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Hoopa Valley Tribal Code
Last amended: 2005
Title
14 - Child Welfare Code
(amended
September 18, 1997)
Chapter
1 - General Provisions
Chapter 2 - [Temporary Coustody, Detention and Shelter]
Chapter 3 - Petition, Adjudication, and Disposition
Chapter 4 - Child Abuse
Chapter 5 - Termination of Parent/ Child Legal Relationship
Chapter 6 - Adoption
Chapter 7 - Foster Home Standards
Chapter 8 - [Personal Rights of Children in Foster Care]
Chapter
9 - [Agreement With Foster Parents]
Chapter
10 - [Permanency Planning for Indian Children in Foster Care]
TITLE 14 - ORDINANCE OF THE HOOPA VALLEY TRIBE HOOPA INDIAN RESERVATION
HOOPA, CALIFORNIA
ORDINANCE NO: 2-90
DATE
APPROVED: Amended September 18, 1997
SUBJECT:
TO ESTABLISH RULES, PROCEDURES AND CRITERIA FOR GOVERNING ADOPTION AND
FOSTER HOME PLACEMENTS AND OTHER ACTIVITIES INVOLVING INDIAN CHILDREN
UNDER THE AUTHORITY OF THE INDIAN CHILD WELFARE ACT.
WHEREAS:
The Hoopa Valley Tribe did on June 20, 1972, adopt a Constitution
and Bylaws which was approved by the Commissioner of Indian Affairs
on August 18, 1972, and Article IX, Section 1 (1) of this Constitution
and Bylaws authorized the Hoopa Valley Business Council, " To safeguard
and promote the peace, safety, morals, and general welfare of the Hoopa
Valley Indians....", and
WHEREAS:
The Hoopa Valley Tribe has by referendum vote in June 1985 established
as a Tribal priority the enactment of a children's code to assure the
protection of Indian children and their cultural heritage under the
authority of Tribal and Federal Law pursuant to the Indian Child Welfare
Act, and
NOW
THEREFORE BE IT RESOLVED: That the Hoopa Valley Tribal Council,
under its authority under the Constitution of the Hoopa Valley Tribe
and under as authorized by referendum vote of the Hoopa membership,
does hereby enact this Child Welfare Code of the Hoopa Valley Tribe
As Title 14 of the Law and Order Code of the Hoopa Valley Tribe and
that this Code shall be in full force and effect.
CHAPTER 1: GENERAL PROVISIONS
14.0
SHORT TITLE
The short
title of this Act shall be the Child Welfare Code of the Hoopa Valley
Tribe.
14.1.1
AUTHORITY
The membership
of the Hoopa Valley Tribe did in June 1983 approve by referendum election
the Hoopa Valley Business Council to enact a Child Welfare Code for
reassumption of child welfare matters under the authority established
in the Indian Child Welfare Act.
14.1.2.
ESTABLISHMENT OF TRIBAL CHILDREN'S COURT
There
is hereby established a Children's Component of the Hoopa Tribal Court
with the authority to enforce this Code. Except as provided herein,
the procedures of the Tribal Children's Court shall be the same those
used by the Tribal Court.
14.1.3.
APPOINTMENT OF CHILDREN'S COURT JUDGE
The Chief
Judge of the Hoopa Tribal Court shall appoint from within the composition
of Tribal Court Judges a judge whose primary function shall be to
hear court actions brought under the authority of this Code.
14.1.4.
PURPOSE
The purposes
of this Code are defined as follows:
14.1.4.1
To secure for each child subject to these provisions such care and
guidance, preferably in his/ her own home, as will best serve his/
her won home, as will best serve his/ her welfare and the interests
of the Hoopa Valley Tribe and society in general;
14.1.4.2
To preserve and strengthen family ties whenever possible, including
improvement of the home environment;
14.1.4.3
To protect and preserve the Tribal heritage and cultural identity
of the child;
14.1.4.4
To remove a child from the custody of his/ her parents ONLY
when his/ her welfare and safety or the protection of the public
would otherwise be endangered; and
14.1.4.5
To secure for any child removed from the custody of his parents
the necessary care, guidance, and discipline to assist him/ her
in becoming responsible and productive manner of his tribe and society
in general.
14.1.5.0
DEFINITIONS
As used
in this title, unless the context otherwise requires:
14.1.5.1
"ADJUDICATORY HEARING" means a hearing to determine
whether the allegations of a petition are supported by evidence
beyond a reasonable doubt or the allegations of a petition are supported
by a preponderance of the evidence.
14.1.5.2
"ADULT" means a person eighteen years of age or over;
except that any minor eighteen years of age or over under the continuing
jurisdiction of the court, or who is before the court for an alleged
delinquent act committed prior to his eighteenth birthday, or concerning
whom a petition has been filed for his adoption other than under
this Title, shall be referred to as a child.
14.1.5.3
"CHILD-INDIAN" or "INDIAN CHILD"
means a an unmarried person who is an enrolled member of a federally
recognized Tribe who is under eighteen years of age; an unmarried
person who is eligible for membership in the Hoopa Valley Tribe
and is under eighteen years of age; or an unmarried person who is
an immediate descendant of an enrolled member of the Hoopa Valley
Tribe and is under eighteen years of age. Whenever necessary, the
singular form shall be interpreted as the plural, i. e., child interpreted
as children.
14.1.5.4
"CHILD-MEMBER" means, for the purposes of this Code,
a child under eighteen years of age who is an enrolled member or
who is eligible for membership in the Hoopa Valley Tribe.
14.1.5.5
"CHILD CARE CENTER" means a facility licensed and
approved pursuant to law. If such facility is located outside the
tribal jurisdiction, it shall be licensed or approved as required
by law in that jurisdiction.
14.1.5.6
"CHILD IN NEED OF SUPERVISION" means any child:
(a)
who has repeatedly disobeyed reasonable and lawful commands or
directives of his parents, or legal guardian, or other custodian:
or
(b)
who is willfully and voluntarily absent from his home without
the consent of his parent or guardian or legal custodian for a
substantial length of time or without intent to return: or
(c)
who being subject to compulsory school attendance, the child is
willfully and voluntarily absent from school in violation of law.
14.1.5.7
"CHILD PROTECTION AGENCY" means an agency licensed
or approved pursuant to law. If such agency is located outside the
tribal jurisdiction, it shall be licensed or approved as required
by law in that jurisdiction.
14.1.5.8
"COMMIT" means to transfer legal custody.
14.1.5.9
"DELINQUENT CHILD" means:
(a)
a child who has violated any federal, state, or tribal law or
any lawful order of the court made under this act; to
(b)
a child who has violated traffic laws or traffic ordinances.
14.1.5.10
"DEPRIVATION OF CUSTODY" means transfer of legal custody
by the court from a parent or a previous legal custodian to another
person, agency, or institution.
14.1.5.11
"DETENTION" means the temporary care of a child who
requires secure custody in physically restricting facilities pending
court disposition or an execution of a court order for placement
or commitment.
14.1.5.12
"DISPOSITIONAL HEARING" Means a hearing to determine
what order of disposition should be made concerning a child adjudicated
as a delinquent, in need of supervision, or neglected or dependent.
