TITLE
VI - JUVENILES
CHAPTER 1. GENERAL PROVISIONS
[Digitizer's
note: Resolution No. 2002 - 47
refers to a repeal of Title VI (1), Juveniles (First Choice).]
Section
1. Jurisdiction:
The Coushatta
Tribal Juvenile Court shall have exclusive original jurisdiction over
all matters involving Indian children covered by this Title.
Section 2. Definitions:
(a) Child.
Any Indian under 18 years of age.
(b) Abused
child. A child who has suffered or is likely in the immediate
future to suffer serious physical or emotional harm as a result of
a parent or custodian inflicting or failing to make reasonable efforts
to prevent the infliction of physical or mental injury upon a child
including excessive corporal punishment or an act of sexual abuse
or molestation.
(c) Abandoned
child. A child whose parent or custodian is not identifiable or,
if known, has made no reasonable effort to care for, or arrange substitute
care for, the child for a period of six months or more.
(d) Neglected
child. A child:
(1)
Whose parent or custodian fails to provide the minimal care which
a reasonably prudent parent would provide in the circumstances for
the subsistence, education, and welfare of the child; or
(2)
Who has special physical or mental conditions for which the child's
parent or custodian neglects or refuses to provide a reasonable
level of special care; or
(3)
Whose parent or custodian is unable to discharge his or her responsibilities
to and for the child because of incarceration, hospitalization,
or other physical or mental incapacity.
A child
shall not be deemed neglected if the reason for failing to provide
adequate care for the child is the indigence of the parent or guardian.
Minimal care shall mean provision of adequate food, clothing, shelter,
medical care, and day to day supervision. In determining whether minimal
care has been provided, the Court shall apply the standards prevailing
in the community.
(e) Status
offender. A child.
(i)
Who is subject to compulsory school attendance and is habitually
truant from school without justification; or
(ii)
Who has committed an offense committable only by children;
(iii)
Who is habitually disobedient to the reasonable and lawful commands
of the parent or custodian; or
(iv)
Who habitually runs away from home; and
(v)
Who the Court determines is in need of rehabilitation.
(f) Delinquent
child. A child who commits an act which if committed by an adult
would be in violation of any provision of Title III of this Code (Criminal
Offenses.) Traffic offenses shall be deemed delinquent acts only if
committed by an individual under 15 years of age.
(g) Parent.
The biological parent of a child, or any person who has lawfully adopted
a child. Parent shall not mean the unwed father of a child where paternity
has not been established or acknowledged. Parent shall not mean any
person whose parent-child relationship has been lawfully terminated.
(h) Custodian. A person or agency, other than a parent, to
whom the legal custody of a child has been granted by the order of
a court of competent jurisdiction or who is acting in loco parentis.
(i) Detention. The temporary, secure custody of a child in
facilities designated by the court, pending a final disposition of
a petition, provided that detention shall not be in a facility where
the juvenile has sight or sound contact with incarcerated adult offenders.
(j) Shelter care. The temporary care of a child in a licensed
child care facility designated by the Court, pending final disposition
of a petition under Chapter 3 of this Title.
(k) Diversion. A course of remedial action taken in matters
arising under this title designed to avoid formal court action and
to serve the best interests of the child involved.
(l) Probable cause. Such facts and circumstances as would convince
a reasonable person.
CHAPTER 2. TAKING A CHILD INTO CUSTODY BEFORE A COURT HEARING
Section 1. Taking a Child Into Protective Custody:
(a) Any
law enforcement officer who has probable cause to believe a child
is a delinquent child and is likely to commit other delinquent acts
unless detained, may take the child into detention. The child may
be placed in an institution for delinquent children. Status offenders
shall not be taken into custody without a court order.
(b) Any
licensed physician, law enforcement officer, Tribal/BIA Social Services
Department or designated Tribal representative, who has probable cause
to believe a child is neglected or abused and will suffer physical
or emotional harm if not immediately removed from the home may place
the child in shelter care. Such child may be placed in a private home
or temporary foster home or institution, but not in a facility where
the child has sight or sound contact with alleged delinquents or incarcerated
adult offenders.
