentee Shawnee Juvenile Code § 217, AST JUVENILE Code § 217

 

 

 




AST JUVENILE Code § 218
§ 218. Court Diversion by Stipulation

(a) After filing a petition, Indian Child Welfare and the Tribal Prosecutor may divert any children's case, except a case alleging physical or sexual abuse from the adjudicatory process with the consent of the respondents and the Court by stipulation to the validity of the allegations in the petition if:

(1) The Court has informed the child and his parents, guardian, or custodian of their rights to:

(i) deny the allegations of the petition and require the Tribe to prove each allegation by admissible evidence;

(ii) confront and cross-examine witnesses against them and to call witnesses on their own behalf;

(iii) a trial by a jury of six persons at the adjudicatory stage where a jury trial is available;

(iv) be represented by counsel at their own expense at each stage of the proceedings, and, to the extent counsel is available at no fee, to have counsel appointed for them if they cannot afford private counsel;

(vi) and the Court believed they understand their rights.

Absentee Shawnee Juvenile Code § 218, AST JUVENILE Code § 218

 

 

 




AST JUVENILE Code § 219
§ 219. Limitation on Diversions

There shall be no diversion where the respondents referred to the Court by any person has had any sustained petition for deprived child in the preceding sixty (60) months.

Absentee Shawnee Juvenile Code § 219, AST JUVENILE Code § 219

 

 

 




AST JUVENILE Code § 220
§ 220. Failure to Appear

(a) Any person served with a summons who fails to appear without reasonable cause may be proceeded against for contempt of court and a bench warrant may issue.

(b) If after reasonable effort the summons cannot be served or if the welfare of the child requires that he be brought immediate into the custody of the Court, a bench warrant may be issued for the parents, guardian, or other custodian of the child, or a Pick Up Order may issue for the child as provided by law.

(c) When a parent or other person who signed a written promise to appear and bring the child to Court, or who has waived or acknowledged service fails to appear with the child on the date set by the Court, a bench warrant may be issued for the parent or other person, the child, or both.

Absentee Shawnee Juvenile Code § 220, AST JUVENILE Code § 220

 

 

 




AST JUVENILE Code § 221
§ 221. Appointment of Guardian Ad Litem

(a) The Court may appoint a guardian ad litem to protect the interest of a child in proceedings pursuant to this Chapter when:

(1) No parent, guardian, custodian, or relative of the child appears at the first or any subsequent hearing in the case; or

(2) The Court finds that there may be a conflict of interest between the child and parent, guardian, or other custodian; or

(3) The Court finds that it is in the child's interest, and welfare, and necessary, whether or not a parent, guardian, or other custodian is present.

(b) The Court may appoint a guardian ad litem for any parent in proceedings pursuant to this Code who has been determined to be mentally ill by a Court of competent jurisdiction or is developmentally disabled; except that, if a conservator has been appointed, the conservator may serve as the guardian ad litem. If the conservator does not serve as guardian ad litem, the conservator shall be informed that a guardian ad litem has been appointed.

(c) At the time any child first appears in Court, if it is determined that there is no guardian of the person, the Court shall appoint a guardian of the person of the child before proceeding with the matter.

(d) In all proceedings brought for the protection of a child suffering from abuse or non-accidental injury, a guardian ad litem may be appointed for said child. Said guardian shall have the power to represent the child in the legal proceedings.

(e) All guardians ad litem shall, whenever, practical, be required to personally visit the place of residence of the child.

Absentee Shawnee Juvenile Code § 221, AST JUVENILE Code § 221

 

 

 




AST JUVENILE Code § 222
§ 222. Adjudicatory Hearing

(a) At the adjudicatory hearing, which shall be conducted as provided in the rules of civil procedure, the Court shall consider whether the allegations of the petition are supported by a preponderance of the evidence; except that jurisdictional matters of the age and residence of the child shall be deemed admitted by or on behalf of the child unless specifically denied prior to the adjudicatory hearing.

(b) When it appears that the evidence presented at hearing discloses issues not raised in the petition, the Court may proceed immediately to consider the additional or different matters raised by the evidence.

(c) In such event, the Court, on the motion of party to the case or on its own motion, shall order the petition to be amended to conform to the evidence.

(d) If the amendment results in a substantial departure from the original allegations in the petition, the Court shall continue the hearing on the motion of any interested party, or the Court may grant a continuance on its own motion. If it finds it to be in the best interests of the child or any other party to the proceeding.

Absentee Shawnee Juvenile Code § 222, AST JUVENILE Code § 222

 

 

 




AST JUVENILE Code § 223
§ 223. Mentally Ill and Developmentally Disabled Children

(a) If it appears from the evidence presented at an adjudicatory hearing or otherwise that the child may be mentally ill or developmentally disabled, as these terms are defined in this section, the Court shall order that the child be examined by a physician, psychiatrist, or psychologist and may place the child in a hospital or other suitable facility for the purpose of examination for a period not to exceed thirty (30) days; in the custody and control of the Indian Child Welfare Department.