Such hearing may be part of the proceeding which includes the adjudicatory
hearing or it may be held at a time subsequent to the adjudicatory
hearing.
14.1.5.13
"EXTENDED FAMILY--RELATIVE" means a member of the
family related by blood who is an enrolled member of the tribe.
14.1.5.14
"FAMILY CARE HOME" means a facility licensed and approved
pursuant to law. If such facility is located outside the tribe's
jurisdiction it shall be licensed or approved as required by the
jurisdiction in which the facility is located.
14.1.5.15
"GROUP CARE FACILITIES AND HOMES" means places other
than foster family care homes providing care for small groups of
children.
14.1.5.16
"GUARDIANSHIP OF THE PERSON" means the duty and authority
vested by court action to make major decisions affecting a child
including, but not limited to:
(a)
the authority to consent to marriage, to enlistment in the arm
forces, and to medical and surgical treatment;
(b)
the authority to represent a child in legal actions and to make
other decisions of substantial legal significance concerning the
child.
(c)
the authority to consent to the adoption of a child when the parent/
child relationship has been terminated by judicial decree; and,
(d)
the rights and responsibilities of legal custody when legal custody
has not been vested in another person, agency, or institution.
14.1.5.17
"INDIAN CUSTODIAN" means an Indian person in whose
care a child is entrusted by informal agreement between that person
and the child's parent.
14.1.5.18
"CHILDREN'S COURT OR COURT" means the Children's Court
of the Hoopa Valley Tribe established herein to handle child matters.
14.1.5.19
"LEGAL CUSTODY" means the right to the care, custody,
and control of a child and the duty to provide food, clothing, shelter,
ordinary medical care, education, and discipline for a child and,
in an emergency, to authorize surgery or other extraordinary care.
Legal custody may be taken from a parent only by court action.
14.1.5.20
"NEGLECT OR DEPENDENT CHILD" OR " DEPENDENT AND NEGLECTED
CHILD " MEANS A CHILD:
(a)
whose parent, guardian, legal custodian, or Indian custodian has
abandoned him or has subjected him to mistreatment or abuse or
whose parent, guardian or legal custodian has suffered or allowed
another to mistreat or abuse the child without taking lawful means
to stop such mistreatment or abuse, including physical abuse and
sexual exploitation, and prevent it from recurring.
(b)
who lacks proper parental care through the actions or omissions
of the parent, guardian, legal custodian, or Indian custodian.
(c)
whose environment is injurious to his welfare;
(d)
whose parent, guardian, legal custodian, or Indian custodian fails
or refuses to provide proper or necessary subsistence, education,
medical care, or any other necessary care for his health, guidance,
or well-being;
(e)
who is homeless, without proper care, or not domiciled with his
parent, guardian, legal custodian, or Indian custodian;
14.1.5.21
"PARENT" means either a natural parent of a child
or a parent by adoption;
14.1.5.22
"PROTECTIVE SUPERVISION" means a legal status created
by court order under which the child is permitted to remain in his
home or is placed with a relative or other suitable person, and
supervision and assistance is provided by the court, the Tribal
Social Service Department, or other agency designated by the court.
14.1.5.23
"RESIDUAL PARENTAL RIGHTS AND RESPONSIBILITIES" means
those rights and responsibilities remaining with a parent after
legal custody, guardianship of the person, or both have been not
necessarily limited to, the responsibility for support, the right
to consent to adoption, the right to reasonable visitation unless
restricted by the court, and the right to determine the child's
religious affiliation.
14.1.5.24
"SHELTER" means the temporary care of a child in physically
unrestricting facilities pending court disposition or execution
of a court order for placement.
14.1.5.25
"TERMINATION OF PARENT/ CHILD LEGAL RELATIONSHIP"
means the permanent elimination by court order of all parental rights
and duties, including any residual parental rights and responsibilities.
14.1.5.26
"TRANSFER PROCEEDINGS " means any proceeding in the
tribal court to accept or decline transfer from any state court
or other tribal court of any court proceeding for the foster care
placement of or termination of parental rights to any Indian child.
14.1.5.27
"TRIBAL PRESENTING OFFICER" means a representative
of the Tribe who is officially designated to present issues on behalf
of the Tribe arising under this code.
14.1.6
JURISDICTION
14.1.6.1
The Children's Court shall have exclusive jurisdiction, with respect
to the matters addressed in this Children's code, over all Indian
children resident or domiciled within the exterior boundaries of
the Hoopa Valley Indian Reservation or who are wards of the Court.
The Court may, or if compelling reason is demonstrated, decline
transfers of jurisdiction from any other court pursuant to Title
I, Section 101 (b) of Pub. Law 95-608, the Indian Child Welfare
Act, 25 U. S. C. sec. 1911 (b), over any case involving a Hoopa
Indian child. The Court may also offer to transfer jurisdiction
of a case to any other court if it appears that another court is
a proper forum.
14.1.6.2.
Except as otherwise provided by law, the Children's Court shall
have exclusive jurisdiction in proceedings under the authority of
this title:
(a)
Concerning any child in need of supervision;
(b)
Concerning any child who is neglected or dependent;
(c)
Concerning any transfer proceeding;
(d)
To determine the legal custody of any child or to appoint a guardian
of the person or legal custodian of any child who comes within
the children's court jurisdiction.
(e)
For the issuance of orders of support of minor children.
(f)
To determine the parentage of a child and to make order of support
in connection therewith.
(g)
For the adoption of a child and to make an order of support in
connection therewith.
(h)
For the treatment or commitment of a mentally ill or developmentally
disabled child who comes within the Court's jurisdiction.
14.1.6.3
Except as other wise provided by law, the Children's Court shall
have jurisdiction in proceedings concerning any adult:
(a)
Who induces, aids, or encourages a child to violate any federal,
tribal, or state law.
(b)
Who abuses, ill-treats, neglects, or abandons a child who comes
within the court's jurisdiction.
(c)
Who violates any duly served order of the court.
14.1.6.4
The court may issue temporary orders providing for protection, support,
or medical or surgical treatment as it deems in the best interest
of any child concerning whom a petition has been filed prior to
adjudication or disposition of his/ her case.
14.1.6.5
Nothing in this section shall deprive the tribal court of jurisdiction
to appoint a guardian for a child nor of jurisdiction to determine
the legal custody of a child when the question of legal custody
is incidental to the determination of a cause in the tribal court,
except that;
(a)
If a petition involving the same child is pending in juvenile
court or if continuous jurisdiction has been previously acquired
by the juvenile court, the tribal court shall certify the question
of legal custody to the juvenile court; and
(b)
The tribal court at any time may request the children's court
to make recommendations pertaining to the guardianship or legal
custody.
14.1.6.6
Where a custody award has been made in the tribal court in a dissolution
of marriage action or another proceeding and the jurisdiction of
the tribal court in the case is continuing, the same child if he
is dependent or neglected or otherwise comes within the jurisdiction
set forth herein.