(c) In
no event shall a child be kept in custody without a court order for
more than seventy-two (72) hours.
Section 2. Application to Court:
Any law
enforcement officer, licensed physician, Tribal/BIA Social services
Department, or designated Tribal representative, who takes a child into
custody without a Court hearing shall (a) immediately notify the Court
and make a good faith effort to notify the parents of the child and
(1) within twenty-four (24) hours submit to the Court a petition under
Chapter 3, Section i of this Title. If the child is taken into custody
on a weekend or holiday, the individual taking the child into custody
shall have 24 hours from the start of the first subsequent work day
to file a petition in Court.
CHAPTER 3. COURT PROCEDURES
Section 1. Petitions:
Any person
may submit to the Court a petition to have any child subject to the
jurisdiction of the court declared abused, neglected, abandoned, delinquent
or a status offender. Such petition shall include (a) the name, address,
and telephone number of the applicant, the child and, if known, the
child's parent (s) or custodian; (b) the reason (s) why the applicant
believes the child is abused, neglected, abandoned, delinquent, or a
status offender; (c) supporting creditable evidence, including affidavits
or written statements from social workers, other child care professionals,
or members of the community. The petition shall indicate whether the
child is in protective custody.
Section 2. Release from Protective Custody; Social Study:
(a) Where
the child is in protective custody, the Court shall immediately direct
a Tribal/BIA Social services Department or designated Tribal Representative
to review the petition and perform a preliminary investigation. The
purpose of the investigation shall be to determine whether preventive
detention is still justified under the standards set forth in Chapter
2, Section 1. The juvenile officer shall make a recommendation to
the Court, which shall order the child released to the custody of
the parent or custodian or order continued protective custody pending
the initial hearing. The Court may also order continued protective
custody pending completion of the preliminary investigation.
(b) Social
Study. The appropriate Bureau of Indian Affairs or Tribal Social
Services personnel or designated Tribal Representative shall conduct
a social study with respect to each petition. Such study shall be
undertaken before the initial hearing if possible. The social study
shall if possible include interviews of the child, parent (s) or custodian
and investigation of the conditions in the home. The personnel authorized
to conduct a study shall submit the social study to the Court.
(c) In
the case of a child who is the subject of a petition based on abuse,
abandonment, or neglect, the Court shall order that a licensed physician
examine the child.
(d) Informal
resolution.
(1)
Abandoned, neglected or abused children and status offenders.
The personnel authorized may recommend counseling, treatment, or
such other disposition of an abandoned, neglected, or abused child
or status offender which in the officer's opinion is in the best
interest of the child. Such recommendations shall be implemented,
without Court action, only upon the consent of the parent (s) or
custodian with the knowledge that consent is voluntary. Upon receiving
consent, the personnel authorized shall inform the Court that the
case has been resolved informally. Informal resolution shall not
include any disposition which separates the child from the parent
or custodian. Upon successful completion of the recommended program,
the case shall be dismissed. No diversion program shall exceed six
months.
(2)
Delinquent children. In cases where the child has no previous
record of delinquency and the child is alleged to have committed
a misdemeanor, the personnel authorized may recommend a diversion
program, including counseling or treatment, in the best interest
of the child. The Court may in its discretion approve such recommendation
without a hearing. A child who successfully completes the diversion
program shall not be deemed a delinquent for any purpose. No diversion
program shall exceed six months.
Section 3. Initial Hearing:
(a) After
receiving a petition, the Court shall immediately schedule an initial
hearing, to be held immediately if possible and in all cases within
seventy-two (72) hours of the time a child is placed in protective
custody and within seven (7) days if the child is not in protective
custody. The Court shall make all reasonable attempts to notify, by
telephone or other means, the child and the child's parent (s) or
custodian of the time and place of the initial hearing and of the
right of the parent, custodian and the child (1) to obtain counsel
at their own expense, (2) to be present at the hearing, and (3) to
testify, present documentary evidence, call witnesses, and ask questions
of all witnesses.
