Nisqually Tribal Code, Title 50

TITLE 50 - YOUTH

SUBCHAPTER I - NISQUALLY YOUTH CODE

Section 50.01 - Purpose and Construction

50.01.01 Purpose

The Nisqually Indian Tribe recognizes that its children are its most important resource and their welfare is of paramount concern to the Nisqually Indian Community. It is essential that the young Indian people of the Nisqually Indian Community receive care and guidance in their own homes, whenever possible, and that their identity and pride as Native Americans always be protected and preserved. Therefore, this Subchapter shall be interpreted and understood to accomplish the following tribal objectives:

(a) To provide for the care, protection and development of Nisqually children;

(b) To ensure that Nisqually children receive assistance and guidance in their own homes whenever possible and separating the children from their parents only when necessary for the children's protection;

(c) To discourage delinquent acts and to protect the Tribe's interest by providing supervision, care and rehabilitation;

(d) To provide a simple procedure for addressing and resolving conflict involving Indian children that is reflective of tribal traditions as well as the prevailing community standards and which affords all affected persons a fair and impartial hearing consistent with individual rights; and,

(e) To ensure that off-reservation courts will be able to return Nisqually children to the Tribe for care and guidance.

Historical and Statutory Notes

1. This Title originally enacted April 26, 2000.

2. The word "Code" changed to "Subchapter" where context required throughout this Title to achieve consistency with the 2003 Tribal Code Formatting Amendments.

50.01.02 Construction

This Subchapter is exempted from the rule of strict construction. It shall be read and understood in a manner that gives full effect to the purposes stated in subsection 50.01.01.

Historical and Statutory Notes

The word "subsection" added during 2003 Tribal Code Formatting Amendments as the word had been previously omitted.

50.01.03 Application of Tribal Law or Custom

Whenever there is uncertainty or a question as to the interpretation of certain provisions of this Subchapter, tribal law or custom shall be controlling, and where appropriate, may be based on the written or oral testimony of a qualified tribal elder, tribal historian or other tribal representative.

50.01.04 Sovereign Immunity

The sovereign immunity of the Nisqually Indian Tribe shall in no manner be waived by this Subchapter. The employees, appointees, and volunteers of the Nisqually Indian Child Welfare Department (ICW) and all other Nisqually social and governmental services are cloaked with the sovereign immunity of the Nisqually Indian Tribe and are not liable for the inability or failure to provide services to any person.

50.01.05 Severability

If any provision or application of this Subchapter is determined by review to be invalid, such determination does not render such provision inapplicable to other persons or other circumstances nor invalidate any other provisions of this Subchapter.

50.01.06 Repealer

This Subchapter is to be interpreted to supersede and replace all prior provisions of Title 10 of the Nisqually Tribal Code and any other conflicting laws, rules or regulations of the Nisqually Indian Tribe.

Historical and Statutory Notes

The words "Law and Order" changed to "Tribal" in 2003 Tribal Code Formatting Amendments.

Section 50.02 - Definitions

50.02.01 Definitions

For the purposes of this Subchapter unless otherwise expressly provided, the following definitions shall apply:

(a) Abandon -When a parent leaves a child without adequate communication, or fails to support a child, or the parent has indicated an unwillingness to assume his/ her parental responsibilities.

(b) Adult -A person eighteen (18) years of age or older, or a person otherwise emancipated.

(c) Child -Any person under the age of eighteen (18) years.

(d) Child Advocate -Any person appointed by the Nisqually Tribal Court, or any other court of competent jurisdiction, to represent the interests of a child in any legal proceeding.

(e) Court -The Nisqually Tribal Court.

(f) Custodian -A person or agency, other than a parent or guardian, who has temporary physical care, custody and control of a child.

(g) Custody -All and exclusive parental rights including, but not limited to, the right to choose the child's residence, education, religious training, association or visitation with others; and the right to consent to medical treatment, military service, and marriage.

(h) Delinquent Act -Any act or omission by a child which would be a crime under the laws of the Nisqually Tribe.

(i) Domicile/ Residence -The determination of domicile and residence shall be in accordance with tribal law and custom. In the absence of other factors clearly demonstrating an intent to establish a permanent home off Nisqually Tribal lands, a child's domicile/ residence shall be deemed within Nisqually Tribal lands. Periods of time spent off Nisqually Tribal lands for purposes of education, employment, health, or other similar reasons do not affect domicile on the Tribal lands.