14.1.6.7
The Tribal Council may enter into cooperative enforcement and service
agreements with government agencies, other Indian tribes, organizations
and individuals for the proper enforcement of this Code.
14.1.6.8
The Tribal Social Services Department may develop, subject to Council
approval, rules, regulations and procedures for determining the
selection of cases to be handled and other matters arising under
this Code.
14.1.6.9
For determining who is an Indian for purposes of this Code, the
Tribal Enrollment Committee shall have such authority for children
of enrolled members. The Bureau of Indian Affairs or the Indian
tribe of either or both parents shall determine who is an Indian
for non-member children.
14.1.7
INDIAN CHILD WELFARE ACT TRANSFERS
14.1.7.1
INDIAN CHILD WELFARE TRANSFERS FROM STATE COURTS
(a)
Pursuant to the Indian Child Welfare Act, any local or state court
may transfer to the Children's Court herein any proceeding for
the foster care placement of, or termination of parental rights
to, member or Indian child within the jurisdiction of the court,
if the Children's Court finds that the transfer would not be detrimental
to the best interests of the child.
(b)
The Children's Court shall determine whether the transfer to the
Tribe's jurisdiction would be detrimental to the best interest
of the child in a transfer proceeding initiated by the Tribe after
the order of transfer is received by the court clerk.
(c)
A court transferring a case to the Tribe's jurisdiction under
subsection (a) of this section shall transmit all documents and
legal and social records, or certified copies thereof, to the
receiving court, which court shall proceed with the case as if
the petition has been originally filed or the adjudication had
been originally made in this Court.
14.1.7.2
INDIAN CHILD WELFARE ACT TRANSFER FROM OTHER TRIBAL COURTS
(a)
When requested by another tribal court, by specific agreement,
to have Hoopa jurisdiction apply, any proceeding over which this
Court has jurisdiction pursuant to this Title, may be transferred
to the Hoopa Tribal Children's Court.
(b)
If the Court finds that tribal jurisdiction shall apply, transfer
proceedings will be made pursuant to subsection 1 of this section.
14.1.7.3
INDIAN CHILD WELFARE ACT TRANSFERS FROM HOOPA TRIBAL CHILDREN'S
COURT
(a)
The Hoopa Tribal Children's Court may transfer to the juvenile
court of another tribe any proceeding over which this court has
jurisdiction pursuant to this chapter, and if the children's court
finds that the transfer would not be detrimental to the best interest
of the child.
(b)
If transfer to the other tribe is in the best interest of the
child, the Children's Court shall transmit all documents, legal
and social records or certified copies thereof, to the receiving
court.
14.1.8
LEGAL REPRESENTATION
14.1.8.1
RIGHT TO COUNSEL -OTHER THAN HOOPA TRIBE
(a)
At his first appearance before the Court, the child and his parents,
guardian, or other legal custodian shall be fully advised by the
Court of their legal rights, including the right to be represented
by counsel, at his own expense, at every stage of the proceedings.
(b)
If the child or his parents, guardian, or other legal custodian
requests an attorney and is found to be without sufficient financial
means, counsel, to the extent such are available at no fee, shall
be appointed by the court in proceedings Child in Need of Supervision
or under Child who is neglected and/ or dependent, when termination
of the parent/ child legal relationship is stated as a possible
remedy in the summons.
(c)
The Court may appoint counsel without request if it deems representation
by counsel necessary to protect the interest of the child or of
other parties.
14.1.8.2.
REPRESENTATION OF THE HOOPA TRIBE
(a)
Tribal Social Services Department is authorized to act as the
Presiding Officers and to represent the position of the Tribe
in Tribal Court Proceedings arising under this Code, and in proceedings
in state courts that are subject to transfer of jurisdiction to
the Tribal Court under the Indian Child Welfare Act or in which
the Tribe has a right to intervene as a party.
(b)
The Tribal Social Services staff shall develop and maintain a
file on any proceedings in which tribal participation is contemplated,
as set forth in section (a) above. Such file shall include all
papers filed in the proceedings, and social worker or related
assessments, whether or not filed in court.
(c)
The Social Service Department staff may consult with the Legal
Department in fulfilling their responsibilities under this Section.
If the Department staff desire Legal Department representation
in the proceeding, the case file shall be forwarded to the Legal
Department at the time the request is made for such representation.
(d)
The legal Department shall provide a written recommendation to
the Social Department and to the Tribal Chairman regarding the
need for Legal Department representation in any judicial proceeding.
Legal Department representation may take into the workload on
other priority matters, and the significance or difficulty of
the legal issues presented in the proceeding. The Tribal Chairman
is authorized to approve the Legal Department's participation
in the proceeding, or the chairman may in his discretion seek
the advise of the Council.
(e)
In any proceeding in which the Tribe is represented by the Legal
Department, the Social Service Department shall continue to be
responsible for maintaining and updating the case file, including
supplemental or other investigative work as requested by the Legal
Department.
14.1.9
HEARINGS, PROCEDURES, RECORDS & PUBLICITY
14.1.9.1
The rules and procedure set forth in this Title shall apply in all
proceedings under this section.
14.1.9.2
Hearings shall be held before the court without a jury in closed
session and may be conducted in a informal manner, except in termination
and foster proceedings. The Court shall admit only such persons
as it deems proper, including persons whom the parents or guardians
wish to be present. Hearings may be continued from time to time
as ordered by the Court.
14.1.9.3
A verbatim record shall be taken of all proceedings which might
result in the deprivation of custody. A verbatim record shall be
made in all other hearings, including any hearing conducted by a
mediator, unless waived by the parties in the proceedings and so
ordered by the judge or mediator.
14.1.9.4
When more than one child is named in a petition alleging need of
supervision, or neglect or dependency, the hearings may be consolidated;
except that separate hearings may be held with respect to disposition.
14.1.9.5
Children's cases shall be heard separately from adult cases, and
the child or his parents, guardian, or other custodian may be heard
separately when deemed necessary by the court.
14.1.9.6
The name, picture, place of residence, or identity of any child,
parent, guardian, other custodian, or person appearing as a witness
in proceedings shall not be published in any newspaper or in any
other publication nor given any other publicity unless for good
cause it is specifically permitted by order of the Court. Any person
who violates the provisions of this subsection is guilty of a misdemeanor
and, upon conviction thereof, shall be punishable by a fine of not
more than five hundred dollars (500).
14.1.10
SOCIAL STUDY AND OTHER REPORTS
14.1.10.1
Unless waived by the Court, the Tribal Social Services Department
or other agency designated by the court shall make a social study
and report in writing in all Children's cases, except:
(a)
If the allegations of a petition filed are denied, the study shall
not be made until the court has entered an order of adjudication
as provided herein; and
(b)
The study and investigation in all adoptions shall be made as
provided herein.
14.1.10.2
For the purpose of determining proper disposition of a child, written
reports and other material relation to the child's mental, physical,
and social history may be received and considered by the Court along
with along with other evidence; but the court, if so requested by
the child, his parent or guardian, or other interested party shall
require that the person who wrote the subject to both direct and
cross-examination. In the absence of such request, the Court may
order the person who prepared the report or other material to appear
if it finds that the interest of the child, his parent or guardian
or other party to the proceedings so requires.