(b) Prior
to the initial hearing, the court shall order that the child be interviewed
by a social worker, or other child care professional.
(c) The
initial hearing shall be conducted informally and shall be closed
to the public.
(d) If,
after the initial hearing, the Court determines that there is probable
cause to believe that the child has been abused, neglected, abandoned
or is a delinquent or status offender, the Court may temporarily order
such disposition as is appropriate under Chapter 3, Section 7 (d)
of this Title, pending a fact-finding hearing. Otherwise, the case
shall be dismissed.
(e) If,
after the initial hearing, the Court determines that there is probable
cause to believe that a child has been sexually abused, severely physically
abused, or severely neglected, and the Court determined that a criminal
investigation has commenced or will commence in the near future, the
Court shall place the child as provided under Chapter 3 Section 7
(d) of this Title. Such placement shall remain in force until the
fact-finding hearing, at which time placement shall be determined
according to Chapter 3, Section 7 (d) without regard to the provisions
of this subsection according to the best interests of the child.
Section 4. Guardians Ad Litem:
(a) Appointment
of guardians ad litem. The Court in its discretion may appoint
a guardian ad litem to represent a child in any proceedings under
Chapter 2 and 3 of this Title or any criminal proceedings under Title
III where the child may be a witness. The guardian ad litem
shall be at least twenty-one years of age, be of high moral character
and integrity, and shall not be a close relative of the child or have
any other special interest in the case that would prevent the guardian
from repressing the best interests of the child in an objective way.
The Court may appoint the guardian ad litem at the initial hearing,
Chapter 3, Section 3 of this Title, or at any other appropriate point
during the proceedings, including before a petition is filed.
(b) Duties
of the guardian ad litem. The guardian ad litem shall meet and
become acquainted with the child as soon as feasible after appointment.
The guardian shall, except where the best interest of the child indicates
otherwise, attend all court proceedings in the case, be present at
interviews between the child and law enforcement officials, social
workers, and other personnel who need to speak with the child in connection
with the case, visit the child in any foster home or other court-ordered
placement for the purpose of determining whether the placement is
in the best interests of the child, and determine the views of the
child with respect to placement and communicate those views to the
Court. The guardian ad litem shall perform such other duties as the
Court shall order the best interest of the child.
(c) Terms
and compensation. The guardian ad litem shall continue to serve
until discharged by the Court and shall be compensated as determined
by the Tribal Court.
(d) Notice
of court proceedings. The Court shall notify the guardian ad litem
of any court proceeding at which his or her attendance is required.
Notice shall be finished as provided in Chapter 3, Section 6 (b) of
this Title.
Section 5. Transfer of Juvenile Proceedings:
Upon motion
of petitioner or on its own motion, the Court may waive juvenile proceedings
so that the child may be tried as an adult in the Tribal court where
(a) the child is sixteen years of age or more; and (b) the child has
previously been found to be delinquent. In determining whether the child
should be tried as an adult the Court shall consider the seriousness
of the' child's prior delinquency record; the possibility of rehabilitation
of the child; and the effects of prior attempts to rehabilitate the
child. The Court shall provide the child and the child's authorized
representative with prior notice of a hearing on this issue, as provided
in Chapter 3, Section 6 and shall hold a hearing as provided in this
Section.
Section 6. Fact Finding Hearing:
(a) When
a fact-finding hearing shall be held. The fact-finding hearing
shall be held immediately following receipt of a social study or such
other evidence sufficient to enable the court to make its determination.
In all cases the final hearing shall be held within 30 days of the
filing of the petition, unless the child or the child's authorized
representative requests a postponement.
(b) Notice.
