Nez Perce Tribal Code, Title 5 - Juveniles and Dependents

Title 5 - Juveniles and Dependents

Chapter 5-1 - Minors In Need Of Care

INTRODUCTORY PROVISIONS

§ 5-1-1 Definitions

(a) "Abandon" means the failure of the parent(s), guardian or custodian to provide reasonable support and to maintain regular contact with a child. Failure to maintain a normal parental relationship with the child without just cause for a period of one year shall constitute prima facie evidence of abandonment. Custody with extended family members or voluntary consent to placement does not necessarily constitute abandonment.

(b) “Abuse” means the infliction of physical, emotional or mental injury on a child; sexual abuse or sexual exploitation of a child, including treatment, exploiting or overworking a child to such an extent that his health, or emotional well-being is endangered; committing acts of domestic violence in the physical presence of a child or knowing that a child is present and may see or heat an act of domestic violence. (revised 6/22/99)

(c) "Acknowledged father" means a man who has established a father-child relationship under the Voluntary Acknowledgment of Paternity section of this Chapter;

(d) "Adjudicated father" means a man who has been adjudicated by a court of competent jurisdiction to be the father of a child;

(e) "Adult" means a person eighteen (18) years of age or older, or otherwise emancipated by order of a court of competent jurisdiction.

(f) "Alleged father" means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. The term does not include:

(1) A presumed father;

(2) A man whose parental rights have been terminated or declared not to exist; or

(3) A male donor.

(g) “Case Plan” means a plan developed by the social services worker, the child(ren) and family to remedy the problem. (added 6/22/99)

(h) "Child or minor" means a person who is less than eighteen (18) years old and has not been emancipated by order of a court of competent jurisdiction.

(i) “Child Protection Core Team” means a core team consisting of service providers from various agencies established to involve and coordinate child welfare and protection services for children. (Added 6/22/99)

(j) "Commence" means to file the initial pleading seeking an adjudication of parentage in the Nez Perce Tribal Court;

(k) "Custodian" means a person, other than a parent or guardian, to whom custody of the child has been given.

(l) “Department” means the Tribal Social Services Department of the Nez Perce Tribe. (Added 6/22/99)

(m) "Determination of parentage" means the establishment of the parent-child relationship by the signing of a valid acknowledgment of paternity under this Chapter or by adjudication by the court;

(n) "Domicile" means a person's residence in which they intend to remain indefinitely.

(o) "Emergency foster home" means a foster home which has been licensed to accept emergency placements of children at any hour of the day or night.

(p) "Extended family" means a person who has reached the age of eighteen (18) years and who is the minor's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, stepparent or is considered to be extended family under the laws and custom of the Nez Perce Tribe.

(q) "Foster home" means a home which has been licensed under this chapter.

(r) "Garnishee" means the person against whom an order of garnishment is entered.

(s) "Genetic testing" means an analysis of genetic markers to exclude or identify a man as the father or a woman as the mother of a child. The term includes an analysis of one (1) or a combination of the following:

(1) Deoxyribonucleic acid (DNA); and

(2) Blood-group antigens, red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins or red-cell enzymes.

(t) "Guardian" means a person assigned by a court of law, other than a parent, having the duty and authority to provide care and control of a child.

(u) "Guardian Ad Litem" means a person appointed by the Court to represent the child's interests before the Court.

(v) "Incompetent" means a lack of ability, legal qualification or fitness to care for ones child.

(w) "Man" means a male individual of any age;

(x) "Neglect" means the failure of the parent(s), guardian or custodian to provide adequate food, clothing, shelter, medical care, education or supervision for the child's health and well-being.

(y) "Parent" includes a natural or adoptive parent, but does not include persons whose parental rights have been legally terminated, nor does it include the unwed father whose paternity has not been acknowledged or established.

(z) "Parent-child relationship" means the legal relationship between a child and a parent of the child. The term includes the mother-child relationship and the father-child relationship;

(aa) "Paternity index" means the likelihood of paternity calculated by computing the ratio between:

(1) The likelihood that the tested man is the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is the father of the child; and

(2) The likelihood that the tested man is not the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is not the father of the child and that the father is of the same ethnic or racial group as the tested man. (ab) "Presumed father" means a man who, by operation of law under § 5-1 (Presumption of Paternity section) is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding;

(AB) [Reserved]

(ac) "Probability of paternity" means the measure, for the ethnic or racial group to which the alleged father belongs, of the probability that the man in question is the father of the child, compared with a random, unrelated man of the same ethnic or racial group, expressed as a percentage incorporating the paternity index and a prior probability;

(ad) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

(ae) "Signatory" means an individual who authenticates a record and is bound by its terms;

(af) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States;

(ag) "Support" means any means of living including housing, food, clothing, health, medical needs, proper recreation, transportation expenses and others.

§ 5-1-2 Purpose

This chapter shall be construed to provide for the welfare, care and protection of Indian children and families on the Nez Perce Reservation and wherever they reside.

§ 5-1-3 Transfer of Jurisdiction

(a) The Court may transfer any juvenile proceedings before it to an appropriate state court or another tribal court where the state or the other tribe has a significant interest in the child and the transfer would be in the best interest of the child.

(b) The Court may accept or decline transfers of minor in need of care cases from other federal, state or tribal courts.

§ 5-1-4 Agent for Service of ICWA Notices

The Nez Perce Tribal agent for service of notice of state court child custody proceedings, as defined by the Indian Child Welfare Act, shall be the child welfare program or its designees. (Revised 6/22/99)

§ 5-1-5 Comity

State court orders and those issued by other tribal courts involving children over whom the Court could take jurisdiction may be recognized by the Court only after a full independent review of such state or tribal proceedings has determined:

(a) the Court had jurisdiction over the child;

(b) were applicable, the provisions of the Indian Child Welfare Act, 25 U.S.C. 1901 - et seq. were properly followed;

(c) due process was provided to all interested persons participating in the proceedings, and;

(d) the proceedings do not violate the public policies, or common law of the Nez Perce Tribe.

§ 5-1-6 Core Team (Revised 6/22/99)

(a) The purpose of the core team shall be to coordinate the resources and services of social services, juvenile and other experts in the prevention of abuse or neglect of Indian children. The core team shall be advisory in nature. Confidentiality shall be maintained by all team members at all times.