14.1.10.3
The Court shall inform the child, his parent or legal guardian,
or other interested party of the right of cross-examination concerning
any written report or other material as specified in this section.
14.1.11
EFFECT OF PROCEEDINGS
14.1.11.1
No adjudication of disposition in proceedings shall impose any civil
disability upon a child or disqualify him from any tribal personnel
system or military service application or appointment or from holding
tribal office.
14.1.11.2
No adjudication, deposition, or evidence given in proceedings
shall be admissible against a child in any criminal or other action
or proceeding.
14.1.12
MEDIATOR-QUALIFICATIONS/ DUTIES
14.1.12.1
The Children's Court may appoint one or more mediators to hear any
case or matter under its jurisdiction. Mediators shall serve at
the pleasure of the Court, unless otherwise provided by law.
14.1.12.2
Mediators may conduct hearings in the manner provided for the hearing
of cases by the Court. Prior to any hearing, except those at which
the child is advised of his rights and either admits or denies the
allegations of the petition, the mediator shall inform the parties
that they have the right to a hearing before the Children's Court
Judge in the first instance, except on probable cause hearings,
and that they may waive that right, but that by waiving that right,
they are bound by the findings and recommendations of the mediator,
except as provided in subsection (4) Of this section. If a request
is made for this section. If a request is made for a hearing before
a Children's Court judge in the first instance, the mediator shall
terminate the hearing and transmit the case to the appointing judge.
14.1.12.3
At the conclusion of a hearing the mediator shall:
(a)
Transmit promptly to the Children's Court judge all papers relating
to the case together with his findings and recommendations in
writing.
(b)
Advise the parties before him of his findings and recommendations.
(c)
Advise the parties of their right to review of the findings and
recommendations by the Children's Court Judge.
14.1.12.4
A request for review shall be filed within five days after the conclusion
of the hearing and shall clearly set forth the grounds relied upon.
Such review shall be solely upon the record of the hearing before
the mediator.
14.1.13
COURT RECORDS-INSPECTION-EXPUNGEMENT
14.1.13.1
(a)
Records of court proceedings shall be open to inspection by the
parents or guardian, attorneys, and other parties in proceedings
before the court, and to any agency to which legal custody of
the child has been transferred, except records of court proceedings
in adoption and relinquishment shall be confidential and open
to inspection only by court order.
(b)
With consent of the Court, records of the court proceedings may
be inspected by the child, by persons having a legitimate interest
in the proceedings, and by persons conducting pertinent research
studies, except in relinquishment and adoption proceedings.
(c)
Probation counselor's records and all other reports of social
and clinical studies shall not be open to inspection, except by
consent of court.
14.1.13.2
(a)
Any person may petition the court for the expungement of his record
and shall be so informed at the time of adjudication, or the court,
on its own motion may initiate expungement proceedings concerning
the record of any child who has been under the jurisdiction of
the court. Such petition shall be filed or such court order entered
no sooner than two years after the date of termination of the
Court's jurisdiction over the person. Only by stipulation of all
parties involved may expungement be applied for prior to the expiration
of two years from the date of termination of the Court's jurisdiction
of the Court's jurisdiction or termination of the Court's supervision
under an informal adjustment.
(b)
Upon filing of a petition or entering of a court order, the Court
set a date for a hearing and shall notify the tribal prosecutor
and anyone else whom the court has reason to believe may have
relevant information related to the expungement of the record.
(c)
The Court shall order sealed all records in the petitioner's case
in the custody of the court and any records in the custody of
any other agency or official, if at the hearing the Court finds
that:
(i)
The subject of the hearing has not been convicted of a felony
or of a misdemeanor involving moral turpitude and has not been
adjudicated under this Title since the termination of the court's
jurisdiction.
(ii)
No proceeding concerning a felony or a misdemeanor involving
moral turpitude or a petition under this Title is pending or
being instituted against him; and
(iii)
The rehabilitation of the person has been attained to the satisfaction
of the court.
(d)
Upon the entry of an order to seal the records, the proceedings
in the case shall be deemed never to have occurred, and all index
references shall be deleted, and the person and the court may
properly reply that no record exists with respect to such person
upon any inquiry in the matter.
(e)
Copies of the order shall be sent to each agency or official named
therein.
(f)
Inspection of the records included in the order may thereafter
be permitted by the court only upon petition by the person who
is the subject of such records and only to those person named
in such petition.
14.1.13.3
In any proceedings under this Title in which the court orders the
petition dismissed, the court may order the records expunged. Such
order of expungement may be entered without delay upon petition
of the child or any party or upon the court's motion.
14.1.14
RIGHT OF APPEALS
Appeals
will be dealt with pursuant to appellate procedures as provided herein.
CHAPTER 2
14.2.0
TEMPORARY CUSTODY, DETENTION AND SHELTER
14.2.1
TAKING CHILDREN INTO CUSTODY
14.2.1.1
A child may be taken into temporary custody by a law enforcement officer
without order of the court:
(a)
When he is abandoned, lost, or seriously endangered in his surroundings
or seriously endangers others and immediate removal appears to be
necessary for his protection or the protection of others; or
(b)
When there are reasonable grounds to believe that he has run away
or escaped from his parents, guardian, or legal custodian.
(c)
When an Indian Child Welfare or Social Services Department worker
reports a case and there is probable cause to believe that the child
is in danger.
14.2.1.2
A Tribal Law Enforcement Officer accompanied by an employee of the
Social Service Department or their designated representative may take
a child into temporary custody:
(a)
Under any of the circumstances stated in subsection 14.2.1.1 of
this section: or,
(b)
If he has violated the conditions of probation and he is under the
continuing jurisdiction of the Children's Court.
14.2.1.3
The taking of a child into temporary custody under this section is
not an arrest nor does it constitute a police record.
14.2.2
DUTY OF OFFICER-NOTIFICATION-RELEASE OR DETENTION-RECORDS
14.2.2.1
When a child is taken into temporary custody, the officer shall notify
a parent, guardian, or legal custodian without unnecessary delay and
inform him/ her that, if the child is placed in detention, all parties
have a right to a prompt hearing to determine whether the child is
to be detained further. Such notification may be made to a person
with whom the child is residing if a parent, guardian, or legal custodian
cannot be
located. If the officer taking the child into custody is unable to
make such notification, it may be made by any other law enforcement
officer, probation counselor, detention center counselor, an employee
of the Social Service Department, or in whose physical custody the
child is placed.
14.2.2.2
The child shall be released to the care of his parents or other responsible
adult, unless his immediate welfare or the protection of the community
requires that he be detained. The parent or other person to whom the
child is released may be required to sign a written promise, on forms
supplied by the court at a time set or to be set by the court.
14.2.2.3
Except as provided in paragraph (a) of this subsection, a child shall
not be detained by law enforcement officials any longer than is reasonably
necessary to obtain his name, age, residence, or other necessary information
and to contact his parents, guardian, or legal custodian.
(a)
If he is not released as provided in subsection 14.2.2.2, he shall
be taken directly to the court or to the place of detention or shelter
designated by the court without unnecessary delay.