The Court shall serve prior written notice of the date, time, and
place of the hearing upon the child, any person authorized to represent
the child, and the parent or custodian. Notice shall be served in
person or by certified mail, return receipt requested. The notice
shall also specify that the child ( and any other party served with
notice ) has a right to retain counsel at his or her expense, be present,
testify, present documentary evidence, call witnesses; and ask questions
of all witnesses.
(c) Procedures.
The child may be physically present at the fact-finding hearing in
the Court's discretion, except that in delinquency cases, the child
must be present. Hearings shall be closed to the public. The
Court may require the testimony of a physician or child care expert
based on an examination of the child. The child or his authorized
representative, and the parent or custodian, may summon to produce
such witnesses and relevant evidence as they may desire, and may be
represented by counsel at their own expense. The Court may call such
witnesses as it deems necessary.
(d) Order.
If the Court shall find, after the fact-finding hearing, that (a)
there is clear and convincing evidence that the child is abused, neglected,
abandoned or a status offender, or (b) that there is evidence beyond
a reasonable doubt that the child is delinquent, the Court shall determine
the proper disposition of the child under Chapter 3, Section 7 of
this Title. Otherwise, the petition shall be dismissed.
Section 7. Disposition Hearings:
(a) When
a disposition hearing shall be held A disposition hearing shall
be conducted as soon as practicable after the conclusion of the fact-finding
hearing. Adequate time between the hearing, not to exceed 15 working
days shall be allowed to permit the Court to consider the disposition
alternatives that are in the best interest of the child.
(b) Rights
of the parties to the disposition hearings. All rights provided
at the fact- finding hearing shall be provided at the disposition
hearing. The child shall be physically present at the disposition
hearing if over ten (10) years of age unless the Court determines
that the child would likely suffer severe emotional harm as a result
of such presence. Otherwise, the presence of the child shall be in
the discretion of the Court. The Court in its discretion may confer
with the child with only the guardian ad litem present in order to
determine the child's desires concerning disposition.
(c) Evidence.
At the disposition hearing the Court shall hear evidence and the parties
shall have the right to introduce evidence on the matter of proper
disposition. The Court shall consider all relevant reports submitted
at the hearing in making a disposition including any reports prepared
by the child and his or her representative.
(d) Disposition.
(1)
Best interests of the child. The Court shall make such disposition
as is in the best interests of the child.
(2)
Abused, neglected, or abandoned children. If the Court has
found a child to have been abused, neglected, or abandoned, the
Court shall order one of the following dispositions, listed in order
of preference.
(i)
To the custody of the parent or custodian subject to such counseling,
treatment, or other services as are deemed necessary to keep the
child in the home;
(ii)
To the custody of a person related by blood, marriage to the child
on or off the Reservation;
(iii)
The custody of an approved Indian foster care home on the Reservation;
(iv)
To the custody of a an approved institution on the Reservation
provided that such institution cannot be used for delinquents
as well; or
(v)
To the custody of a non-Indian foster care home or institution
off the Reservation, provided that such home or institution shall
not be used for delinquent children as well.
In addition,
the Court may prescribe such counseling or treatment for the custodial
parents as it deems necessary.
(3)
Determining and changing placements. In determining which
of several relatives shall have placement of the child under subsection
(2), the court shall consider their ability to provide adequate
food, shelter, medical care, love and emotional support, and day-to-day
supervision. The Court shall also take into account the desires
of the child.
(4)
Delinquents or status offenders. If a child is found to be
a delinquent or a status offender, the Court shall order one of
the following dispositions, listed in suggested order of preference.
(i)
Probation with such conditions as the Court deems necessary;
(ii)
To the custody of an approved facility for delinquents or status
offenders on the Reservation; or
(iii)
To an approved facility for delinquents or status offenders off
the Reservation, provided under subsections (ii) and (iii) that
status offenders shall not have sight or sound contact with delinquents.