(j) Extended Family -To the extent consistent with tribal custom, a person who has reached the age of eighteen (18) years and who is the Indian child's grandparent, grand aunt or grand uncle, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, step-parent or any other person who is considered a family member under tribal law or custom.

(k) Guardian - A person other than a child's parent, who has been appointed by a court to undertake the legal responsibility of daily support and supervision of the child.

(l) Immediate Family - Any person who is the child's parent, grandparent, aunt or uncle.

(m) Indian Child - Any unmarried person under the age of eighteen (18) years who is:

(i) A member of a federally recognized Indian tribe, band or an Alaska Native village or corporation; or,

(ii) Eligible for membership in an Indian tribe or an Alaska Native village or corporation and is the biological child of an enrolled member.

(n) Parent - Includes a biological or adoptive parent, but does not include persons whose parental rights have been terminated, nor does it include the unwed father whose paternity has not been acknowledged or established.

(o) Temporary Custody - A custodian with temporary custody has limited rights with regard to the child. The custodian shall have physical custody and the right to consent to emergency medical, dental, and educational care only. A temporary custodian must seek the approval of the Court before exercising any other parental rights in regard to the child.

(p) Tribal Land - All land over which the Nisqually Indian Tribe may legally assert jurisdiction limited only by federal law and the Constitution of the Nisqually Indian Tribe.

(q) Truant - For the purposes of this Title, a child is considered truant when he or she has failed to meet the school attendance requirements of the Nisqually School Attendance Ordinance.

(r) Ward - Any child over whom the Tribal Court is asserting jurisdiction or respecting whom an action is pending in the Tribal Court.

Section 50.03 - Jurisdiction

50.03.01 Personal Jurisdiction

(a) The Court shall have jurisdiction over any proceeding which involves:

(i) Any Indian child who resides or is domiciled on Nisqually Tribal land; or,

(ii) Any child who is a member or is eligible for membership in the Nisqually Tribe, regardless of the child's residence or domicile; or,

(iii) Any child who has been placed in temporary care on Tribal land or in any care facility licensed or approved by the Tribe for placement of children, unless said child has been placed by a Court or social service agency having a written agreement to do so with the Tribe.

(b) The Court shall have jurisdiction over adults in aid of its powers under this Title to the fullest extent allowed by federal law and may make such orders as are necessary and in the best interests of the child.

(c) The Court shall have continuing jurisdiction over a child who is determined to be subject to this Title and shall have the power to modify previous orders, or entertain petitions based on new evidence concerning the child.

50.03.02 Subject Matter Jurisdiction

The Nisqually Court shall have jurisdiction over cases arising under this Title, cases arising under other laws of the Nisqually Indian Tribe providing for disposition by the Court, and any actions arising under the customs and traditions of the Nisqually Tribe affecting family and child welfare.

50.03.03 Jurisdictional Questions

The Court shall have the power to decide questions of jurisdiction which may be raised under this Title. The Nisqually Tribe intends to vest the Court with the fullest jurisdiction possible in order to protect the children and families of the Nisqually Tribe.

50.03.04 Recognition of Other Courts' Orders

The Court may give recognition to state and other tribal court orders relating to the welfare of an Indian child as a matter of comity if the Court granting the order had jurisdiction over the case and the order does not violate the laws of the Nisqually Indian Tribe.

50.03.05 Transfer of Jurisdiction to the Nisqually Court

The Court may accept any transfer of jurisdiction over a child from another court for proceedings under this Title.

50.03.06 Transfer to Another Jurisdiction

In any proceeding before the Court, the Court may transfer the proceeding to an appropriate state court or another tribal court where the state or the other Indian tribe has a significant interest in the child and the transfer would be in the best interest of the child. Any transfer of jurisdiction from the Court to another jurisdiction shall be in accordance with the following procedures:

(a) A tribe, parent or guardian may request the Court to transfer a proceeding by filing a petition with the Court. The petition shall include:

(i) The name, date of birth, address and tribal status of the child who is the subject of the proceeding; and,

(ii) A plain and concise statement of the reasons the transfer should be granted.

(b) The Court shall schedule a hearing on the transfer request to be held on the next scheduled court date provided that time is allowed for proper service of notice.
(c) Notice of the hearing on the transfer shall be given to all the parties at least five (5) business days before the hearing. The notice shall be given in the manner provided in Subsection 50.09.01 and shall include:

(i) The nature of the proceedings of the Court;

(ii) The date, time and place of the hearing; and,

(iii) A copy of the Petition for Transfer.