14.2.2.4
The officer or other person who takes a child to a detention or shelter
facility shall notify the court and ant agency or persons so designated
by the court at the earliest opportunity that the child has been taken
into custody and where he has been taken. He shall also promptly file
a brief written report with the court and any agency or person so
designated by the court stating the facts which led to the child being
taken into custody and the reason why the child was not released.
14.2.2.5
The records of law enforcement officers concerning all children taken
into temporary custody or issued a summons under the provisions of
this Title shall be maintained separately from the records of arrest
and may not be inspected by or disclosed to the public, including
the names of children taken into temporary custody or issued a summons,
except:
(a)
When the child has escaped from an institution to which he has been
committed.
(b)
By order of the court.
14.2.2.6
No fingerprint, photograph, name, address, or other information concerning
identity of a child taken into temporary custody or issued a summons
under the provision of this chapter may be transmitted to the Federal
Bureau of investigation or any other person or agency except a local
law enforcement agency and Social Service Department when necessary
to assist in apprehension or to conduct a current investigation, or
when the court orders the child to be held for criminal proceedings.
14.2.3.
DETENTION AND SHELTER -HEARING -TIME LIMITS -RESTRICTION
14.2.3.2
A child who must be taken from his home but who does not require physical
restriction shall be given temporary care in a shelter facility designated
by the court or the Tribal Social Services Department and shall not
be placed in detention.
14.2.3.2
When a child is placed in a detention facility or in a shelter facility
designated by the court, the law enforcement official taking the child
into custody shall promptly so notify the court. He shall also notify
a parent or legal guardian or if a parent or legal guardian cannot
located within the Tribe's jurisdiction, the person with whom the
child has been residing, and inform him of the right to a prompt hearing
to determine whether the child is to be detained further. The court
shall hold such detention hearing within 48 hours, excluding Saturdays,
Sundays and court holidays.
14.2.3.3
No child taken into custody pursuant to this Title shall be held longer
than 48 hours, at which tine the child may be released to the custody
of parent, guardian, or legal custodian. If the child cannot be released
to his parent, guardian, or legal custodian, he shall be released
to a representative of the Tribal Social Services Department or, upon
prior written or verbal approval of the court, a responsible adult.
If the child is not released to his parents, guardian, or legal custodian,
the court shall hold a detention hearing pursuant to subsection 14.2.3.2.
(a)
Notwithstanding the provisions of subsection 14.2.3.2, a child who
is alleged to be a runaway from another tribal facility or jail
up to seven (7) days, at which time arrangement may be made for
returning the child to his parent, guardian, or legal custodian.
(b)
if it appears that any child being held in detention or shelter
may be mentally ill as defined under this Title or developmentally
disabled the court shall place the child is a designated facility
approved by the court for a 72-hour treatment and evaluation.
14.2.3.4
The court may at any time order the release of any child from detention
or shelter care without holding a hearing, either without restriction
or upon written promise of the parent, guardian, or legal custodian
to bring the child to the court at a time to be set by the court.
14.2.3.5
After making a reasonable effort to obtain the consent of the parent,
guardian, or other legal custodian, the court may authorize or consent
to medical, surgical, or dental treatment or care for a child placed
in detention or shelter care. When the court finds that emergency
medical, surgical, or dental treatment is required for a child placed
in detention or shelter care. When the court finds that emergency
medical, surgical, or dental treatment is required for a child placed
in detention or shelter care, it may authorize such treatment or care
if the parent, guardian, or legal custodian are not immediately available.
14.2.4
TEMPORARY SHELTER -CHILD'S HOME
14.2.4.1
The court may find that it is not necessary to remove a child from
his home to a temporary shelter facility and may provide temporary
shelter in the child's home by authorizing a representative of the
Tribal Social Services Department, which will have emergency caretaker
services available, to remain in the child's home with the child until
a parent, legal guardian, or relative of the child enters the home
and expresses willingness and has the apparent ability, as determined
by the Tribal Social Services Department, to resume charge of the
child, but in no event shall such period of time exceed 72 hours.
In the case of a relative, the relative is to assume charge of the
child until a parent or legal guardian enters the home and expresses
willingness and has the apparent ability, as determined by the Tribal
Social Services Department, to resume charge of the child. The director
of the Tribal Social Services Department shall designate in writing
the representatives of these departments authorized to perform such
duties.
14.2.5
SEARCH WARRANTS FOR THE PROTECTION OF CHILDREN
14.2.5.1
A search warrant may be issued by the Children's Court to search any
place for the recovery of any child within the jurisdiction of the
court believed to be a child in need of supervision, or a neglected
and/ or dependent child.
14.2.5.2
Such warrant shall be issued only on the condition that the application
for warrant shall:
(a)
Be in writing and supported by affidavit sworn to or affirmed before
the court:
(b)
Name and describe with particularity the child sought;
(c)
State that the child is believed to be a child in need of supervision,
or a neglected or dependent child and the reasons upon which such
belief is based;
(d)
State the address or legal description of the place to be searched.
(e)
State the reasons why it is necessary to proceed pursuant to this
section.
14.2.5.3
If the court is satisfied that grounds for the application exist of
that there is probable cause to believe that they exist, it shall
issue a search warrant identifying by name or describing with particularity
the child sought and the place to be searched.
14.2.5.4
The search warrant shall be directed to any officer authorized by
law to execute it wherein the place to be searched is located.
14.2.5.5
The warrant shall state the grounds or probable cause for its issuance
and the names of the persons whose affidavits have been taken in support
thereof.
14.2.5.6
The warrant shall be served in the daytime unless the application
for the warrant alleges that it is necessary to conduct the search
at some other time, in which case the court may so direct.
14.2.5.7
A copy of the warrant, the application thereof, and the supporting
affidavit shall be served upon the person in possession of the place
to be searched and where the child is to be sought.
14.2.5.8
If the child is found, the child may be taken into custody in conformance
with the provision of this Title.
14.2.5.9
The executed warrant shall be returned to the court.
CHAPTER 3: PETITION, ADJUDICATION, AND DISPOSITION
14.3.1
PETITION INITIATION - PRELIMINARY INVESTIGATION - INFORMAL ADJUSTMENT
14.3.1.1
(a)
Whenever it appears to a law enforcement officer or other person
that a child is or appears to be within the court's jurisdiction,
the law enforcement officer or other person may refer the matter
conferring or appearing to confer jurisdiction to the tribal presenting
officer who shall determine whether the interests of the child or
of the community require that further action be taken.
(b)
If the tribal presenting officer determines that the interests of
the child or of the community require that further action be taken,
he may file a petition on a form specified which shall be accepted
by the court.
(c)
If the tribal presenting officer is unable to determine whether
the interests of the child or of the tribe require that further
action be taken from information available to him, he may refer
the matter to the tribal social services department, or other agency
designated by the court for a preliminary investigation and recommendations
as to filing a petition or as to initiation an informal adjustment
under subsection 14.3.1.3.