(iv)
Counseling to eliminate the removal of the juvenile/status offender
from the home
(5)
Term of commitment to facility. No order for commitment of
any delinquent or status offender in any approved facility shall
be for a term longer than six months or extend beyond the child's
eighteenth (18th) birthday. If; after at least five months of a
six-month term have elapsed, the child care professional in charge
of the delinquent or status offender believes that the child needs
further treatment and rehabilitation, he or she shall inform the
Court and a hearing shall be held. If the Court finds that further
treatment or rehabilitation is in the child's best interests, the
Court shall order a further commitment of up to six months.
(6)
Off-Reservation placement. Off-Reservation placement shall
be used only as a last resort, where no reasonable on-Reservation
placement is available. Whenever a child is placed temporarily off
the Reservation, the Court shall require the party receiving the
child to sign an agreement that the child will be returned to the
Reservation upon the written order of the Court.
Section 8. Confidentiality:
All hearings
held pursuant to this Title shall be (a) conducted in closed and private
chambers; (b) the names of all children involved shall not be published;
and (c) a record of all proceedings shall be made and preserved with
the Court. All Court records concerning children under this Title, including
social, medical and psychological reports, shall be kept confidential
and shall be open for inspection only upon Court order to the following
person or agencies: (1) the child; (2) the child's guardian ad litem
or other representative; (3) the child's parent (s) or custodian and
their representatives; (4) the authorized personnel; and (5) any other
person having a legitimate interest in the case and in the performance
of their duties, as determined by the Court.
Section 9. Expungement of Records:
Records
of children involved in proceedings under this Title shall be physically
sealed when the child reaches the age of 18 years. Upon reaching the
age of eighteen (18) years, any child involved in proceedings under
third Title may petition the Court to have such Court records destroyed.
In any case, the Court may order such record, except those dealing with
termination of parent-child relationship to be destroyed 10 years after
the child reaches the age of eighteen (18) years.
Section 10 Periodic Review for Delinquents and Status Offenders
in Approved Facilities:
Every ninety
(90) days the Court shall hold a hearing following the procedures under
Chapter 3 Section 7, to determine if the delinquent or status offender
should remain in the approved facility to which he or she has been committed.
If the Court finds that the child is not likely to commit additional
delinquent acts or status offenders if released, the court may release
the child, subject to such terms or probation as the Court deems necessary.
Section 11. Petition for Return of Abused, Neglected or Abandoned
Child Removed from Parent or Custodian:
(a) The
child, the child's guardian ad litem, parent or custodian may petition
the Court for return of an abused, neglected, or abandoned child to
the parent or custodian. Such a petition shall not be filed until
three months after the order of disposition and only at six-month
intervals thereafter. The petition shall be in writing, but need not
be in any particular form. Grounds for return include a showing that
the child would not be in danger of being abused, neglected or abandoned
upon return to the parent or guardian.
(b) Upon
receipt of a petition for return of a child, the Court shall order
the "authorized personnel" to undertake a social study. If after consideration
of the petition and social study, the court finds substantial evidence
that the child may safely be returned to the home of the parent or
guardian, the Court shall order and hold a hearing on the matter,
following the procedures set forth in Chapter 3, Section 7.
Section 12. Periodic Review for Abused, Neglected or Abandoned
Child Removed from Parent or Custodian:
Whether
or not a petition for return is filed, the Court shall every ninety
(90) days hold a hearing, following the procedures under Chapter 3,
Section 7 of this Title, to determine if the basis for the original
removal still exists. If the court finds that there is no longer clear
and convincing evidence that grounds for removal exist, the Court shall
order the return of the child to the parent or guardian.
CHAPTER 4 TERMINATION OF PARENT - CHILD RELATIONSHIP
The purpose
of this Chapter is to provide for termination of the parent-child relationship
by court order, to enable the child to be adopted by other adults. This
part shall only be used in conjunction with a pending adoption proceeding.
Section 2. Who May File a Petition:
(a) A
parent, with the exception of a minor parent, may voluntarily file
a petition for termination of the parent-child relationship.