(b) The core team shall:

(1) review and monitor all child abuse and neglect reports referred to the Department, within the last thirty (30) days, to ensure that adequate preventive, protective, and corrective services are provided and the best interests of the child are being met;

(2) identify available community resources, programs and services for the prevention of child abuse and neglect;

(3) provide a forum for consideration of and recommendations on care, treatment, placement and disposition to appropriate staff or the Tribal Court;

(4) promote cooperation, communication, and consistency among agencies;

(5) develop procedures to provide effective and efficient preventive, protective, and corrective child abuse and neglect services; and

(6) assist in the development and implementation of plans to promote the long-term well-being of children and their families.

(c) The core team shall meet as often as necessary and at least one time each month. The child caseworker shall be responsible for the coordination of core team meetings including but not limited to:

(1) scheduling;

(2) establishing the agenda with the participation of the other
(3) oversight of meetings and recording of the minutes of meetings; and

(4) negotiating a memorandum of understanding with the appropriate federal and state agencies addressing participation, procedures, the purpose and function of the team and rules of order.

§ 5-1-7 Minors in Need of Care Records

(a) A record of all hearings under this chapter shall be made and preserved. Law enforcement records and files concerning a child shall be kept separate from the records and files of adults. All records including law enforcement and social service reports shall be confidential and shall not be open to inspection to any but the following:

(1) the child;

(2) the child's parent(s), guardian or custodian;

(3) the prospective adoptive parent(s);

(4) the child's counsel or guardian ad litem;

(5) the Court, law enforcement and social service personnel directly involved in the handling of the case;

(6) any other person by order of the Court, upon a showing of extraordinary need.

(b) Records or statistical information may be released for the purpose of legitimate research or study upon order of the Court as long as such information does not identify or tend to reveal the identity of any individual upon which it is based.

§ 5-1-8 Notice

For purposes of this chapter, those persons entitled to be notified of minor in need of care proceedings, shall include the parent(s), guardian or custodian of the child involved. Notification shall be conducted as provided by the Rules of Civil Procedures.

CHILD ABUSE REPORTS/INVESTIGATION/REMOVAL

§ 5-1-9 Duty to Report Child Abuse and Neglect (Revised 6/22/99)

(a) Any person who has reasonable cause to believe that a child has been abused, neglected or abandoned shall immediately report the abuse, neglect or abandonment to the Indian child welfare worker and/or tribal police.

(b) Any physician, nurse, dentist, optometrist, or any other medical or mental health professional; school principal, school teacher, or other school official; social worker; child day care center worker or other child care staff including foster parents, residential care or institutional personnel; counselor; peace officer or other law enforcement official; judge, attorney, court counselor, clerk of the Court, or other judicial system official who has a reasonable suspicion that a child has been abused, neglected or abandoned shall immediately make an oral report of the abuse, neglect or abandonment to the Indian child welfare worker and/or tribal police followed by a written report within five (5) business days.

(1) names, addresses, and tribal affiliation of the child and his parent(s), guardian, or custodian;

(2) the child's date of birth;

(3) the nature and content of the child's abuse or neglect;

(4) previous abuse or neglect of the child or his siblings, if known;

(5) the name, age, and address of the person alleged to be responsible for the child's abuse or neglect, if known; and

(6) the name and address of the person or agency making the report.

(7) the date, time and agency reported to, of the initial oral report.

(e) Any person mandated to report child abuse or neglect under this section who knowingly fails to do so or willfully prevents someone else from doing so shall be subject to a civil cause of action. All persons or agencies who report, in good faith, known or suspected instances of abuse or neglect shall be immune from civil liability and criminal prosecution related to such reporting.

§ 5-1-10 Investigation and Removal (Revised 6/22/99)

(a) In non-emergency situations the Department case worker shall investigate reports of child abuse, neglect or abandonment within three (3) business days of receiving a report. The tribal police or case worker may remove a child provided that:

(1) a court order is obtained; and

(2) the person removing the child ensures the safety and well-being of the child.

(b) In the case of an emergency, the tribal police shall immediately investigate any report of child abuse, neglect or abandonment. A tribal police officer may immediately remove a child if the officer reasonably believes:

(1) failure to remove the child may result in a substantial risk of death, permanent injury, or serious physical or emotional harm to the child; or

(2) the parent(s), guardian or custodian is absent and it appears, from the circumstances, that the child is unable to provide for his own basic necessities of life, and that no satisfactory arrangements have been made by the parent(s), guardian or custodian to provide for such necessities.

(c) Upon removal of a minor child from their home by the tribal police, the officer will immediately place the child with a caseworker from the Department or the Department of Health and Welfare.

§ 5-1-11 Notice of Removal

Within twenty four (24) hours of removing a child, the person responsible for such removal shall make all reasonable attempts to notify the parent(s), guardian or custodian of the removal and the reason therefor.

§ 5-1-12 Restrictions on Placement of Children

(a) A child alleged to be neglected or abused may be placed in the following (Revised 6/22/99):

(1) a licensed foster home or a home otherwise authorized under tribal law to provide foster care, group care or protective residence;

(2) a facility operated by a child welfare services agency approved by the Court;

(3) with a relative of the child who certifies to the case worker that the child will not be returned to the alleged abusive or neglectful parent(s), guardian or custodian without the prior approval of the Court; or

(4) any other suitable place approved by the Court.

(b) A child alleged to be neglected or abused shall not be detained in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be juvenile delinquents.

(c) No child shall remain in temporary custody for a period exceeding three business (3) days, unless a minor in need of care petition is filed.

PROCEEDINGS

§ 5-1-13 Proceedings in General

In addition to the other provisions of this chapter, in any juvenile proceedings:

(a) the Court shall advise the party(s) of the reason for the proceedings;

(b) parties may present evidence relating to the situation as authorized by the Court;

(c) evidence shall be admitted in accordance with the Rules of Evidence;

(d) the general public shall be excluded from the proceedings and the Court shall be authorized to further limit hearing attendance to only the parties, their counsel and witnesses; and

(e) the Court shall specify in writing the facts, grounds, and, if applicable, code sections upon which it relied in issuing its order.

§ 5-1-14 Filing Minor in Need of Care Petition

(a) minor in need of care proceedings shall be instituted by a petition filed by the tribal prosecutor with the Court on behalf of the tribe and in the best interests of the child. If a child has been removed from the home, then the petition shall be filed no later than 12:00 (noon) of the second business day following the removal.

(b) The minor in need of care petition shall set forth the following with specificity:

(1) the name, birth date, sex, residence and tribal affiliation of the child;

(2) the basis for the Court's jurisdiction;

(3) the specific allegations of abuse, neglect or abandonment;

(4) a plain and concise statement of the facts upon which the allegations of abuse, neglect or abandonment are based, including the date, time and location at which the alleged facts occurred;

(5) the names, residences and tribal affiliation of the child's parent(s), guardians or custodians, if known; and

(6) if the child is placed outside of the home, where the child is placed, the facts necessitating the placement and the date and time of the placement.