(i)
Whether probable cause exists to believe the minor is a child
in need of supervision or is a neglected child or a dependent
child; and ,
(ii)
Whether shelter care is necessary pending further proceedings.
14.3.1.2
Whenever it appears to a law enforcement officer or other person that
a child is or appears to be within the court's jurisdiction, the law
enforcement officer or other person may refer the matter to the court,
which shall have a preliminary investigation made to determine whether
the further action be taken, which investigation shall be made by
the tribal social services department, or any other agency designated
by the court. On the basis of the preliminary investigation, the court
may:
(a)
Decide that no further action is required, either in the interests
of the tribe or of the child;
(b)
Authorize a petition to be filed; or
(c)
Make whatever informal adjustment is practicable without a petition
if:
(i)
The facts are admitted and establish prima facie jurisdiction;
except that such admission shall not be used in evidence if a
petition is filed; and,
(ii)
Written consent is obtained from the parents, guardian, or other
legal custodian and also from the child, if of sufficient age
and understanding.
14.3.1.3
Efforts to effect informal adjustment may extend no longer than six
months. In any informal adjustment, the court or its designated agency
shall , during the period of informal adjustment, periodically counsel
and guide the child and his parents, guardian, or legal custodian
in a constructive manner designed to promote rehabilitation as well
as requiring any one or more conditions of probation.
14.3.1.4
(a)
Upon receipt of a report filed by a law enforcement agency, by an
employee of a public or private school, or by a medical doctor,
or any other person required to report pursuant to this Title indicating
that a child has suffered abuse as defined herein and that the best
interests of the child require that he be protected from risk of
further such abuse, the court shall then authorize and may order
the filing of a petition.
(b)
Upon receipt of a report from any person other than those identified
herein, the court, after such investigation as may be reasonable
under the circumstances, may authorize and may order the filing
of a petition.
14.3.2
PETITION FORM AND CONTENT
14.3.2.1
The petition and all subsequent court documents in any proceedings
brought under this Title shall be entitled "The Hoopa Valley
Tribe in the interest of ...., a child (or children) and concerning
...., Respondent". The petition shall be verified, and the statement
in the petition may be made upon information and belief.
14.3.2.2
The petition shall set forth plainly the facts which bring the
child within the court's jurisdiction. The petition shall also state
the name, age, and resident of the child and the names and residences
of the parents, guardian, or other legal custodian if known.
14.3.2.3
All petition filed alleging the dependency or neglect of a child shall
include the following statement: "Termination of the parent/
child legal relationship is a possible remedy available if this petition
alleging that a child is dependent or neglected is sustained."
A separate hearing must be held before such termination is ordered.
Termination of the parent/ child legal relationship means that the
child who is the subject of this petition would be eligible for adoption.
14.3.3
SUMMONS - ISSUANCE - CONTENTS - SERVICE
14.3.3.1
After a petition has been filed, the court shall promptly issue a
summons reciting briefly the substance of the petition. The summons
shall also contain a statement, when appropriate, that the termination
of the parent/ child legal relationship is a possible remedy under
the proceedings. Other legal rights of the child, his parents or guardian,
or any other respondent, at his own expense, to have an attorney present
at the hearing on the petition. The court may appoint counsel for
child.
14.3.3.2
No summons shall be issued to any respondent who appears voluntarily,
or who waives service, or who has promised in writing to appear at
the hearing, but any such person shall be provided with a copy of
the petition and summons upon appearance.
14.3.3.3
The summons shall require the person or persons having the physical
custody of the child to appear and to bring the child before the court
at the time and place stated. If the person or persons so summoned
are not the parents or guardian of the child, the summons shall also
be issued to the parents or guardian, or both, notifying them of the
pendency of the case and of the time and place set for the hearing.
14.3.3.4
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. Any party to the action may request the issuance of compulsory
process by the court requiring the attendance of witnesses on his
own behalf or on behalf of the child.
14.3.3.5
If it appears that the welfare of the child or of the tribe requires
that the child be taken into custody, the court may, by endorsement
upon the summons, direct that the person serving the summons take
the child into custody at once.
14.3.3.6
The court may authorize payment of necessary travel expenses incurred
by persons required to appear, which payments shall not exceed the
amount allowed to witnesses for travel by the tribal court.
14.3.3.7
Summons shall be served personally, pursuant to the tribal rules of
civil procedure. If personal service is effected not less than two
days before the time fixed in the summons for the appearance of the
person served; except that personal service shall be effected not
less than five days prior to the time set for a hearing concerning
a dependent or neglected child.
14.3.3.8
If the parents, guardian, or other legal custodian of the child required
to be summoned cannot be found within the tribal jurisdiction, the
fact of the child's presence within the tribe's jurisdiction shall
confer jurisdiction on the court as to any absent parent, guardian,
or legal custodian if due notice has been given in the following manner:
(a)
When the residence of the person to be served is outside the Hoopa
Reservation, a copy of the summons and petition shall be sent certified
mail with postage prepaid to such person at his place of residence
with a return receipt requested. Service of summons shall be deemed
complete within five (5) days after return of the requested receipt.
(b)
When the person to be served has no residence within the Hoopa Reservation
and his place of residence cannot be determined after due diligence,
service may be by publication.
14.3.4
CONTEMPT-WARRANT
14.3.4.1
Any person summoned or required to appear who has acknowledged service
and fails to appear without reasonable cause may be proceeded against
for contempt of court.
14.3.4.2
If after reasonable effort the summons cannot be served or if the
welfare of the child requires that he be brought immediately into
the custody of the court, a bench warrant may be issued for the parents,
guardian, or other legal custodian or for the child.
14.3.4.3
When a parent or other person who signed a written promise to appear
and bring the child to court 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.
14.3.5
APPOINTMENT OF GUARDIAN AD LITEM
14.3.5.1
The court may appoint a guardian ad litem to protect the interests
of a child in proceedings when:
(a)
No parent, guardian, legal custodian, or relative of the child appears
at the first or any subsequent hearing in the case; or
(b)
The court finds that there may be a conflict of interest between
the child and his parent, guardian, or other custodian; or
(c)
the court finds that it is in the child's interest and necessary
for his welfare, whether or not a parent, guardian, or other legal
custodian is present.
14.3.5.2
The court may appoint a guardian ad litem for any parent in proceedings
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, he shall be
informed that a guardian ad litem has been appointed.
14.3.5.3
At the time any child first appears in court, if it is determined
that he has no guardian of his person, the court shall appoint a guardian
of the person of the child before proceeding with the matter.
14.3.5.4
In all proceedings brought for the protection of a child suffering
from abuse or non-accidental injury, a guardian ad litem shall be
appointed for said child. Said guardian shall have the powers and
duties specified by the Court.
14.3.6
ADJUDICATORY HEARING - FINDINGS - ADJUDICATION
14.3.6.1
At the adjudicatory hearing, which shall be conducted as provided
herein, the court shall consider whether the allegations of the petition
are supported by evidence beyond a reasonable doubt in cases concerning
children in need of supervision or by a dependent children; 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.