(b) One
parent my file a petition for termination of the parent-child relationship
between the other parent and the child
(c) A
custodian, any other person having a legitimate interest in the child,
or the Tribe, may file a petition for the termination of the parent-child
relationship with respect to either or both parties.
Section 3. Contents of the Petition:
The petition
for termination of the parent-child relationship shall include:
(a) The
name and place of residence of the petitioner;
(b) The
name, sex, date and place of birth, and residence of the child;
(c) The
relationship of the petitioner to the child, if any;
(d) The
names, addresses, dates and place of birth of the parents, if known;
(e) Where
the child's parent is a minor, the name and address of the child's
grandparents, if known,
(f) The
name and address of the person having legal custody or guardianship
of the child, or acting in the place of the parent of the child.
(g) The
ground on which termination of the parent-child relationship is sought.
Section 4. Social Study Prior to Hearing:
When the
Court receives a petition under this Chapter it shall direct authorized
personnel to appropriate BIA or tribal social study service worker to
prepare a social study. Such report shall be submitted to the court
prior to the hearing.
Section 5. Notice:
(a) After
a petition has been filed and the social study has been submitted
to the Court, the court shall set the time and place for a hearing.
The Court shall give notice by summonsing the petitioner, the child,
the parents, custodian, and such other persons as the Court determines
are necessary for the proper adjudication of the matter. Notice shall
provide the date, time and place of the hearing. Notice to the child
and parent (s) shall specify that each shall have the right to (1)
retain counsel at his or her own expense; (2) be present; and (3)
testify, present documentary evidence, call witnesses, and ask questions
of all witnesses. When possible, notice shall be served as provided
under Title IX, Section 2.
(b) Where
service cannot be accomplished otherwise, service may be accomplished
by publishing the summons, or an order or the Court directing the
person to appear by a certain date in either three consecutive editions
of a tribal or Reservation newspaper of general circulation or at
least once each week for three consecutive weeks in a newspaper of
general circulation published of the Reservation in the parish in
which such person was last known to reside.
(c) Proof
of service of the summons and petition, or of notice by publication
must be filed with the Court. Where notice is by publication, such
proof shall be made by filing an affidavit of the publisher or printer
of the newspaper, or the publisher or printer's foreman, clerk, or
bookkeeper, to which is annexed a copy of the summons or order of
the Court. The affidavit shall specify the name of the newspaper in
which publication was made and the dates upon which publication was
made. In addition, a certificate by the Clerk specifying that a copy
of the summons and petition was mailed to the person's last known
address not later than ten days after the date of the first publication
shall be filed.
(d) In
the case of a voluntary petition by a parent to terminate his or her
parental rights, the parent may waive, in writing, notice and appearance
in court, provided the court is assured that the parent understands
the meaning and the consequences of the termination action. Where
the parent is a minor, waiver shall not be effective.
Section 6. Hearing:
The child
may be physically present at the hearing, in the Court's discretion.
The hearing shall be closed to the public. The Court may require the
testimony of a physician or child care expert based on examination of
the child. The child, the child's authorized representative, and the
parent may summon or produce such witnesses or evidence as they may
desire. The Court may call such witnesses as it deems necessary.
Section 7. Order:
If the
Court shall find after hearing that there is clear and convincing evidence
(a) that the child has continuously or repeatedly been abused, neglected,
or abandoned for a period of one year or more, and (b) the services
available cannot adequately reduce the likelihood of further abuse,
neglect, or abandonment or there is no other way to protect the child
from the risk of serious physical injury, or (c) the parent whose rights
are to be terminated consents to the termination and has not withdrawn
that consent for over one year, the Court shall order a termination
of parental rights.
Section 8. Disposition:
A child
whose parent-child relationship has been terminated under this Title
shall be placed with an adoptive parent under Chapter 3, Section
3 of this Title.
Section 9. Effects of Termination Order:
All rights,
duties, and obligations between the parents and the child, including
the rights of inheritance, are terminated by a termination order. A
termination order shall have no effect upon the child's tribal membership
or quantum in Indian blood.