(c) The prosecutor may omit any petition information otherwise required by this section if he has reason to believe that such information will threaten the health or safety of the child involved and he submits a written explanation to the Court.

§ 5-1-15 Notice of Removal

Within twelve (12) hours of the filing of a minor in need of care petition involving a child who has been removed from the home, the Tribal Court shall make all reasonable efforts to notify the parent(s), guardian or custodian of such filing.

§ 5-1-16 Shelter Care Hearing

(a) A shelter care hearing shall be held before the end of the second business day following the filing of the minor in need of care petition in order to determine whether:

(1) it is reasonable to believe that continuing absence from the home is necessary to protect the well-being of the child;

(2) the best interest of the child requires further action from the Court; and

(3) the Tribal Court has jurisdiction over the case.

(b) All parties shall be entitled to advance copies of court documents, including petitions and reports, unless otherwise ordered by the Court.

(1) be represented by an attorney at their own expense in all proceedings under this chapter;

(2) introduce evidence;

(3) be heard on their own behalf;

(4) examine witnesses; and

(5) be informed of possible consequences if the allegations of the petition are found to be true.

(d) Possible outcomes of the shelter care hearing may include:

(1) dismissal of the petition and the return of the child to the home of the parent(s), guardian or custodian;

(2) granting of the petition and;

(A) the return of the child to the home of the parent(s), guardian or custodian under the supervision of the Court;

(B) continue the child in out-of-home placement; or

(3) stipulation by the parent(s) that the child is in need of care and to voluntary placement.

(e) If the minor in need of care petition is not dismissed or stipulated to at the shelter care hearing or within thirty (30) days thereafter, the Court will set a date for formal trial. Such date will be no later than ninety (90) days after the filing of the petition.

§ 5-1-17 Trial

(a) During a trial on a minor in need of care petition:

(1) if the Court determines that it is in the best interests of the child and does not violate the rights of any party it may allow the child to testify by means of a videotape deposition, closed circuit television or other appropriate method; or

(2) the burden of proof lies with the tribe to establish by clear and convincing evidence that the allegations raised in the minor in need of care petition are true and that the best interests of the child will be served by continued court jurisdiction.

(b) Following trial, the Court will either find the minor in need of care or dismiss the petition, unless the hearing shall be continued to a date certain to allow for the presentation of further evidence. If the Court finds the minor in need of care it may:

(1) find out of home placement unnecessary but continue court intervention and supervision as appropriate;

(2) provided that the grounds for continuing removal under this chapter are met, order that the child remain out of the home absent a specific court order; or

(3) find out-of-home placement necessary, but that with the accomplishment of specified actions by the parent(s), guardian or custodian, order a subsequent review hearing to determine if the child should be returned to his home.

(4) issue any other order the Court deems appropriate including, but not limited to the parent(s)/guardian/custodian’s responsibility for child support and/or drug/alcohol/psychological treatment costs. (Added 6/22/99)

(c) In any case in which the Court determines that a child may be returned home either immediately or some time in the future, it will specify appropriate actions, and the time frames for such actions, that the parent(s), guardians, or custodians must accomplish before the child is returned. The order will also specify the responsibilities of any support agency or personnel to be involved.

§ 5-1-18 Default Judgment

If the parent(s), guardian or custodian fail to appear for the trial, the Court may find such party in default, and enter an appropriate order. Prior to finding a party in default, the Court must be satisfied that reasonable steps have been taken to notify such party of the trial.

§ 5-1-19 Review Hearings

(a) In the event a minor is found to be in need of care, the Court shall hold a review hearing within six (6) months of the trial to determine if continued court intervention and supervision is necessary. As long as court intervention continues, the Court shall hold a review hearing every six (6) months.

(b) If continued court intervention is determined to be necessary, the Court shall set forth in a written order:

(1) certification that reasonable efforts have been made to reunite the family but sufficient grounds exist to continue out of home placement; and

(2) if applicable, appropriate placement, treatment, counseling or other requirements for the next review period.

§ 5-1-20 Grounds for Continuing Removal

Sufficient grounds for continuing removal from the home of a parent(s), guardian or custodian exists if there is a continued risk of harm because:

(a) a child has no parent(s), guardian or custodian available, willing and capable to care for him;

(b) the child has suffered, or is likely to suffer, a physical injury inflicted upon him by other than accidental means, which causes or creates a substantial risk of death, disfigurement or impairment of bodily functions;

(c) the child has not been provided with adequate food, clothing, shelter, medical care, education or supervision by his parent(s), guardian or custodian;

(d) the child has been sexually abused, molested or exploited;

(e) the child has committed delinquent acts as a result of parental or caretaker pressure, guidance or approval; or

(f) the child has been emotionally abused or neglected.

(g) The child has witnessed or is aware of continuing acts of domestic violence in the home. (Added 6/22/99)

TERMINATION OF PARENTAL RIGHTS

§ 5-1-21 Termination of Parental Rights

(a) The parent/child relationship may be terminated either voluntarily or involuntarily. No parental rights may be terminated unless a petition has first been filed, notice has been given, and a hearing held. Termination of the parent/child relationship shall be initiated by the filing of a petition by:

(1) the tribal prosecutor;

(2) a parent or other adoption petitioner, concurrent with an adoption petition;

(3) a parent, in accordance with the provisions for voluntary termination of his parental rights provided by this section.

(b) A petition seeking involuntary termination of the parent/child relationship must be based on the following grounds:

(1) the return of the child to the custody of the parent(s) is likely to result in serious physical or permanent emotional damage to the child;

(2) the party seeking termination of the parental rights will satisfy the Court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family and that these efforts have proved unsuccessful; and

(3) such efforts are unlikely to be successful in the future.

(c) Relinquishment of parental rights by voluntary termination shall be initiated by a petition signed by the parent(s) in the presence and with approval of the Court. Relinquishment shall not be accepted or acknowledged by the Court prior to ten (10) days after birth of the child. The Court shall ensure that the parent(s) understand the consequences of the voluntary termination prior to approving it. A parent who wishes to relinquish his parental rights shall be provided an interpreter if he does not understand English.

(d) A petition for termination of parental rights whether voluntary or involuntary shall include to the best information and belief of the petitioner:

(1) full name, sex, date and place of birth, residence and tribal affiliation of the child;

(2) basis for the Court's jurisdiction;

(3) names, addresses, tribal affiliation, and dates of birth of the child's parents;

(4) the name and address of the person or agency having legal or temporary custody of the child;

(5) the grounds on which the termination is sought;

(6) the signature of the petitioner and the date signed.