(b) A suitable facility for the purpose of examination shall be a facility designated by the Court for treatment and evaluation, but neither a Tribal, city or county jail nor a detention facility shall be considered a suitable facility under any circumstances.

(c) If the report of the examination made pursuant to subsection (a) of this section states that the child is mentally ill to the extent that hospitalization or institutional confinement and treatment is required, the Court may order such hospitalization, institutional confinement, or treatment prior to, during, or after adjudication.

(d) The Court-may dismiss the original petition when a child who has been ordered to receive treatment is no longer receiving treatment, due to completion of treatment.

(e) The Court shall set a time for resuming the hearing on the original petition when:

(1) The report of the examination made pursuant to subsection (a) of this Section states that the child is not mentally ill to the extent that hospitalization or institutional confinement and treatment is required;

(2) The child is found not to be mentally ill;

(3) The report of the examination made pursuant to subsection (a) of this Section states that the child is developmentally disabled but not mentally ill.

(f) “Mentally ill person” means a person who is of such mental, condition that a person is in need of supervision, treatment, care, or restraint.

(g) “Developmental disability” means a disability attributable to mental retardation, cerebral palsy, epilepsy, autism, or a neurological impairment, which may have originated during the first eighteen years of life which can be expected to continue indefinitely, and which constitutes a substantial handicap.

(h) “Mentally retarded person” means a person whose intellectual functions have been deficient since birth or whose intellectual development has been arrested or impaired by disease or physical injury to such an extent that the person lacks sufficient control, judgment, and discretion to manage property or affairs or who, by reason of this deficiency and for the persons own welfare or the welfare or safety of others, requires protection, supervision, guidance, training, control, or care.

Absentee Shawnee Juvenile Code § 223, AST JUVENILE Code § 223

 

 

 




AST JUVENILE Code § 224
§ 224. Admissibility of Prerecorded Statements of a Child Age 12 or Under Who is Victim of Abuse

(a) This section shall apply only to a proceeding affecting the parent-child, guardian-child or family relationship in which a child twelve (12) years of age or younger is alleged to have been abused, and shall apply or apply to the statement of that child or other child witness.

(b) The recording of an oral statement of the child made before the proceedings begin is admissible into evidence if:

(1) The Court determines that the time, content, and circumstances of the statement provide sufficient indicia of reliability; no corroboration of the child's statement is necessary for admission;

(2) No attorney for any party is present when the statement is made;

(3) The recording is both visual and aural and is recorded on film or videotape or by other electronic means;

(4) The recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered;

(5) The statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child's statement and not made solely as a result of a leading or suggestive question(s);

(6) Every voice on the recording is identified ;

(7) The person conducting the interview of the child in the recording is present at the proceeding and is available to testify; or be cross-examined by any party; and

(8) Each party to the proceeding is afforded an opportunity to view the recording before it is offered into evidence, and a copy of a written transcript transcribed by a licensed or certified court reporter is provided to the parties.

Absentee Shawnee Juvenile Code § 224, AST JUVENILE Code § 224

 

 

 




AST JUVENILE Code § 225
§ 225. Taking Testimony of Child Age 12 or Under in Room Other Than Courtroom--Recording

(a) This section shall apply only to a proceeding affecting the parent-child, guardian-child or family relationship in which a child twelve (12) years of age or younger is alleged to have been abused, and shall apply only to the statement of that child or other child witness.

(b) The Court may, on the motion of a party to the proceeding, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the Court, the finder of fact and the parties to the proceeding. Only an attorney for each party, the guardian ad litem for the child or other person whose presence would contribute to the welfare and well-being of the child and persons necessary to operate the equipment may be present in the room with the child during his testimony. Only the attorneys for the parties may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them.

(c) The Court may, on the motion of a party to the proceeding, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the Court, the finder of fact and the parties to the proceeding. Only those persons permitted to be present at the taking of testimony under subsection (b) of this section may be present during the taking of the child's testimony. Only the attorneys for the parties may question the child, and the persons operating the equipment shall be confined from the child's sight and hearing. The Court shall ensure that:

(1) The recording is both visual and aural arid is recorded on film or videotape or by other electronic means;

(2) The recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered;

(3) Every voice on the recording is identified; and

(4) Each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom, and a copy of a written transcript transcribed by a licensed or certified court reporter is provided to the parties.

(d) If the testimony of a child is taken as provided by subsections (b) or (c) of this section, the child shall not be compelled to testify in Court during the proceeding.

Absentee Shawnee Juvenile Code § 225, AST JUVENILE Code § 225

 

AST JUVENILE Code § 226
§ 226. Court Diversion

At any time during the adjudicatory process, but prior to the entry of order sustaining the petition as provided in § 228 of this Code, a Court Diversion by virtue of Stipulation may be entered as provided in § 218 of this Code.

Absentee Shawnee Juvenile Code § 226, AST JUVENILE Code § 226

 

 

 




AST JUVENILE Code § 227
§ 227. Dismissal of Petition

When the Court finds that the allegations of the petition are not supported by a preponderance of the evidence, the Court shall order the petition dismissed and the legal custody of the child shall be returned to his parents, guardian, or other custodian, further they shall also be discharged from any restriction previously ordered.