CHAPTER 5. OBLIGATION TO REPORT CHILD ABUSE, NEGLECT, AND ABANDONMENT.
Any physician,
registered nurse, licensed practical nurse, community health representative,
mental health professional, other health professional, staff of a residential
care facility or group home, school principal, teacher or teacher's
aide, social worker, foster care worker, law enforcement officer, or
juvenile officer having recently been abused, neglected, or abandoned
as defined in Chapter 1, Section 2 of this Title, shall
immediately report such abuse to a tribal official designated by the
Juvenile Court and approved by the Tribal Council. Reports from persons
not obligated to report are encouraged.
Section 2. Contents of Report:
The report
may be made orally or in writing and shall contain as much of the following
information as is known to the person making the report: the name, address,
and age of the child, the name and address of the alleged perpetrator
or the abuser, the nature and extent of the abuse, and any other pertinent
information.
Section
3. Immunity for good faith reports: penalties for reports made in bad
faith
Any person
who in good faith makes a report pursuant to this Chapter or who testifies
in any judicial proceeding arising from such report shall be immune
from any civil or criminal liability because of such report or testimony.
Any person who makes a report pursuant to this Chapter in bad faith
for the purpose of harassing those identified in the report, without
reasonable cause to believe the report is true, is guilty of Class B
misdemeanor.
Section 4. Failure to report.
Any person
failing to make a report required by this Chapter shall be guilty of
a Class A misdemeanor, except that no imprisonment shall be imposed
by the Court.
Section 5. Investigation of reports.
The official
to whom the report is made shall inform the tribal prosecutor. The prosecutor
shall assign the case for investigation to an "authorized personnel",
a BIA or Tribal social worker, a court investigator, and/or a police
officer, as appropriate. If the investigation reveals probable cause
that abuse, neglect, or abandonment has occurred, the procedures outlined
in Chapters 2 and 3 of this Title shall be initiated.
Section 6. Record keeping.
The designated
tribal official shall keep a separate file for each report of abuse
received under this Chapter. The file shall include a complete record
of the complaint itself, the results of all investigations, a summary
of any court proceedings and any other pertinent information.
Section 7. Confidentiality.
The records
described in Chapter 5, Section 6 shall be confidential, except that
the Tribal Court shall have access to the case file as needed for criminal
proceedings against the offender or for proceedings under Chapters 2,
3, and 4 of this Title.
CHAPTER 6. PROCEDURES OF THE COUSHATTA TRIBE WITH RESPECT TO THE
INDIAN CHILD WELFARE ACT
Section 1. Intent of this Chapter.
The intent
of this Chapter is to provide speedy and effective procedures for responding
to notices and case referrals of child custody proceedings from state
and tribal courts and agencies. It is in the policy of the Coushatta
Tribe to accept transfer of cases and to intervene in cases where such
transfer or intervention is in the best interests of the child.
Section 2. Definitions:
For purposes
of this chapter, the terms "child custody proceeding", "Indian Child",
and "Indian Custodian" shall have the definitions set forth in 25 U.S.C.
1902 (1) (4), and (6).
Section 3. Receipt of Referrals:
The Tribal
Secretary shall be the tribal official designated to receive notice
from State and Tribal Courts and agencies of pending child custody proceedings
involving an Indian Child. The Tribe shall make its best efforts to
notify State Courts and agencies in the local area that the Tribal Secretary
has been so designated. If another tribal official receives a notice
from a State or Tribe concerning a pending child custody matter, that
official shall immediately give the notice to the Tribal Secretary.
The Tribal Secretary shall keep a log by date and case name of all notices
received. The Secretary shall then give a copy of the notice to the
Clerk of Court.
Section 4. Duties of the Clerk of Court:
The Clerk
of the Court, upon receiving notice as required under Chapter 6, Section
3 of this Title, shall make a record containing all essential information
concerning the case, including:
a) The
source of the notice;
b) The
names and addresses of the child, parents, and Indian Custodian, if
different from the parents;
c) The
date of the referral;
d) Any
deadline for responding to the notice;
e) The
type of proceeding in the referring Court or agency;
f) Whether
the State or Tribe is requesting that the Coushatta Tribe accept jurisdiction
over the matter.