14.3.6.2
When it appears that the evidence presented at the hearing discloses
facts not alleged in the petition, the court may proceed immediately
to consider the additional or different matters raised by the evidence
if the parties consent. In such event, the court, on the motion of
an interested party or on its own motion, shall order the petition
to be amended to conform to the evidence.
(a)
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 proceedings.
(b)
If it appears from the evidence that the child may be mentally ill
or developmentally disabled the court shall proceed under section
14.3.7.
14.3.6.3
After making a finding but before making adjudication, the court may
continue the hearing from time to time, allowing the child to remain
in his own home or in the temporary custody of another person or agency
subject to such conditions of conduct and of visitation or supervision
by the tribal social services department as the court may prescribe,
if:
(a)
Consent is given by the child and his parent, guardian, or other
legal custodian after being fully informed by the court of their
rights in the proceedings, including their right to have an adjudication
made either dismissing or sustaining the petition.
(b)
Such continuation shall extend no longer than six months without
review by the court. Upon review the court may continue the case
for an additional period not to exceed six months, after which the
petition shall either be dismissed or sustained.
14.3.7
MENTALLY ILL OR DEVELOPMENTALLY DISABLED CHILD - DEFINITIONS - PROCEDURE
14.3.7.1
Definitions:
(a)
"Developmental disability" means a disability attributable
to mental retardation, cerebral palsy, 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.
(b)
"Mentally ill person" means a person who is of such mental
condition that he is in need of medical supervision, treatment,
care or restraint.
(c)
"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 he or she lacks sufficient control
judgment and discretion to manage their property or affairs or who,
by reason of this deficiency and for his own welfare or the welfare
or safety of others, requires protective supervision, guidance,
training, control, or care.
14.3.7.2
If it appears from the evidence presented at an adjudicatory hearing
or otherwise that the child may be mentally ill or developmentally
disabled, the court shall order that the child be place the child
in a hospital or other suitable facility for the purpose of examination
for a period not to exceed 72 hours, excluding Saturdays, Sundays,
and official holidays. A suitable facility for the purpose of examination
shall be a facility designated by the court for 72 hour treatment
and evaluation.
14.3.7.3
If the report of the examination made states that the child is mentally
ill to the extent that hospitalization or institutional confinement
and treatment is required, the court shall proceed as in any other
tribal mental health commitment proceeding.
14.3.7.4
The court may dismiss the original petition when a child who has been
ordered to receive treatment is no longer receiving treatment.
14.3.7.5
The court shall set a time for resuming the hearing on the original
petition when:
(a)
The report if the examination made states that the child is not
mentally ill to the extent that hospitalization or institutional
confinement and treatment are required.
(b)
The child is found not to be mentally ill.
(c)
The report of the examination made states that the child is developmentally
disabled but not mentally ill.
14.3.8
DISPOSITIONAL HEARING
14.3.8.1
After making an order of adjudication, the court shall hear evidence
on the question of the proper disposition best serving the interest
of the child and the tribe. Such evidence shall include, but not necessarily
be limited to, the social study and other reports.
14.3.8.2
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.
14.3.8.3
The court may continue the dispositional hearing, either on its own
motion or on the motion of any interested party, for a reasonable
period to receive reports or for good cause on the motion of any interested
party in any case where the termination of the parent/ child relationship
is a possible remedy.
(a)
If the hearing is continued, the court shall make an appropriate
order for detention of the child or for his release in the custody
of his parents, guardian, or other responsible person or agency
under such conditions of supervision as the court may impose during
the continuance.
(b)
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.
14.3.9
ORDER OF PROTECTION
14.3.9.1
The court may make an order of protection in assistance of, or as
a condition of, and 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 parents, guardian, or
any other person who is a party to a proceeding.
14.3.9.2
The order of protection may require any such person:
(a)
To stay away from a child or his residence;
(b)
To permit a parent a visit a child at stated periods;
(c)
To abstain from offensive conduct against a child, his parents or
parents, guardian, or any other person to whom legal custody of
a child has been given;
(d)
To give proper attention to the care of the home;
(e)
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.
(f)
To refrain from acts of commission or omission that tend to make
a home am improper place for a child; or
(g)
To perform any legal obligation of support.
14.3.9.3
When such an order of protection is made applicable to a parent or
guardian, it may specifically require his 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.
14.3.9.4
After notice and opportunity for a hearing is given to a person subject
to an order of protection, this 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.
14.3.9.5
A person failing to comply with an order of protection without good
cause may be found in contempt of court.
14.3.10
NEGLECT OF DEPENDENT CHILD - DISPOSITION
14.3.10.1
When a child has been adjudicated to be neglected or dependent, the
court shall enter a decree of disposition. When the decree does not
terminate the parent/ child legal relationship, it shall include one
or more of the following provisions which 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,
under such conditions as the court may impose.
(c)
The court may place legal custody in the tribal social services
department or a child placement agency for placement in a family
care home, or other child care facility.
(d)
The court may order that the child be examined or treated by a physician,
surgeon, psychiatrist, or psychologist or that he receive special
care and may place the child in a hospital or other suitable facility
for such proposes.
14.3.10.2
The court may enter a decree terminating the parent/ child legal relationship
of one or both parents pursuant to this Title.
(a)
Upon the entry of a decree 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 and whose father does not acknowledge
paternity, the court may:
(i)
Vest the tribal social services department or child placement
agency with the legal custody and guardianship of the person of
a child for the purpose of placing the child for adoption; or
(ii)
Make any other disposition provided in this section that the court
finds appropriate.
(b)
Upon the entry of a decree terminating the parent/ child legal relationship
of one parent, the court may:
(i)
Leave the child in the legal custody of the other parent and discharge
the proceedings; or
(ii)
Make any other disposition that the court finds appropriate.
14.3.10.3
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:
(a)
That the parent or parents having legal custody have willfully surrendered
physical custody for a period of six months and during this period
have not manifested to the to resume physical custody a firm intention
to resume physical custody or to make a permanent legal arrangement
for the care of the child; or
(b)
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 child has failed.
14.3.10.4
In placing the legal custody or guardian of the person of a child
with an individual or a private agency. 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.
14.3.10.5
The court may grant a new hearing as provided herein.
14.3.11
CHILD IN NEED OF SUPERVISION - DISPOSITION
14.3.11.1
When a child has been adjudicated as being in need of supervision,
the court shall enter a decree of disposition containing one or more
of the following provisions which the court finds appropriate:
(a)
The court may place the child on probation or under protective supervision
in the legal custody of one or both parents or the guardian under
such conditions as the court may impose.
(b)
The court may require as a condition of probation that the child
report for assignment to a supervised work program or place such
child in a child care facility which shall provide a supervised
work program, if:
(i)
The child is not deprived of the schooling which is appropriate
to his age, needs, and specific rehabilitative goals;
(ii)
The supervised work program is of a constructive nature designed
to promote rehabilitation, is appropriate to the age level and
physical ability of the child, and is combined with counseling
from guidance personnel; and
(iii)
The supervised work program assignment is made for a period of
time consistent with the child's best interests, but not exceeding
one hundred eighty (180) days.
(c)
The court may place legal custody in the tribal social services
department or a child placement agency for placement in a family
care home or child care facility, or it may place the child in a
child care center.