(e) When any of the facts required by this section are unknown, the petition shall so state. After a petition for the involuntary termination of parental rights has been filed, the Court shall set the time and place for hearing.

(f) If the parental rights are terminated:

(1) all rights, powers, privileges, immunities, duties and obligations including any rights to custody, control visitation or support existing between the child and parent shall be terminated unless otherwise directed by the Court or this section;

(2) the parent(s) shall have no standing to appear at any future legal proceeding concerning the child;

(3) any support obligation accrued prior to the effective date of the order terminating parental rights shall not be terminated;

(4) the rights of one parent may be terminated without affecting the rights of the other parent;

(5) a termination order shall not prevent a child from inheriting property or interest in the same manner as any other natural child from the natural parent. A natural parent may not, however, inherit from a natural child after termination;

(6) the child shall not be disentitled to any benefit due the child from any non-parental third person, agencies, state or the United States;

(7) any rights the child derives from the child's descent from a member of a federally recognized Indian tribe shall not be affected;

(8) if no person having parental rights remains, the child shall be committed to the custody of the Tribal Court for the purpose of placing the child for adoption. In the absence of an adoptive home, the child may be placed in a licensed foster home, with a relative or other suitable placement. The Court shall retain jurisdiction concerning the adoption of the child, the marriage of the child, the enlistment of the child in the armed forces of the United States, and consent to such matters as might normally be required of the child's parent.

(g) If a child has not been adopted or placed as provided by this section, within six (6) months of the termination order, the Court will hold another six (6) month review hearing. Such hearings will continue every six (6) months thereafter until the child is adopted or placed.

FOSTER HOMES

§ 5-1-22 Foster Homes in General

(a) If a child cannot be returned home, the Court may use the following preferences in placing the child subject to the requirements of subsection (b):

(1) members of the child's or parents' extended family;

(2) persons recommended by the child's parent's who qualify for foster home licensing;

(3) the licensed foster home of an Indian family of the same tribe as the child;

(4) the licensed foster home of an Indian family including that of a different tribe;

(5) the licensed foster home of any other family which can provide a suitable home for the child.

(b) The Court shall place the child in the least restrictive setting which most approximates a family, is within reasonable proximity to his home and in which his special needs, if any, are met. In addition, the placement of a child shall be conducted with the best interest of the child in mind including the consideration of:

(1) the wishes of the, child and/or the child's parent(s);

(2) the child's adjustment to a new home, school or community;

(3) the mental and physical health of the child; and

(4) the need to promote continuity and stability in the life of the child.

§ 5-1-23 Foster Home Licensing Procedures

(a) The case worker shall accept applications for foster homes either on or off the Nez Perce Reservation. The case worker shall make or cause to be made a complete investigation and determine, within ninety (90) days of receiving the application, whether to issue a license to the foster home authorizing it to accept minors in need of care. In addition, the case worker may, upon twenty-four (24) hours' notice, inspect a licensed foster home at any time. The case worker may examine not only the potential applicants, but also any other person who is familiar with the applicants and is familiar with the type of care they provide to children in their care, if any. In order to obtain and retain a license, a foster home must meet the following conditions:

(1) the foster parent(s) must maintain the child's mental and physical health and the foster home must be constructed, arranged and maintained to this end;

(2) members of the household must be in such physical and mental health so as not to adversely effect either the health of the child or the quality of his care;

(3) a foster home shall not be licensed whenever any member of the household is on parole or probation or under house arrest;

(4) members of the household must never have been convicted of a sex offense and may not have any felony convictions. Exceptions concerning non-sexual felony convictions may be made upon a substantial showing of mitigating factors;

(5) the foster parent(s) must have an income sufficient to care for all individuals in the foster home. The case worker may take into account any foster care stipend when determining the financial ability of the foster care parent(s);

(6) the foster parent(s) shall not subject the child to verbal abuse, derogatory remarks or threats to expel the child from the foster home. No child shall be deprived of meals, mail or family visits as a method of discipline. When discipline or punishment must be administered, it shall be done with understanding and reason.

(b) Any license issued shall apply only to the residence(s) where the applicant is living at the time application for a license is made but shall include a provision allowing the licensee to conduct a permanent change of residence upon inspection and approval of the new residence in accordance with this section.

(1) whenever a change of residence is contemplated;

(2) within 48 hours whenever a change in the household occurs such as one of the foster care parents is convicted or accused of a major crime or if one of the foster parents moves out of the residence, or if any other person moves into the residence.

(d) Following a hearing on the record in accordance with the administrative procedures provided by this code, an order to revoke a foster home license may be issued if the home at any time does not meet the conditions listed in this section or the foster care licensee is otherwise in violation of this chapter.

§ 5-1-24 Medical Needs

In case of sickness or accident to a foster child, immediate notice shall be given to the case worker. Foster parent(s) or other persons with whom a child is placed may consent to surgery or other treatment in a medical emergency unless otherwise ordered by the Court.

PARENTAGE AND SUPPORT

§ 5-1-25 Establishment of Parentage and/or Support

(a) Unless determined otherwise by court order, a child's parents are jointly and severably liable for his support until he reaches eighteen (18) years of age or is emancipated notwithstanding the fact that the parents have never been married to each other.

(b) The parentage of a child may be established by:

(1) written acknowledgment by a parent filed with the Tribal Court that he is the father or she is the mother of the child; or

(2) a determination by the Tribal Court.

§ 5-1-26 Hearing

(a) A hearing to establish parentage and/or support may be brought by a complaining parent, by the minor acting through a custodian or guardian if the complainant dies or becomes disabled, or by the tribe. The petition shall name the respondent as the father or mother of the minor and if a petition to compel support, demand that such person be compelled to support the minor.

(b) A hearing to establish parentage may be brought in Tribal Court at any time before the child is eighteen (18) years and may be started before the birth of the child, but, unless the alleged father consents, trial will not be held until at least 15 days after the birth of the child. A hearing on whether to compel support from a parent may be brought in Tribal Court at any time until a child reaches the age of eighteen (18) or becomes an adult through emancipation or marriage.

(c) The Court shall enter its order determining the child's parentage and/or support at the conclusion of the hearing. If parentage is established, the child has the same rights of inheritance from the person who is established as a parent that a child born as a result of a lawful marriage has under tribal law.