Absentee Shawnee Juvenile Code § 227, AST JUVENILE Code § 227

 

 

 




AST JUVENILE Code § 228
§ 228. Sustaining Petition

When the Court finds that the allegations of the petition are supported by a preponderance of the evidence, the Court shall sustain the petition and make an order of adjudication setting forth the child to be a deprived child and making the child a ward of the Court. In cases concerning a deprived child, evidence that child abuse or non-accidental injury has occurred shall constitute prima facie evidence that such child is deprived and such evidence shall be sufficient to support an adjudication under this section.

Absentee Shawnee Juvenile Code § 228, AST JUVENILE Code § 228

 

 

 




AST JUVENILE Code § 229
§ 229. Temporary Orders

Upon sustaining a petition the Court shall make such dispositional orders as may be necessary to protect the child prior to the dispositional hearing which shall be held without undue delay or may choose of its own volition to hold a dispositional hearing at any reasonable time.

Absentee Shawnee Juvenile Code § 229, AST JUVENILE Code § 229

 

 

 




AST JUVENILE Code § 230
§ 230. New Hearing Authorized

(a) A parent, guardian, custodian, or next friend of any child adjudicated under this Code, or any person affected by an order in a proceeding under this Chapter, may petition the Court for a new hearing on the following grounds:

(1) That new evidence, which was not known or could not with due diligence have been made available at the original hearing and which might affect the order, has been discovered;

(2) That irregularities in the proceedings prevented a fair hearing.

(b) If it appears to the Court that the motion should be granted, it shall order a new hearing and shall make such disposition of the case as warranted by all of the facts and circumstances and the best interest of the child.

Absentee Shawnee Juvenile Code § 230, AST JUVENILE Code § 230

 

 

 




AST JUVENILE Code § 231
§ 231. Dispositional Hearing

After making an order of adjudication, finding the child to be a ward of the Court, the Court shall hear evidence on the question of the proper disposition best serving the interests of the child and the Tribe at a hearing scheduled for that purpose.

Absentee Shawnee Juvenile Code § 231, AST JUVENILE Code § 231

 

 

 




AST JUVENILE Code § 232
§ 232. Social Studies and Reports

(a) The Court may order any agency within its jurisdiction and/or request any other agency to prepare and submit to the Court at any point in the proceedings a social study, home study, family or medical history or other reports which may be helpful in determining proper treatment and disposition for the family.

(b) Such reports shall be filed with the Court and a copy delivered to the parties or their attorney at the earliest opportunity.

Absentee Shawnee Juvenile Code § 232, AST JUVENILE Code § 232

 

 

 




AST JUVENILE Code § 233
§ 233. Case Plan/Service Plan

(a) In every case the Court shall order Indian Child Welfare to prepare a detailed case plan for the treatment and disposition of the problems identified in the adjudication.

(b) The case plan shall contain:

(1) A brief social and family history.

(2) A brief statement of the causes of the Court exercising its jurisdiction.

(3) The specific treatment programs the family is required to complete, their duration, and what is expected to be accomplished.

(4) The specific actions the parents, guardian, other custodian, or child should be ordered to do or refrain from doing aid the reasons therefore.

(5) The specific treatment or other social services offered by the Tribe or other agencies which the family should be required to accept.

(6) The person or agency to be vested with custody of the child if the child cannot remain in its own home, and a detailed plan describing how and when the child will be returned to its home under supervision and when court supervision should cease.

(7) The goal(s) of the plan, whether that be reunification, independent living, adoption, etc.

(c) The case plan shall be filed with the Court and a copy delivered to the parties or their attorney at the earliest opportunity.

(1) The case plan must contain reasonable goals that can be accomplished. Innovative plans shall be utilized in order to gain a higher prospective degree of success.

Absentee Shawnee Juvenile Code § 233, AST JUVENILE Code § 233

 

 

 




AST JUVENILE Code § 234
§ 234. Medical Examination

The Court may have the child examined by a physician, psychiatrist, or psychologist, and the Court may place the child in a hospital or other suitable facility for this purpose.

Absentee Shawnee Juvenile Code § 234, AST JUVENILE Code § 234

 

 

 




AST JUVENILE Code § 235
§ 235. Hearing Purpose

The purpose of the dispositional hearing is for the Court to determine the treatment which should be ordered to attempt to correct the problems which led to the adjudication, and to provide for the health, welfare, and safety of the child during the treatment period or, if treatment cannot or does not correct the problems after actual attempts have been made to do so, to provide for the long term health, welfare, and safety of the child.

Absentee Shawnee Juvenile Code § 235, AST JUVENILE Code § 235

 

 

 




AST JUVENILE Code § 236
§ 236. Hearing Informal

The dispositional hearing shall be informal and the rules of procedure and evidence shall not apply so that all pertinent information may be considered in determining treatment and disposition. However, when feasible, the Court shall order the writer of any report or study to appear and answer questions regarding that report if it be challenged by any party.