(d)
The court may order that the child be examined or treated by a physician,
surgeon, psychiatrist, or psychologist, or that he received other
special care, and may place the child in a hospital or other suitable
facility for such purposes.
(e)
The court may require the child to pay for any damage done to persons
or property, upon such conditions as the court may deem best, when
such payment can be enforced without serious hardship or injustice
to the child.
(f)
The court may commit the child to an institution or group care facility
designated by the court.
14.3.11.2
The court may grant a new hearing as provided herein.
14.3.12
COMMITMENT TO DESIGNATED INSTITUTION
14.3.12.1
When a child is committed to an institution designated by the court,
the court shall transmit, with the commitment order, a copy of the
petition, the order of adjudication, copies of the social study, any
clinical or educational reports, and other information pertinent to
the care and treatment of the child. The designated institution shall
provide the court with any information concerning a child committed
to its care which the court at any time may require.
14.3.12.2
A commitment of a child to a designated institution shall be for an
indeterminate period not to exceed two years. The tribal social services
department may petition the committing court to extend the commitment
for an additional period not to exceed two years. The petition shall
set forth the reasons why it would be in the best interest of the
child or the public to extend the commitment. Upon filing the petition,
the court shall granted or denied and shall notify all interested
parties.
14.3.13
LEGAL CUSTODY-GUARDIANSHIP
14.3.13.1
Any individual, agency, or institution vested by the court with legal
custody of a child shall have the rights and duties defined herein;
except that no guardian of the person may consent to the adoption
of a child unless that authority is expressly given him by the court.
14.3.13.2
If legal custody or guardianship of the person is vested in an agency
or institution, the court shall transmit, with the court order, copies
of the social study, any clinical reports, and other information concerning
the care and treatment of the child.
(a)
An individual, agency, or institution having legal custody or guardianship
of the person shall provide the court with any reports or other
information concerning the care and treatment of the child at any
time when required to do so by the court.
14.3.13.3
Any agency other than the social services department or institutions
vested by the court with legal of a child shall have the right, subject
to the approval of the court, to determine when and with whom the
child shall live. No individual vested by the court with legal custody
of a child shall remove the child from the state for move than thirty
days without court approval.
14.3.13.4
A decree vesting legal custody of a child in an individual, institution,
or agency other than the tribal social services department shall be
for an indeterminate period, not to exceed two years from the date
it was entered. Such decree shall be reviewed by the court no later
than six months after it is entered.
(a)
The individual, institution, or agency vested with legal custody
of a child may petition the court for renewal of the decree. The
court, after notice and hearing, may determine, if it finds such
renewal to be n the best interest of the child. The findings of
the court and the supporting information shall be entered with the
order renewing or denying renewal of the decree.
14.3.13.5
No legal custodian or guardian of the person may be removed without
his consent until given notice and an opportunity to be heard by the
court if he so requests.
14.3.14
NEW HEARING AUTHORIZED
14.3.14.1
A parent, guardian, custodian, or next friend of any child adjudicated
under this chapter, or any person affected by a decree in a proceeding
under this chapter, or any person affected by a decree in a proceeding
under this chapter, may petition the court for a new hearing on the
following grounds:
(a)
That new evidence, which was not known or could not with due diligence
have been made available to the original hearing and which might
affect the decree, has Been discover; or
(b)
That irregularities in the proceedings prevented a fair hearing.
14.3.14.2
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 the facts and circumstances and the best interest
of the child.
14.3.15
CONTINUING JURISDICTION
Except
as otherwise provided in this Title, the jurisdiction of the court over
any child adjudicated as neglected or dependent or in need of supervision
shall continue until he becomes eighteen years of age unless terminated
by a court order.
14.3.16
ADULT CASES-PROCEEDINGS - PENALTY - SUSPENSION
Proceedings
concerning any adult who is alleged to have induced, aided, or encouraged
a child to violate any law, the penalty for which may be a jail sentence
or court order shall be conducted according to tribal civil court rules
or other appropriate court as designated by the tribal court.
CHAPTER 4: CHILD ABUSE
14.4.1
LEGISLATIVE PURPOSE
The Hoopa
Valley Tribe hereby declares that the complete reporting of child abuse
is a matter of tribal concern and that in enacting this chapter it is
the intent of the tribe to protect the children of the tribe and to
offer protective services in order to prevent any further harm to a
child suffering from abuse. It is the further intent of the tribe that
the various federal, state, and tribal medical, mental health, education,
and social services agencies through cooperative participation in the
child protection teams authorized to be created in this chapter.
14.4.2
DEFINITIONS
As used
in this chapter unless the context otherwise requires.
14.4.2.1
"ABUSE" or "CHILD ABUSE OR NEGLECT" means
an act or omission which seriously threatens the health or welfare
of a child. It means a physical injury which is inflicted by other
than accidental means on a child by another person. Child abuse also
means the sexual assault or exploitation of a child; willful cruelty
or unjustifiable punishment of a child; corporal punishment or injury;
neglect of a child; abuse in out of home care; or emotional abuse
of a child.
(a)
Any case in which a child exhibits evidence of skin bruising, bleeding,
malnutrition, failure to thrive, burns, fracture of any bone, subdural
hematoma, soft tissue swelling, or death, and such condition or
death as at variance with the degree or type of such condition or
death, or circumstances indicate that such condition may not be
the product of an accidental occurrence.
(b)
Any case in which a child is subject to sexual assault, molestation,
or exploitation as described herein:
(i)
"Sexual assault" means conduct in violation of
the following: rape, rape in concert, incest, sodomy, lewd or
Lascivious acts upon a child, oral copulation, penetration of
a genital or anal opening by a foreign object.
(Ii)
"Sexual molestation" means any indecent touching
or acts designed to bring about a sexual response from a child.
(iii)
"Sexual exploitation" means any acts involving
a child for: employment of a minor to perform obscene acts; conduct
involving matter depicting a minor engaged in obscene acts; preparing,
selling, or distributing obscene matter involved in obscene acts;
or prostitution.
(iv)
These acts when committed by a person under the age of 18 who
is either significantly older than the victim or in a position
of power or control over another youth, may be considered sexual
abuse.
(c)
"Willful cruelty or unjustifiable punishment of a child"
means a situation where any person willfully causes or permits any
child to suffer, or inflicts hereon, unjustifiable physical pain
or mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of such child to
be placed in such a situation that his or her person or health is
endangered.
(d)
"Corporal punishment or injury" means a situation
any person willfully inflicts upon the child any cruel or inhuman
corporal punishment or injury resulting in a traumatic situation.
(e)
"Neglect" means the negligent treatment or the
maltreatment of a child by a person responsible for the child's
health or welfare. The term includes both acts and omissions on
the part of the responsible person.
(i)
Typical forms of neglect include: abandonment, lack of supervision,
nutritional neglect, medical/ dental or health neglect, educational
neglect, inappropriate or insufficient clothing, shelter neglect,
emotional neglect, and moral neglect, also includes continued
infestation of head lice on person and in home.
(Ii)
"General neglect" means the ne |