§ 5-1-27 Procedure for Support Payment

Unless otherwise ordered by the Court, all court ordered payments for child support shall be paid to the Clerk of Court who shall record and transfer the payments to the person(s) entitled to them.

ADOPTIONS

§ 5-1-28 Adoptions in General

The purpose of adoptions shall be to give the adoptee a permanent home. Adoptions may be "open" or "closed" as ordered by the Court upon stipulation by the parties or in the best interest of the child.

§ 5-1-29 The Petition

(a) An adoption petition shall be filed with the juvenile court by the person proposing to adopt. A husband and wife who live together, shall file a joint petition except that a person who is already the natural or adopted parent of the proposed adoptee shall not be required to join in the petition. Only one petition shall be required for the adoption of all or any combination of siblings, provided that each sibling to be adopted is named in the petition.

(b) The petition for adoption shall include the following, to the best information and belief of the petitioner:

(1) the full name, address, and tribal affiliation of the petitioner;

(2) the full name, sex, residence, date and place of birth, and tribal affiliation of the proposed adoptee(s);

(3) the name by which the proposed adoptee shall be known if the petition is granted;

(4) the basis for the Court's jurisdiction;

(5) if the proposed adoptee is a child, a full description and statement of value of all property owned, possessed or in which the child has an interest;

(6) the relationship of the petitioner to the proposed adoptee;

(7) the names and addresses of any person or agency whose consent to the adoption is necessary; and

(8) the signature of the petitioner, date of signing, and notarization or witness by the clerk of the Court.

(c) When a petition for the adoption of a child is filed, the Court shall immediately request that a case worker or qualified agency submit to the Court within ten (10) business days a home study on the petitioner and report which shall contain:

(1) the circumstance of the home and the petitioner and his ability, both physically and mentally, to assume the responsibilities of a parent of the child;

(2) other pertinent information designed to assist the Court in determining the best placement for the child; and

(3) whether or not the home most closely resembles that of the child's culture, identity, and where applicable, his tribal affiliation.

The Court may order additional home studies or reports as it deems necessary.

§ 5-1-30 Hearing

(a) An adoption hearing shall be held by the Court within ninety (90) days of receipt of an adoption petition to determine if it is in the best interests of the child to be adopted by the petitioners. To this end, the Court shall consider the:

(1) validity of written consent;

(2) termination of parental rights order;

(3) length of time of the child's wardship by the Court;

(4) special conditions of the child;

(5) the adoptive parents' ability to protect the health and welfare of the child; and

(6) required home studies or other reports.

(b) During an adoption hearing:

(1) the petitioner and the proposed adoptee shall appear personally;

(2) the judge shall examine all persons separately, and may:

(A) enter a final decree of adoption, or place the person to be adopted, if a child, in the legal custody of the petitioner for a period not to exceed six (6) months prior to entering a final decree of adoption;

(B) deny the petition and make any other order it deems necessary for the care and custody of the child not inconsistent with this chapter if it determines that the adoption will not be in the child's best interest, or that all of the requirements of this section have not been met.

(3) the proceedings for termination of the parent/child relationship and proceedings for adoption may be consolidated and determined together.

§ 5-1-31 Consent

(a) Written consent to an adoption which shall be orally acknowledged before the Court no earlier than ten (10) days after the child's birth is required of:

(1) the biological and adoptive mother;

(2) the biological and adoptive father;

(3) the custodian, if empowered by the Court to consent;

(4) the Court, if the custodian is not empowered to consent.

(b) Consent of the parent to an adoption is not required if the:

(1) parent has abandoned his child;

(2) parent's rights have been terminated;

(3) parent has relinquished his parental rights;

(4) parent has been declared incompetent.

(c) An interpreter shall be provided if the person consenting does not understand English. Oral consent of the child to be adopted shall be made either in open court, or in chambers with only the judge, any other person he deems necessary, and the child present.

(d) Without reason or the need for a hearing, consent under this section may be withdrawn in a writing notarized or witnessed by a clerk of the Court by the person consenting at any time prior to the entry of a final decree of adoption.

§ 5-1-32 Decrees

(a) If the Court finds that the requirements of this section have been met and that the child's best interests will be served, it shall enter a final decree of adoption containing the following:

(1) the adoptive parent(s) and adoptive child shall be treated under the law as if the relationship was that of a natural child and parent, except as set forth herein;

(A) in the case of open adoptions the adoptive child:

(i) shall have an absolute right, absent a convincing and compelling reason to the contrary, to information and knowledge about his natural family and his tribal heritage;

(ii) members of the child's natural extended family (including parents) shall have a right of visitation subject to reasonable controls of the adoptive parents.

(B) in the case of closed adoptions, the adoptive child shall be denied access to identifying information and knowledge about his natural family except as agreed to by the parties or ordered by the Court.

(2) adoption shall not necessarily serve to prevent an adoptive child from inheriting from a natural parent in the same manner as any other natural child. An adoptive child shall be entitled to inherit from adoptive parents, and vice versa, in the same manner as if natural parents and child.

§ 5-1-33 Orders of Preference

(a) The Court may place an adopted child in the following order of preference subject to the requirements of subsection (b):

(1) extended family member;

(2) a tribal member or person eligible for tribal membership;

(3) other Indian person(s); and

(4) any person who has significant knowledge of the child's tribal affiliation and his special needs.

(b) The placement of a child shall be conducted with the best interest of the child in mind including the consideration of:

(1) the wishes of the, child and/or the child's parent(s);

(2) the child's adjustment to a new home, school or community;

(3) the mental and physical health of the child; and

(4) the need to promote continuity and stability in the life of the child.

§ 5-1-34 Vacating the Decree

A decree of adoption may be vacated within two (2) years after entry upon the filing of a petition and a showing that consent making the adoption possible was obtained through fraud or duress. If the Court vacates the decree it shall return the adopted person to that status he had prior to entry of the decree.

ESTABLISHING PATERNITY (§§ 5-1-42 - 5-1-63 adopted by NPTEC 7/8/03)

§ 5-1-40 Establishment of Parentage and/or Support (formerly § 5-1-25, renumbering authorized by NPTEC 7/8/03)

(b) The parentage of a child may be established by:

(1) written acknowledgment by a parent filed with the Tribal Court that he is the father or she is the mother of the child; or

(2) a determination by the Tribal Court.