Absentee Shawnee Juvenile Code § 236, AST JUVENILE Code § 236

 

 

 




AST JUVENILE Code § 237
§ 237. Continuance

(a) The Court may continue a hearing, either on its own motion or on the motion of any interested party, for a reasonable period to receive reports or other evidence, but the Court may continue the hearing for good cause the motion of any interested party in any case where the termination of the parent-child legal relationship is a possible consequence.

(b) If the hearing is continued, the Court shall make an appropriate order for detention of the child for release in the custody of parents, guardian, or other responsible person or agency under such conditions of supervision as the Court may impose during the continuance.

(c) In scheduling investigations and hearings, the Court shall give priority to proceedings concerning a child who is in detention or who has otherwise been removed from his home before an order of disposition has been made.

Absentee Shawnee Juvenile Code § 237, AST JUVENILE Code § 237

 

 

 




AST JUVENILE Code § 238
§ 238. Order of Protection/Protective Orders

(a) The Court may make an order of protection in assistance o or as a condition of, any decree of disposition authorized by this chapter .. The order of protection may set forth reasonable conditions of behavior to be: observed for a specified period by the parent, guardian, or any other person who is a party to the proceedings.

(b) The order of protection may require any such person:

(1) To stay away from a child or particular residential area;

(2) To permit a parent to visit a child only at stated periods or in supervised conditions;

(3) To abstain from offensive conduct against a child, parent, or parents, guardian, or any other person to whom Custody of a child has been given;

(4) To give proper attention to the care of the home;

(5) To cooperate in good faith with an agency:

(i) which has been given legal custody of a child;

(ii) which is providing protective supervision of a child by court order; or

(iii) to which the child has been referred by the Court;

(6) To refrain from acts of commission or omission that tend to make a home an improper place for a child; or

(7) To perform any legal obligation of support.

(c) When such an order of protection is made applicable to a parent or guardian, it may specifically require active participation in the rehabilitation process and may impose specific requirements upon such parent or guardian, subject to the penalty of contempt for failure to comply with such order without good cause, as provided in subsection (e) of this section.

(d) After notice and opportunity for hearing is given to a person subject to an order of protection, the order may be terminated, modified, or extended for a specified period of time if the Court finds that the best interests of the child and the Tribe will be served thereby.

(e) A person failing to comply with an order of protection without good cause may be found in contempt of court.

Absentee Shawnee Juvenile Code § 238, AST JUVENILE Code § 238

 

 

 




AST JUVENILE Code § 239
§ 239. Placement Preferences

(a) In making a placement of or committing legal custody of a child to some person in the dispositional process whether for foster/alternative care or adoption, the Court shall place the child in the following descending order of preference:

(1) the natural parents, adoptive parents, or, step-parents as the case may be;

(2) A preference for placement, in the following order, shall be given to:

(i) Natural, adoptive or step-parents;

(ii) A member of the child's extended family; a child's extended family is defined to mean any familial or culturally defined clan or band relationships within the Absentee Shawnee Tribe or another Tribe.

(iii) A member of the Absentee Shawnee Tribe;

(iv) A member of an Indian Tribe;

(v) A home licensed by the Absentee Shawnee Shawnee Tribe's Indian Child Welfare Department;

(vi) A home licensed by another Indian Tribe;

(vii) An Indian home licensed by a State;

(viii) A public or private institution for children approved by the Absentee Shawnee Tribe's Indian Child Welfare: Department or operated by an Indian organization which has programs suitable to meet the needs of an Absentee Shawnee child.

(b) Where appropriate the Court may consider the preference of the parents and the proximity of the prospective foster/alternative care home to the child's home in applying these preferences.

(c) For each possible placement, the Court shall consider the willingness, fitness, ability, suitability, and availability of each person in a placement category before considering the next lower level of placement preference.

(d) The Court may place the child in the custody of the Indian Child Welfare for further placement pursuant to subsection (a) of this section. When the Court does so, the agency shall place said child in accordance with the preferences described above.

(e) State courts shall follow the placement preference rules outlined herein.

Absentee Shawnee Juvenile Code § 239, AST JUVENILE Code § 239

 

 

 




AST JUVENILE Code § 240
§ 240. Movement of Child in Custody of the Indian Child Welfare Department

(a) The Indian Child Welfare Department shall notify the Court, the Tribal Prosecutor, and the Guardian Ad Litem whenever a child in the custody of the Indian Child Welfare Department is moved from one location to another. Foster parents shall be notified by the Indian Child Welfare Department prior to movement of the child pursuant to the provisions of Chapter 4 of this Code.

(b) The Indian Child Welfare Department shall inform the Court and attorney regarding the location of the child unless the movement was due to an emergency situation, in which case the notification required under this paragraph shall be within one (1) business day after such movement. As used in this subsection “emergency situation” means a movement of the child requested by a person having actual physical custody of a child, if the request is made at a time when the business offices of the parties to be notified are closed, or if movement is for emergency medical treatment.