Section 5. Investigation of Referral by Chief Judge of Designee:
Following
proper docketing of the referral as described in Chapter 6, Section
4 above, the Chief Judge or his designees shall initiate an investigation
of the case. The purpose of the investigation is to determine whether
the Tribe has jurisdiction and, if it does, whether the Tribe should
seek transfer of the case or intervene in the case in the foreign Court
or agency. The Chief Judge's designees can include appropriate tribal
social services personnel.
Section 6. Determination of Tribal Membership Status Domicile
and Residency and Status as Ward of the Tribal Court
a) The
first objectives of the investigation shall be to determine whether
the child involved is a member of the Coushatta Tribe or eligible
for membership, whether the child has domicile or residence on the
Reservation, and whether the child is a ward of the Tribal Court.
The child shall be considered a ward of the Tribal Court if the child
was removed from the custody of his/her parent or Indian custodian
under Chapters 2 or 3, Title VI of this Code.
b) If
the child is
(i)
A member of the Tribe or eligible for membership;
(ii)
Has a residence or domicile on the Reservation or is a ward of the
Tribal Court, the child custody proceeding is in the Tribe's exclusive
jurisdiction and the Chief Judge shall immediately forward the case
to the Tribal Council. The Council, if it agrees that the Tribe
has exclusive jurisdiction, shall direct the Chief Judge for further
investigation;
c) If
the child is a member of the Tribe or eligible for membership, but
neither has residence or domicile on the Reservation nor is a ward
of the Tribal Court, the Tribe has concurrent jurisdiction over the
case and can either request transfer of the case, intervene in the
proceeding in the foreign Court or agency, or take no formal action
d) If
the child is not a member of the Tribe or eligible for membership,
then the Indian Child Welfare Act does not guarantee the right to
have the case transferred or the right to intervene. Nonetheless,
the Tribe can seek transfer of the case or to intervene in a case
where it deems that such action would be in the best interests of
the child as determined under the standards set forth in Chapter 6,
Section 7, below.
Section 7. Best Interests of the Child:
The next
objective of the investigation shall be to determine facts that will
assist the Chief Judge and the Council in determining the course of
action that is in the best interests of the child, taking into account
that continuing contact with the child's extended Indian family and
Indian heritage is a strong component of that interest. The Judge and
the Council shall take into account the wishes of the child's family
and the wishes of the child, where the child is of sufficient age, but
these wishes need not be given controlling weight. Where possible, the
investigation should include review of the case file and interviews
with the parent(s) or Indian Custodian, the child, the State or Tribal
Social Worker or other individual familiar with the case, and the foster
parents, if any.
Section 8. Recommendation of the Chief Judge:
After the
investigation is complete, the Chief Judge shall recommend to the Tribal
Council that the Tribe either request transfer of the case, seek to
intervene in the case, or take no formal action. The Chief Judge shall
make his or her best effort to forward the recommendation to the Council
within ten (10) working days of the Tribe's receipt of the referral.
The Chief Judge shall be responsible for requesting that the proceedings
in the foreign Court or agency be stayed so that the Tribe can complete
its investigation.
Section 9. Final Decision by Tribal Court:
After receipt
and review of the recommendations from the Chief Judge, the Tribal Council
shall make a final decision on the action to be taken. Where the Council
has decided to request transfer of jurisdiction or to intervene, the
Chief Judge shall immediately file or cause to be filed an appropriate
petition in the Foreign Court or agency.
Section 10. Notification of Parents and Indian Custodian:
The Tribal
Council shall notify the Indian child's parents, and the Indian custodian
where different from the parents, of any decision to request transfer
of jurisdiction or intervene. Notice shall be by certified mail, return
receipt requested.
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