§ 5-1-41 Hearing (formerly § 5-1-26, renumbering authorized by NPTEC 7/8/03)

§ 5-1-42 Genetic Testing

(a) In any proceeding in which paternity is an issue, the court, upon motion of any party or the Tribe, may order the mother, her child, and the putative father or the husband of the mother to submit to one or more blood, buccal cells, human leukocyte antigen tests, DNA tests, or other court-recognized scientific testing, to be made by a qualified physician, accredited laboratory (as defined by the American Association of Blood Banks (AABB), the American Society for Histocompatibility and immunogenetics (ASHI) or by the federal Secretary of Health and Human Services), hospital, or other qualified person acceptable to the court, to determine whether the putative father or the husband of the mother can be excluded as being the father of the child or whether paternity can be determined.

(b) The minimum percentage to identify a biological father shall be 99%.

(c) The court may order additional tests to be performed, as necessary, to determine whether the putative father or husband can be excluded or whether the putative father or husband is the father of the child.

(d) If a specimen from the mother of a child is not available for genetic testing, the court may order genetic testing to proceed without a specimen from the mother.

(e) The costs of the initial genetic testing shall be chargeable to:

(1) a support-enforcement agency in a proceeding in which the support-enforcement agency is providing services. The support-enforcement agency may seek reimbursement from a man who is rebuttably identified as the father;

(2) by the individual who made the request;

(3) as agreed by the parties; or

(4) as ordered by the court.

§ 5-1-43 Genetic Testing Results; Rebuttal

(a) Under this Chapter, a man is rebuttably identified as the father of a child if the genetic testing complies with § 5-1-42 and the results disclose that:

(1) the man has at least a 99 percent probability of paternity, using a prior probability of 0.50, as calculated by using the combined paternity index obtained in the testing; and

(2) a combined paternity index of at least 100 to 1.

(b) A man identified under subsection (a) as the father of child may rebut the genetic testing results only by other genetic testing satisfying the requirements of § 5-1-42 which:

(1) excludes the man as a genetic father of the child; or

(2) identifies another man as the possible father of the child.

(c) Except as otherwise provided in § 5-1-45, if more than one man is identified by genetic testing as the possible father of the child, the court shall order them to submit to further genetic testing to identify the genetic father.

§ 5-1-44 Additional Genetic Testing

The court or the support-enforcement agency shall order additional genetic testing upon the request of a party who contests the result of the original testing. If the previous genetic testing identified a man as the father of the child under § 5-1-43, the court or agency may not order additional testing unless the party provides advance payment for the testing.

§ 5-1-45 Identical Brothers

(a) The court may order genetic testing of a brother of a man identified as the father of a child if the man is commonly believed to have an identical brother and evidence suggests that the brother may be the genetic father of the child.

(b) If each brother satisfies the requirements as the identified father of the child under § 5-1-43 without consideration of another identical brother being identified as the father of the child, the court may rely on nongenetic evidence to adjudicate which brother is the father of the child.

§ 5-1-46 Confidentiality of Genetic Testing

(a) Release of the report of genetic testing for parentage is controlled by the applicable law.

(b) An individual who intentionally releases an identifiable specimen of another individual for any purpose other than that relevant to the proceeding regarding parentage without a court order or written permission of the individual who furnished the specimen commits a civil infraction.

§ 5-1-47 Presumption of Paternity

A rebuttal presumption of paternity exists where one or more of the following factors is present:

(a) The child is born during the marriage of the parties or within 300 days of the termination of marriage;

(b) The child is born to parties who attempted to marry but whose marriage is or could be declared void;

(c) The child is born to parties who have married or attempted to marry after the child’s birth and the putative father has acknowledged paternity in writing, consented to be named as father on the child’s birth certificate, or been ordered to pay child support;

(d) The putative father has openly held out the child as his natural child; or

(e) The putative father has signed a written acknowledgment of paternity.

§ 5-1-48 Judgment and Order of the Court

(a) If the putative father is found to be the biological father of the child, or if the presumption of paternity cannot be rebutted, the court shall make an Order of Paternity.

(b) The court may order the father of the child to stand charged with the support and maintenance of such child, with the assistance of the mother is she is financially able.

VOLUNTARY ACKNOWLEDGMENT OF PATERNITY

The mother of a child and a man claiming to be the father of the child conceived as the result of his sexual intercourse with the mother may sign an acknowledgment of paternity with intent to establish the man’s paternity.

§ 5-1-49 Acknowledgment of Paternity

(a) In lieu of or in conclusion of a paternity proceeding, the written acknowledgment of paternity executed by the putative father of the child when accompanied by an attested waiver of the right to a hearing, and a written affirmation of paternity executed and sworn or affirmed to by the mother of the child and filed with the court, shall have the same force and effect as a judgment of the court. The written affirmation must state that the child whose paternity is being acknowledged:

(1) does not have a presumed father, or has a presumed father whose full name is stated; and

(2) does not have another acknowledged or adjudicated father;

(b) An acknowledgment of paternity must state:

(1) whether there has been genetic testing and , if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing;

(2) that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after two (2) years.

§ 5-1-50 Denial of Paternity

A presumed father may sign a denial of his paternity. The denial is valid only if:

(a) an acknowledgment of paternity signed, or otherwise authenticated, by another man is filed pursuant to 5-1-51;

(b) the denial is in a record, and is signed, or otherwise authenticated, under penalty of perjury; and

(c) the presumed father has not previously:

(1) acknowledged his paternity, unless the previous acknowledgment has been rescinded pursuant to § 5-1-53 or successfully challenged pursuant to § 5-1-54; or

(2) been adjudicated to be the father of the child.

§ 5-1-51 Rules for Acknowledgment and Denial of Paternity

(a) An acknowledgment of paternity and a denial of paternity may be contained in a single document or may be signed in counterparts, and may be filed separately or simultaneously. If the acknowledgment and denial are both necessary, neither is valid until both are filed.

(b) An acknowledgment of paternity or a denial of paternity may be signed before the birth of the child.

(c) Subject to subsection (a), an acknowledgment of paternity or denial of paternity takes effect on the birth of the child or the filing of the document with the Idaho Bureau of Health Policy and Vital Statistics, whichever occurs later.

(d) An acknowledgment of paternity or denial of paternity signed by a minor is valid if it is otherwise in compliance with this Chapter.

§ 5-1-52 Effect of Acknowledgment or Denial of Paternity

(a) Except as otherwise provided in § 5-1-53 and § 5-1-54, a valid acknowledgment of paternity filed with the Idaho Bureau of Health Policy and Vital Statistics is equivalent to an adjudication of paternity of a child and confers upon the acknowledged father all of the rights and duties of a parent.

(b) Except as otherwise provided in § 5-1-53 and § 5-1-54, a valid denial of paternity by a presumed father filed with the Idaho Bureau of Health Policy and Vital Statistics in conjunction with a valid acknowledgment of paternity is equivalent to an adjudication of the nonpaternity of the presumed father discharges the presumed father from all rights and duties of a parent.