(d) The Court shall be guided by the following considerations in deciding whether to transfer jurisdiction:

(i) The wishes of the parent or guardian;

(ii) The recommendation of the Indian Child Welfare Department, the Indian Child Welfare Committee, the Nisqually Treatment Team and the Presenting Officer;

(iii) The tribal affiliation of each party;

(iv) The residence of each party;

(v) The child's length of residence on or near the Nisqually reservation or another tribe's reservation;

(vi) The type, duration and frequency of contacts the child and the child's family members have with each community involved; and,

(vii) The interest shown by the other tribe in responding to the notice given by the Nisqually Tribe.

(e) A parent's wishes regarding the transfer shall be considered but shall not be controlling as to the decision to transfer. The controlling factor shall be the child's best interest.

(f) The Court may make such orders as are necessary to protect the child and to retain jurisdiction over the child, pending the outcome of any transfer proceeding.

50.03.07 Cooperation with Agencies

The Court is authorized to cooperate fully with any federal, state, tribal, public or private agency to participate in any diversion, rehabilitation or training programs and to receive grants-in-aid to carry out the purpose of this Title. The Court may utilize such social services as may be furnished by any tribal, federal, state or private agency.

Section 50.04 - Presenting Officer

50.04.01 Presenting Officer - Appointment

The Nisqually Tribal Council shall appoint one or more Presenting Officers to carry out the duties and responsibilities set forth in this Subchapter. In the absence of an appointment to the contrary, the Nisqually Tribal Court Prosecutor shall carry out the duties and responsibilities of the Presenting Officer. If a Prosecutor is not available, the ICW social worker involved in the case shall act as Presenting Officer.

50.04.02 Presenting Officer - Powers and Duties

The Presenting Officer shall:

(a) File petitions with the Court as provided in this Title;

(b) Represent the Tribe in all proceedings under this Title; and,

(c) Perform such other duties as the Court or this Title may require.

Section 50.05 - Indian Child Welfare Department

50.05.01 Indian Child Welfare Department

The Nisqually Indian Child Welfare Department, an administrative office, has been established by the Tribal Council as a branch of Tribal Social Services. It is responsible for the provision of child and family welfare related services and for the implementation of the Indian Child Welfare Act, 25 U. S. C. 1901 et. seq. The Department's responsibilities shall include working with children and their families, and networking with other departments and programs at the Nisqually Tribe as well as extended families.

50.05.02 Indian Child Welfare Department - Authority

The Nisqually Indian Child Welfare Department shall have the authority to render services to children and their families; to recommend transfer of proceedings from state courts to Tribal Court; to initiate proceedings in the Tribal Court; to identify and develop resources on the reservation designed to enhance each child's potential as a responsible member of the tribal community; and to perform such other duties and exercise such other authority as provided for in this Title.

50.05.03 Duties and Responsibilities to Wards of the Court

When a child becomes a ward of the Nisqually Court, the Indian Child Welfare Department's duties include: providing direct services to the child and family to the extent services are available and the child or family is eligible, keeping the Court informed of the child's status through reports and participation in review hearings as requested by the Court, and working with other agencies where necessary or appropriate for the benefit of the child and family. The Department shall make all efforts to encourage involvement by the child and his or her family in available services.

The Indian Child Welfare Department is neither responsible for the child's financial support nor is it liable for the criminal and civil acts of the child.

50.05.04 ICW Social Worker

The Nisqually Tribal Council may appoint or hire one or more ICW Social Workers to carry out the duties and responsibilities of the Indian Child Welfare Department as set forth in this Title. All ICW Social Workers shall have an educational background with prior experience in the field of delivering social services to Indian children.

Section 50.06 - Indian Child Welfare Committee

50.06.01 Indian Child Welfare Committee - Purpose

The Indian Child Welfare Committee is hereby established to help resolve child and family problems, in keeping with the customs of the Nisqually Indian Tribe. The Indian Child Welfare Committee shall give recommendations to the Indian Child Welfare Department on measures to be taken to protect tribal families including family support services, emergency placements, longer term placements, and adoptions.

50.06.02 Indian Child Welfare Committee - Appointment

The Indian Child Welfare Committee shall be appointed by the Tribal Council and shall consist of a Chairperson, a Secretary, and Members-At-Large. The Committee shall be made up of individuals who have special expertise or knowledge regarding the issues surrounding children and families.