(c) The Indian Child Welfare Department shall not move any deprived child from one placement to another if the child has already been moved once since the last court hearing without first obtaining the approval of the Court following a hearing into the reasons and necessity for moving the child. However, the Indian Child Welfare Department may move the child due to an emergency, in which case a hearing shall be conducted concerning the reasons and necessity for moving the child, if requested in writing, within ten (10) days following the moving of the child. Court approval shall not be required for movement to or from a children's shelter due to an emergency, including a placement failure, a placement disruption, or similar cause.

Absentee Shawnee Juvenile Code § 240, AST JUVENILE Code § 240

 

 

 




AST JUVENILE Code § 241
§ 241. Unmanageable and Uncontrollable Children

If a child who has been adjudicated as a deprived child, and who has been placed in the custody of the Indian Child Welfare Department becomes unmanageable and uncontrollable while in the legal custody of the Indian Child Welfare Department, the Department may return the child to the Court for further disposition or may provide information to the Tribal Prosecutor and request the filing of a petition alleging the child to be delinquent, in need of supervision, or in need of mental health treatment, if such petition is warranted by the facts in the case.

Absentee Shawnee Juvenile Code § 241, AST JUVENILE Code § 241

 

 

 




AST JUVENILE Code § 242
§ 242. Disposition

When a child has been adjudicated to be deprived, the Court shall enter a dispositional order, which shall include one or more of the following provisions the Court finds appropriate:

(a) The Court may place the child in the legal custody of one or both parents or the guardian, with or without protective supervision under such conditions as the Court may impose.

(b) The Court may place the child in the legal custody of a relative or other suitable person, with or without protective supervision, such conditions as the Court may impose, in accordance with § 239 of this Code.

(c) The Court may place legal custody in the Indian Child Welfare Department for placement in a family care home, or other child care facility in accordance with § 239 of this Code.

(d) The Court may order that the child be examined or treated by a physician, surgeon, psychiatrist, or psychologist or that he receive other special care and may place the child in a hospital or other suitable facility for such purposes.

Absentee Shawnee Juvenile Code § 242, AST JUVENILE Code § 242

 

 

 




AST JUVENILE Code § 243
§ 243. Review of Disposition Order

Every disposition order regarding a child adjudicated to be deprived shall be reviewed by the Court at least every six (6) months until such time as the conditions which caused the child to be adjudicated have been corrected or the parental rights of the parent or parents are terminated and a final adoption decreed.

Absentee Shawnee Juvenile Code § 243, AST JUVENILE Code § 243

 

 

 




AST JUVENILE Code § 244
§ 244. Review Hearing Reports

(a) The Indian Child Welfare Department shall cause to be prepared for each review hearing required herein a written report concerning each child who is the subject of such review.

(b) Said report shall include but not limited to:

(1) A summary of the physical, mental, and emotional condition of the child, the conditions existing in the out-of-home Placement where the child has been placed, and the child's adjustment thereto;

(2) A report on the child's progress in school and, if the child has been placed outside the child's home, the visitation exercised by the parents of the child or other persons authorized by the Court;

(3) Services being provided to a child sixteen (16) years of age.or older to assist in the transition from out-of-home care or other placement to independent living; and

(4) Any efforts on the part of the parent o parents to correct the conditions which caused the child to be adjudicated deprived. Specific recommendations, giving reasons therefor, whether:

(i) the parental rights of the parent or parents of the child should be terminated and the child placed for adoption,

(ii) the child should remain in the home or be placed outside of the home of the child's lawful parents, or

(iii) the child should remain outside the home or be returned to the home from which the child was removed.

(c) The Guardian Ad Litem representing a child m may submit a report to the Court for presentation at the review hearing to assist the court in reviewing the placement or status of the child. The legal custodian shall not deny to a child the right of access to counsel and shall facilitate such access.

(d) All reports shall be filed in the Court no later five (5) days prior to the review. Further, the reports are to be to the Tribal Prosecutor, Guardian Ad Litem, and other parties or attorneys involved no later than five (5) days prior to the review. All incidents and information involving the five days, prior to the review may be given in an addendum to the report in writing or orally, at the review hearing.

Absentee Shawnee Juvenile Code § 244, AST JUVENILE Code § 244

 

 

 




AST JUVENILE Code § 245
§ 245. Motion for Termination of Parental Rights

Termination of a parent-child legal relationship shall be considered only after the filing of a written motion alleging the factual grounds for termination, and termination of a parent-child legal relationship shall be considered at a separate hearing following an adjudication of a child as deprived or neglected. Such motion shall be filed at least thirty (30) days before such hearing, and shall be signed by the Tribal Prosecutor or designee.

Absentee Shawnee Juvenile Code § 245, AST JUVENILE Code § 245

 

 

 




AST JUVENILE Code § 246
§ 246. Appointment of Counsel

(a) After a motion for termination of a parent-child legal relationship is filed pursuant to this Chapter, the parent or parents shall be advised of the right to counsel, at their own expense, and counsel shall be appointed whenever counsel is available at no fee or whenever the Court fund has sufficient unobligated funds to pay an attorney.