§ 5-1-53 Proceeding for Rescission

A signatory may rescind an acknowledgment of paternity or denial of paternity by commencing a proceeding to rescind before the earlier of:

(a) 60 days after the effective date of the acknowledgment or denial, as provided in § 5-1-51; or

(b) the date of the first hearing, in a proceeding to which the signatory is a party, before a court to adjudicate an issue relating to the child, including a proceeding that establishes support.

§ 5-1-54 Challenge After Expiration of Period for Rescission

(a) After the period for rescission under § 5-1-53 has expired, a signatory of an acknowledgment of paternity or denial of paternity may commence a proceeding to challenge the acknowledgment or denial only;

(1) on the basis of fraud, duress, or material mistake of fact; and

(2) within two (2) years after the acknowledgment or denial is filed with the Idaho Bureau of Health Policy and Vital Statistics.

(b) A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.

§ 5-1-55 Procedure for Rescission or Challenge

(a) Every signatory to an acknowledgment of paternity and any related denial paternity must be made a party to a proceeding to rescind or challenge the acknowledgment or denial.

(b) For the purpose of rescission of, or challenge to, an acknowledgment of paternity or denial of paternity, a signatory submits to personal jurisdiction of the Nez Perce Tribe by signing the acknowledgment or denial, effective upon the filing of the document with the Idaho Bureau of Health Policy and Vital Statistics.

(c) Except for good cause shown, during the pendency of a proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity, the court may not suspend the legal responsibilities of a signatory arising from the acknowledgment, including the duty to pay child support.

(d) A proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under this Chapter.

(e) At the conclusion of a proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity, the court shall forward the order to the Idaho Bureau of Health Policy and Vital Statistics requesting to amend the birth record of the child, if appropriate.

§ 5-1-56 Ratification Barred

The court conducting a judicial proceeding is not required or permitted to ratify an unchallenged acknowledgment of paternity.

§ 5-1-57 Full Faith and Credit

The Nez Perce Tribal Court shall give full faith and credit to an acknowledgment of paternity or denial of paternity effective in another tribal or state court if the acknowledgment or denial has been signed and is otherwise in compliance with the law of the other tribe or state.

§ 5-1-58 Forms for Acknowledgment and Denial of Paternity

(a) To facilitate compliance with this Chapter, the CSEP shall prescribe forms for the acknowledgment paternity and the denial of paternity.

(b) A valid acknowledgment of paternity or denial of paternity is not affected by a later modification of the prescribed form.

§ 5-1-59 Release of Information

The CSEP may release information relating to the acknowledgment of paternity or denial of paternity to a signatory of the acknowledgment or denial and to courts and appropriate tribal, state or federal agencies.

§ 5-1-60 Adoption of Rules

The CSEP may adopt rules to implement this Chapter, to be approved by the Nez Perce Tribal Executive Committee.

SUPPORT

§ 5-1-61 Procedure for Support Payment

Unless otherwise ordered by the Court, all court ordered payments for child support shall be paid to the Clerk of Court who shall record and transfer the payments to the person(s) entitled to them.

§ 5-1-62 Voluntary Support Agreement

A voluntary agreement by the father to provide support and maintenance for the child, to reimburse any past due support, and to pay any reasonable expense of prosecution, shall have the same force and effect as an order of support by the Court.

§ 5-1-63 Registration and Enforcement of Foreign Paternity Judgments

(a) Any party to an action in which a paternity or support judgment from the State of Idaho or the State of Washington was rendered may register the foreign paternity or support judgement in the Nez Perce Tribal Court without payment of a filing fee or other cost to the party and according to the terms of the inter-governmental agreements between the Nez Perce Tribe and such States.

Chapter 5-2 - Guardianships

INTRODUCTORY PROVISIONS

§ 5-2-1 Definitions

(a) "Child or minor" means any person under the age of eighteen (18).

(b) "Competent" means any person who is not incapacitated.

(c) "Guardian ad litem" means a guardian who is appointed to represent a ward for the purpose of actual, threatened or contemplated litigation.

(d) "Estate" means the total property of any kind owned by a deceased person prior to the distribution of that property in accordance with the terms of a will, or, when there is no will, by the laws of inheritance in the state of domicile of the deceased.

(e) "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication or other cause to the extent that he lacks sufficient understanding or ability to make or communicate responsible decisions concerning his person or property.

(f) "Ward" means a child or incapacitated person for whom a guardian is appointed or other protective order is made.

§ 5-2-2 Guardianships in General

The Nez Perce Tribal Court may appoint guardians for the persons and/or the estates of either minors or incapacitated persons.

§ 5-2-3 Appointment of Guardian in Connection With Probating an Estate

In the process of administering an estate for which there is a valid will containing a designation of a guardian for a child orphaned by the deceased, the Court may appoint such guardian without the necessity of a separate guardianship hearing. If the person so designated is unable or unwilling to serve, if such person's appointment is objected to by the orphaned child if he is over fourteen (14) years of age, or if the Court deems it to be in the minor's best interest, a separate guardianship hearing shall be held.

§ 5-2-4 Who may Serve as Guardian

Any person twenty one (21) years of age or older may serve as a guardian. The Court shall determine the best interest of the proposed ward in appointing a guardian but preference may be given to:

(a) relatives of the proposed ward in order of their closeness of relationship;

(b) a person with whom the proposed ward is living at the time of the filing of the guardianship petition; or

(c) the person preferred by a proposed ward if such ward is over fourteen (14) years of age and competent.

§ 5-2-5 Placement of Children (amended by NPTEC 3/25/03)

If the child(ren) is a ward of the Court, the Court shall place him in the setting which most meets his/her needs (emotionally, physically, culturally specific, spiritually) and in which his special needs, if any, are most likely to be met. In addition, the placement of a child(ren) shall be based upon the best interest of the child(ren) including the consideration of:

(a) the wishes of the child(ren) and the child(ren)'s parent(s);

(b) the child(ren)'s adjustment to a new home, school or community;

(c) the mental and physical health of the child(ren);

(d) continuity and stability in the life of the child(ren); and

(e) a child(ren) shall not be placed in a home where individuals reside or may reside who are convicted sex offenders.