50.06.03 Indian Child Welfare Committee - Removal

The Tribal Council may remove a member from the Indian Child Welfare Committee when it determines that removal is in the best interest of the Tribe. If a member of the Indian Child Welfare Committee is absent from more than four meetings in one year, that person shall be removed from the Committee and the Tribal Council shall appoint a replacement.

50.06.04 Indian Child Welfare Committee - Powers and Duties

The Committee shall have those powers and duties specified under this Subchapter and any other powers and duties delegated by the Tribal Council.

Section 50.07 - Committee Meeting

50.07.01 Committee Meeting - When Scheduled

Committee meeting shall be held once a month on a regularly scheduled day. Committee meetings are closed to everyone other than the members of the Committee and the Indian Child Welfare
Department representative. Other persons may only be present if requested by the Committee.

50.07.02 Committee Meeting - Purpose

The purpose of the Committee meeting is to provide a means for the Indian Child Welfare Department to keep the Tribe informed regarding actions that are being taken in regard to Indian children. The meeting is also an opportunity for the Indian Child Welfare Department to receive advice from the Tribe regarding actions being taken. Discussions regarding particular individuals and cases are strictly confidential and shall be treated accordingly by all persons attending the meeting.

50.07.03 Committee Meeting - Duties of Indian Child Welfare Department

When a Committee Meeting is held, the Indian Child Welfare Department shall:

(a) Attend the meeting and inform the Committee of any and all actions it is currently taking in regard to Indian children;

(b) Provide a report on the status of all complaints filed since the prior meeting;

(c) Provide the Committee with a Family Preservation Plan for each child for whom action is being taken at the time the child's case is presented to the Committee; and,

(d) Participate in the Committee meeting and solicit the approval of the Committee regarding the proposed plan of action.

50.07.04 Committee Meeting - Powers and Duties of Committee

(a) The Committee may take the following actions at the Committee Meeting:

(i) Assist the Indian Child Welfare Department in the formulation of a Family Preservation Plan including soliciting
information from persons knowledgeable in the customs of the Tribe and the family; and,

(ii) Make recommendations to the Indian Child Welfare Department regarding placement
or other Court proceedings.

(b) The Committee's powers in regards to particular cases shall be limited to authority delegated by the Tribal Council. The Indian Child Welfare Department retains the authority to decide whether to pursue any appropriate action regarding a child.

(b) The Committee shall establish their by-laws and amend them as necessary.

50.07.05 Family Preservation Plan

The purpose of the Family Preservation Plan is to resolve the problems within the family that may cause or have caused a child to be determined to be a "child in need of care". The goal of the plan is to allow the family to remain together or to work towards reunification if the child has been or will be removed.

The Family Preservation Plan may include any measures necessary for the protection, safety and well-being of the child and the family, including but not limited to evaluation and treatment (including involuntary residential treatment) of substance abuse, mental illness, and emotional disturbance; parenting classes; mandatory school attendance; visitation orders; restraining orders; and other services or activities for the benefit of the child and his or her family. The Plan may specify that the Indian Child Welfare Department will initiate a Court action if the Plan is not complied with.

The Family Protection Plan shall include the protection of an unborn fetus or nursing baby whose mother is using alcohol or other drugs, to an extent that the fetus or baby may be endangered, and an unborn whose mother is not receiving adequate prenatal care.

Section 50.08 - Court Appointed Child Advocates

50.08.01 Qualifications of Child Advocate

Any person who is at least eighteen (18) years old shall be qualified to be a child advocate if he or she has completed the Tribe's CASA training program or an equivalent program and has received Tribal certification.

50.08.02 Duties of Child Advocate

A child advocate appointed by the Court shall have the following duties:

(a) To represent and be an advocate for the best interests of the child by presenting relevant facts to the court through a written report and direct testimony and to recommend a plan that is in the best interest of the child;

(b) To collect relevant information about the child's situation and the family's circumstances;

(c) To monitor court orders for compliance and to bring to the court's attention any change in circumstances that may require a modification of the court's order;

(d) The child advocate shall be deemed an officer of the court for the purpose of immunity from civil liability.

50.08.03 Appointment of Child Advocate

(a) A child advocate shall be appointed by the Court when the Court determines that a child advocate is available and that it would be in the best interest of the child to do so. Appointment of a child advocate does not alter a child's right to legal counsel at his or her own expense.

(b) A child advocate may be appointed by the Court at the preliminary hearing or at any time thereafter.

(c) All appointments shall be made by an order of the court which shall include a statement that the child advocate is a party to the case and shall have access to legal records and other information available to any social service agency involved in the case.