(b) An attorney, who shall be the child's previously appointed guardian ad litem whenever possible, shall be appointed to represent the child's best. interest in any hearing determining the involuntary termination of the parent-child legal relationship. Additionally, said attorney shall be experienced, whenever possible, in juvenile law. Such representation shall continue until an appropriate permanent placement of the child is effected or until the Court's jurisdiction is terminated. If a respondent parent is a minor, a guardian ad litem shall be appointed and shall serve in addition to any counsel requested by the parent.

Absentee Shawnee Juvenile Code § 246, AST JUVENILE Code § 246

 

 

 




AST JUVENILE Code § 247
§ 247. Notice of Hearing to Terminate Parental Rights

(a) A parent shall be given actual notice of any hearing to terminate such parent's parental rights. The notice shall indicate the relief requested, and the hearing shall not be held until at least ten (10) days after the receipt of notice, except with the consent of the parent, if known.

(b) If the Court finds that the whereabouts of the parent cannot be ascertained, it may order that notice be given by publication and a copy mailed to the last-known address of the parent. The notice shall be published once in a newspaper of general circulation in the jurisdiction and the hearings I not be held for at least ten (10) days after the date of publication of the notice, Except as otherwise provided by subsection (c), of this section, if a parent has not received actual notice of the hearing at which he is deprived of his, parental rights, the order depriving him of those rights shall not become final for a period of six (6) months after the hearing. Nothing in this section shall prevent the Court from immediately taking custody of a child and ordering whatever action may be necessary to protect his health or welfare.

(c) For the purpose of terminating the parental rights, a father or putative father of a child born out of wedlock who has not, prior to commencement of a proceeding to terminate parental rights to such child, exercised parental rights and duties shall not be deemed to have parental rights to such child. The father or putative father shall be entitled to notice and an opportunity to be heard pursuant to this section, except that the Court may:

(1) Waive notice to a putative father whose identity is unknown to the mother of the child born out of wedlock and the mother of the child signs a sworn statement before the Court that the identity of the father or putative father of the child is unknown and the Court is satisfied, after inquiry in to the matter, that his identity is unknown and with due diligence could not be determined; the willful and deliberate falsification of said sworn statement shall be perjury and shall, upon conviction, be punishable as otherwise provided by law.

(2) When the identity of the father or putative father of a child born out of wedlock is known but his whereabouts is unknown and the Court, after inquiry, is satisfied that after diligent search his whereabouts remains unknown, order that notice be given by publication as provided in subsection (b) of this section and a copy mailed to the last-known address, if known, of such father or putative father. When notice is given by publication the order terminating parental rights shall not become final for a period of fifteen (15) days from the date of the order.

Absentee Shawnee Juvenile Code § 247, AST JUVENILE Code § 247

 

 

 




AST JUVENILE Code § 248
§ 248. Termination of Parental Rights by Abandonment

Before a termination of the parent-child legal relation based on abandonment can be ordered, the petitioner shall file an affidavit stating what efforts have been made to locate the parent or parents of the child subject to the motion for termination. Such affidavit shall be filed not later than ten (10) days prior to the hearing.

Absentee Shawnee Juvenile Code § 248, AST JUVENILE Code § 248

 

 

 




AST JUVENILE Code § 249
§ 249. Criteria for Termination

(a) The Court may order a termination of the parent-child legal relationship upon the finding of any of the following:

(1) That the child has been abandoned by his parent or parents;

(2) That the child has been adjudicated as deprived and all of the following exist:

(i) That an appropriate treatment plan approved by the Court has not been reasonably complied with by the parent or parents or has been ignored;

(ii) That the parent is unfit;

(iii) That the conduct or condition of the parent or parents is not likely to change over time;

(iv) That it is in the child's best interest.

(3) A finding that a parent who does not have custody of the child has willfully failed to contribute to the support of the child as provided in a decree of divorce or in some other Court order during the preceding year or, in the absence of such order, consistent with the parent's means and earning capacity; or

(4) A conviction in a criminal action in any, jurisdiction as to physical or sexual abuse of a child or a finding in a deprived child action either of the following has occurred:

(i) The parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child form physical or sexual abuse that is heinous or shocking to the Court or that the child or sibling of such child has suffered severe harm or injury as a result of such physical or sexual abuse;

(ii) The parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or sibling of such child from physical or sexual abuse subsequent to a previous finding that such parent has physically or sexually abused the child or a sibling of such child or failed to protect the child or a sibling of such child from physical or sexual abuse;

(5) A conviction in a criminal action that the parent has caused the death of a sibling of the child as a result of physical or sexual abuse or chronic neglect of such sibling;

(b) In determining unfitness, conduct, or condition, Court shall find that continuation of the legal relationship between parent and child is likely to result in grave risk of death or serious injury to the child or that the conduct or condition of the parent or parents renders the parent or parents unable or unwilling to give the child reasonable parental care. In making such determinations, he Court shall consider, but not be limited to, the following:

(1) Emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely over time to care for the ongoing physical, mental, and emotional needs of the child;

(2) Conduct towards the child of a physically or sexually abusive nature;

(3) History of violent behavior;

(4) A single incident of life-threatening or gravely disabling injury or disfigurement of the child;

(5) Excessive use of intoxicating liquors or narcotic or dangerous drugs which affect the ability to care and provide for he child;

(6) Neglect of the child;

(7) Long-term confinement of the parent;

(8) Injury or death of a sibling due to proven abuse or neglect by parental figures;

(9) Reasonable efforts by child care agencies which have been unable to rehabilitate the parent or parents.