§ 5-2-6 Powers and Duties of Guardian

(a) A guardian:

(1) shall take or provide for the custody of the person of the ward and shall be required to care for the health, safety and welfare of such ward and provide for their education and medical care as needed or appropriate;

(2) may expend such portions of the ward's estate, income and the principle as he shall deem reasonably necessary for the support, care, including medical care and education, of the ward given the size and nature of the estate and the station in life or needs of the ward; and

(3) may invest, manage and dispose of specified portions or all of the property of the ward according to law and in a prudent and reasonable manner.

(b) If a guardian is uncertain as to his authority he may petition the Court for authority to do the act in question. The Court may grant such authority if it appears to be consistent with the best interest of the ward following such notice and hearing, if any, as the Court may direct.

(1) have a fiduciary relationship towards the ward;

(2) exercise a high degree of care in managing the estate of his ward;

(3) derive no personal benefit of any kind from his management of the estate of his ward; and

(4) be civilly liable to the ward for any losses to the estate attributable to a violation of this chapter. Action to enforce such liability may be brought by the ward or a subsequently appointed guardian on behalf of the ward within two years after: the appointment of a new guardian; the removal of the ward's incapacity; or the ward attains the age of eighteen (18).

(d) A violation of this chapter by an appointed guardian may constitute contempt of court and/or result in the discharge of the guardian.

§ 5-2-7 Powers and Duties of Guardian Ad Litem

(a) A guardian ad litem shall have a fiduciary relationship towards the ward and shall have the power and authority to:

(1) represent a ward's best interests in actual, threatened or contemplated litigation or other proceedings of a legal nature (other than of a criminal nature or regarding a delinquent act); and

(2) employ counsel, and settle or compromise claims subject to the approval of the Court.

(b) The Court may appoint a guardian ad litem without the necessity of a petition or hearing.

§ 5-2-8 Guardians Reimbursement

The Court may order monthly reimbursement payments to the person appointed as a guardian, provided sufficient funds are available. Such disbursements shall be used for the sole purpose of covering expenses incurred in the care and custody of the ward.

TYPES OF GUARDIANSHIPS

§ 5-2-9 Guardianship of Children

After a hearing upon the filing of a guardianship petition, the Court may appoint a guardian for a child. Guardianship for a child may provide custody of a child to someone other than the parent(s), although there is no termination of the parental rights. The parent(s) and the child's extended family may be granted visitation rights during a guardianship.

§ 5-2-10 Guardianship of Incapacitated Persons

If after a guardianship hearing, the Court determines that the prospective ward is incapacitated, it shall appoint a guardian for such person. The proof at hearing shall include the certification by a qualified physician showing that a person is incapacitated, the anticipated duration of the incapacity and that the best interests of the incapacitated person will be served by the appointment of a guardian.

§ 5-2-11 Guardianship of Property

The Court may require any guardian before taking and receiving into custody the money or funds of a ward, to provide security in the form of a bond in such sum as the Court shall order. Such bond shall be returned upon termination of the guardianship on the condition that the guardian:

(a) submits to the Court an accounting of:

(1) the property, estate and money of the ward and all the proceeds or interests derived therefore, at such times as the Court may order; and

(2) the management and disposition of the property, estate money, proceeds and interest of the ward within three (3) months of his appointment and every three (3) months thereafter.

(b) faithfully discharges his guardianship duties;

(c) at the expiration of his trust, justifies his accounts with the Court and the ward if the ward is of full age or regains competency, or the ward's legal representative, and pays over and delivers all the estate, monies and effects remaining in his possession.

§ 5-2-12 Temporary Guardianship

Upon petition, the Court may appoint a temporary guardian when it determines such to be in the best interest of the ward and under such terms and conditions as it sets forth in a written order.

PROCEEDINGS

§ 5-2-13 Guardianship Petition

(a) A guardianship proceeding shall be initiated by the filing of a petition by the proposed guardian or the case worker. The Court may initiate proceedings to appoint a guardian itself if such appointment reasonably appears necessary and no other person has filed a petition.

(b) A petition shall include:

(1) the full name, sex, date and place of birth, residence and tribal affiliation if any, of the proposed ward and guardian;

(2) the basis for the Court's jurisdiction;

(3) the relationship, if any of the proposed guardian to the proposed ward;

(4) the name and address of the person or agency having legal or temporary custody of the proposed ward;

(5) whether the guardianship is a guardian ad litem, a temporary guardianship, a guardianship of a child or children, a guardianship of an incapacitated person or persons and/or a guardianship of property;

(6) the present conditions and circumstances which warrant the appointment of a guardian;

(7) a full description and statement of the value of all property owned, possessed, or in which the proposed ward has an interest, if known; and

(8) the signature of the petitioner.

§ 5-2-14 Parties

The parties to a guardianship proceeding shall include the:

(a) proposed guardian;

(b) proposed ward;

(c) guardian at litem, if any;

(d) legal custodian of the ward, if any; and

(e) parents of a proposed minor ward.

§ 5-2-15 Guardianship Report

Upon the filing of a guardianship petition, the Court may request that a qualified individual produce a guardianship report. The report shall contain all pertinent information necessary to assist the Court in determining the best interests of the proposed ward.

§ 5-2-16 Hearings

During a guardianship hearing:

(a) the Court shall advise the parties of the reason for the proceedings and that each has a right to:

(1) be represented by an attorney at their own expense in all proceedings under this chapter;

(2) introduce evidence;

(3) be heard on their own behalf; and

(4) examine witnesses;

(b) the general public shall be excluded from the proceedings and the Court shall be authorized to further limit hearing attendance to only the parties, their counsel and witnesses during the time of their testimony; and:

(c) the Court shall issue an order which may:

(1) appoint a guardian and:

(A) set forth the guardian's authority and the duration of the guardianship; and

(B) direct the Court clerk to issue to the appointed guardian a certified copy of a letter of guardianship which shall evidence such appointment and contain any limitations of the authority of the guardian;

(2) determine that the guardianship is not warranted and dismiss the petition or request for guardianship;

(3) issue other appropriate directives in accordance with this chapter.

§ 5-2-17 Discharge of Guardianship

(a) A guardian of a child or the child himself who is not otherwise incapacitated, may petition the Court on or after the date the child reaches the age of eighteen (18) to have the guardian discharged and the estate turned over to the child.

(b) A person who has been declared incapacitated, the guardian of such person, any relative of such person within the third degree or any friend, may petition the Court in which the person was declared incapacitated, to restore him to competency. At the hearing, witnesses shall be examined and a determination made as to whether the incapacitated person is of sound mind and capable of taking care of himself and his property. The proof at hearing shall include the certification by a qualified physician showing that the incapacitated person has been sufficiently restored to competency. If so, such person shall be restored to capacity and the guardianship of such person, if he is not a child, shall be discharged.