(c) In considering any of the factors in subsection (b) of this section in terminating the parent-child legal relationship, the Court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The Court shall review and order, if necessary, an evaluation of the child's physical, mental, and emotional conditions.

Absentee Shawnee Juvenile Code § 249, AST JUVENILE Code § 249

 

 

 




AST JUVENILE Code § 250
§ 250. Criteria for Order Terminating Parental Rights

The Court shall order termination of parental rights if it finds by clear and convincing evidence that termination of parental rights and a permanent placement with another person is in the best interest of the child

Absentee Shawnee Juvenile Code § 250, AST JUVENILE Code § 250

 

 

 




AST JUVENILE Code § 251
§ 251. Review of Child's Disposition Following Termination of the Parent-Child Legal Relationship

(a) The Court, at the conclusion of a hearing which h it ordered the termination of a parent-child legal relationship, shall order that a review hearing be held not later than ninety (90) days following the date of termination. At such hearing, the Indian Child Welfare Department, vested with custody of the child shall report to the Court what disposition of the child, if any, has occurred, and the guardian ad litem shall submit a written report with recommendations to the Court, based upon an independent investigation, for the best disposition of the child.

(b) If no adoption has taken place within reasonable time and the Court determines that adoption is not immediately feasible or appropriate, the Court may order that provision be made immediately for long-term alternative placement of the child.

Absentee Shawnee Juvenile Code § 251, AST JUVENILE Code § 251

 

 

 




AST JUVENILE Code § 252
§ 252. Expert Testimony

(a) Subject to the availability of funds, an indigent parent has the right to have appointed one expert witness of his own choosing whose reasonable fees and expenses, subject to the Court's prior review and approval, shall be paid from the court funds.

(b) All ordered evaluations shall be made available to counsel as expeditiously as possible prior to the hearing.

Absentee Shawnee Juvenile Code § 252, AST JUVENILE Code § 252

 

 

 




AST JUVENILE Code § 253
§ 253. Effect of Order

(a) An order for the termination of the parent-child legal relationship divests the child and the parent of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other, except for the right of the child to inherit from the parent.

(b) No order or decree entered pursuant to this Chapter shall disentitle a child to any benefit due him from any third person, including, but not limited to, any Indian Tribe, any agency, any state, or the United States.

(c) After the termination of a parent-child legal relationship, the former parent is not entitled to any notice of proceedings for the adoption of the child by another, nor has he any right to object to the adoption or to otherwise participate in such proceedings.

Absentee Shawnee Juvenile Code § 253, AST JUVENILE Code § 253

 

 

 




AST JUVENILE Code § 254
§ 254. Adoption Action Not to Be Combined with Termination of Parental Rights

(a) Except as otherwise provided for in subsection (I) of this section, an action to adopt a child shall not be combined with an action to terminate parental rights and when the rights of a parent have been terminated, neither an interlocutory nor a final decree of adoption may be rendered until the decree terminating parental rights has become final.

(b) This section shall not apply to:

(1) A proceeding to adopt a child without the consent of a parent when the Court has determined that consent is not legally required; or

(2) A proceeding to adopt a child born-out of wedlock when the mother of the child is granting consent to the adoption, is a party to the action and there has been no judicial or administrative determination of the paternity.

Absentee Shawnee Juvenile Code § 254, AST JUVENILE Code § 254

 

 

 




AST JUVENILE Code § 255
§ 255. Confidential Nature of Proceedings and Record

Unless the Court shall otherwise order, all hearings held in proceedings under this chapter shall be confidential and shall be held in closed court without admission of any person other than interested parties and witnesses. Further, all papers, records or files pertaining to proceedings under this chapter, kept by the Court or by the Indian Child Welfare Department shall be confidential and withheld from inspection except upon order of the Court for good cause shown. Upon application and for good cause being shown, the Court, by written order, reciting its findings, permit the necessary information to be released, or may restrict the purposes for which it shall be used. Any person in charge of such records or having access to such records or information who discloses any information, including, but not limited to, all records and reports relevant to the case and any records and reports, contrary to the provisions of this Chapter, may be charged criminally with a misdemeanor or be held civilly liable.

Absentee Shawnee Juvenile Code § 255, AST JUVENILE Code § 255

 

 

 



AST JUVENILE Code § 256
§ 256. Modification of Decrees or Orders

Any decree or order made pursuant to this Chapter may be modified by the Court at any time; provided, however, that an order terminating parental rights shall not be modified.

Absentee Shawnee Juvenile Code § 256, AST JUVENILE Code § 256

 

 

 




AST JUVENILE Code § 257
§ 257. Traditional Custodian's and Grandparent Rights

(a) No dispositional order or decree including termination of parental rights and adoption shall divest the child's traditional custodians or grandparent of their right to reasonable visitation with the child and their duty to provide instruction and training to the child regarding Tribal customs and traditions or their duty to provide the necessities of life for the child should the parents be unable to do so, unless those rights and duties have been extinguished in a proceeding in which the individual was a party, provided, that adoptive traditional custodians shall also succeed to these rights and duties.

(b) The rights and duties of the traditional custodians and grandparents may be enforced by court order whenever it appears in the child's best interest to do so, provided, that all parties to the case shall be given notice and an opportunity to be heard.

Absentee Shawnee Juvenile Code § 257, AST JUVENILE Code § 257

 

 

 




AST JUVENILE Code § 258
§ 258. Orders for Support

(a) Whenever a child is removed from the custody of its parent, guardian, or other custodian, the parent or other person shall be ordered by the Court to contribute a reasonable amount within their means, or to labor for the Tribe, or take other reasonable action to provide support for the child

(b) In cases of necessity, the Court may order a traditional custodian to assist in providing the necessities of life within that custodian's means after a hearing, whether the child has been placed in his own home or elsewhere.

(c) When Indian Child Welfare is paying for alternative/foster care for such child, the contribution of the parent shall be paid to the Court Clerk and dispensed by court order to that agency or the Tribe as may be necessary by law or appropriate in the circumstances.

Absentee Shawnee Juvenile Code § 258, AST JUVENILE Code § 258

 

 

 




AST JUVENILE Code § 259
§ 259. Voluntary Foster/Alternative Care-Authorized

In order to provide better treatment for a family's problems and to better protect children, the Department is authorized to accept a child for foster/alternative care when:

(a) The parent, guardian, or other physical or legal custodian has consented to such alternative care in writing before the Director of the Indian Child Welfare Department or her designee and that the terms and conditions, and consequences of such consent were fully explained in detail and fully understood in English, or that it was interpreted into an appropriate tribal language which was understood.

(b) A consent to alternative care placement may be withdrawn by the person giving same, the parent or other legal guardian having. legal custody, or a traditional custodian at any time and the child shall be returned to the authorized person requesting the child's release within forty-eight (48) hours.

(c) The Court may enter an order terminating the parent-child legal relationship of one or both parents when all reasonable efforts to treat the family have proven ineffective.

(d) Upon the entry of an order terminating the parent-child legal relationship of both parents, of the sole surviving parent, or of the mother of a child born out-of-wedlock, the Court may:

(1) Vest the Indian Child Welfare Department or a child placement agency with the legal custody and guardians of the person of a child for the purposes of placing the child for adoption according to the placement preferences in § 239 of this document; or

(2) Make any other disposition provided in subsection (a) of this section that the Court finds appropriate.

(e) Upon the entry of an order terminating the parent-child legal relationship of one parent, the Court may:

(1) Leave the child in the legal custody of the other parent and discharge the proceedings; or

(2) Make any other disposition provided in subsection (a) of this section that the Court finds appropriate.

(f) When a child has been adjudicated neglected because he has been abandoned by his parent or parents, the Court may enter a decree, terminating the parent-child legal relationship if it finds:

(1) That the parent or parents having legal custody have willfully surrendered physical custody for a period of twelve (12) months and during this period have not manifested to the child or the person having physical custody firm intention to resume physical custody or to make permanent legal arrangements for the care of the child; or

(2) That the identity of the parent or parents of the child is unknown and has been unknown for a period of ninety (90) days and that reasonable efforts to identify and locate the parents have failed.

(g) In placing the legal custody or guardianship of the person of a child with an individual or Indian Child Welfare for further placement, the Court shall give primary consideration to the welfare of the child, but shall take into consideration the religious preferences of the child or of his parents whenever practicable.

Absentee Shawnee Juvenile Code § 259, AST JUVENILE Code § 259

 

 

 




AST JUVENILE Code § 260
§ 260. Emancipation

A child sixteen (16) years or older, but less than eighteen (18) years of age may petition the Court to be considered an emancipated minor. Determination of whether such status shall be given to the minor is to be made by the Juvenile Court. The decision shall be. made by a clear and convincing standard. Evidence for the determination of emancipated status shall include, but is not limited to:

(a) the real or apparent assent of his/her parent(s);

(b) demonstration of his/her independence from s/her parents in matters of care, custody and earnings through employment or other means provides for his/her own food, shelter and other cost-of-living expenses;

(c) proof he/she has sole responsibility for his/her own support;

(d) proof he/she is married;

(e) proof he/she is in the military; or

(f) any other evidence the Court finds relevant to make an emancipation determination.

Absentee Shawnee Juvenile Code § 260, AST JUVENILE Code § 260


 

 

 

 

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