(d) The order of appointment shall be mailed to all other parties to the case.

Section 50.09 - Court Procedures

50.09.01 Procedures for Service of Notice

(a) No proceeding shall be commenced in the Court without written notice to all parties. Notice shall include:

(i) The nature of the proceedings and the name of the court;

(ii) The date, time and place of the hearing; and,

(iii) A copy of the petition or motion if one has been filed.

(b) The notice shall be served by the Court Clerk or other designee of the Court as follows:

(i) By delivering a copy personally to the party or by leaving a copy at the party's residence with any member of the party's family who is residing therein and is sixteen (16) years of age or older.

(ii) If, after every reasonable effort is made, the person attempting service is unable to serve the party in the above stated manner, the notice may be served by sending a copy of the notice to the party by certified mail, return receipt requested, properly addressed, postage prepaid and by sending an additional copy to the party by regular mail.

(iii) If, after every reasonable effort is made, the party cannot be located, and the party's
address is unknown, any other method reasonably designed to give notice to the party shall be sufficient.

(c) Proof of service may be made by affidavit stating that the person has fully complied with the requirements for service. If service is made in the manner described in subparagraph (ii) or (iii), the affidavit must describe the efforts that were made to personally serve the party.

(d) After the notice of the first court proceeding in the case has been properly served, notice of future hearings may be given verbally in open court. If the party is not present when notice of the future hearing is given in open court, notice shall be given by regular mail to the person's last known address.

50.09.02 Notice to Other Tribes

If the Court or any party, in a proceeding involving the out-of-home placement of a child, has reason to believe that the child is a member or eligible for membership in another tribe, the Nisqually Court Clerk shall be directed to give written notice of the proceeding to the other tribe. The notice shall ask that the tribe respond in writing within fifteen (15) days of receiving the notice and to state whether it intends to act in the matter.

50.09.03 Rights of the Parties

(a) All parties are entitled to the following rights in all proceedings under this Title:

(i) To know the reason the action was brought and, if children were removed from the home, the reason for the removal;

(ii) The opportunity to subpoena witnesses;

(iii) The opportunity to introduce, examine and cross-examine witnesses subject to the Court's discretion to take any child's testimony in the Court's chambers;

(iv) The opportunity to discover, offer and inspect evidence;

(v) The opportunity to present arguments and statements;

(vi) A statement by the Court to the child and his or her parent or guardian that they have
the right to have a legal representative advise and speak for them, at their own expense;

(vii) If a party initially appears at a proceeding without a legal representative, the Court shall advise that party of their right to request a continuance of the proceeding at which the party makes an initial appearance in order to seek legal representation. Upon request, the Court shall inform a party of any known available services which provide legal representation at little or no cost to qualified applicants.

(viii) A party need not be a witness against him/ herself.

(b) Both of the parents of a child who is the subject of proceedings under this title shall be considered parties to the case, regardless of whether a custody order has been entered for one of the parents.

50.09.04 Conduct of Court Hearings

(a) All Court hearings conducted under this Title shall be closed to everyone other than the parties except for good cause shown to the Court. The Court shall have the authority to elicit evidence necessary to make its determination.

(b) All hearings conducted pursuant to this Title shall be conducted expeditiously and fairly. All persons entitled to notice shall have reasonable opportunity to participate in all proceedings affecting the child.

50.09.05 Evidence

The Court may hear any evidence which is relevant to the case and which is reasonably reliable.

50.09.06 Continuances

Except as otherwise expressly provided in this Subchapter, the Court may continue any proceeding:

(a) Upon motion of a party if the Court finds that there exists good cause for the continuance, including time to perfect service or to produce material evidence or witnesses currently unavailable although due diligence has been exercised to procure them, if it is reasonable to believe that the evidence or witnesses will soon become available; or

(b) Upon its own motion, if the Court considers it to be in the best interest of the child.

50.09.07 Records

(a) All conference, hearing and law enforcement records and files shall be confidential and shall not be open to inspection to any but the following, except as may be ordered by the Court in the child's best interest:

(i) the child and their legal representative;

(ii) the child's parent(s), guardian or custodian and their legal representative;

(iii) the Nisqually Indian Child Welfare Department caseworker assigned to the case;

(iv) the Presenting Officer; and,

(v) the child advocate assigned to the case.

(b) Notwithstanding subsection (a), the Nisqually Indian Child Welfare Department is authorized to provide a copy of any Court Order establishing custody, guardianship, or parental rights over a child to the child's school or any other agency when the office determines that to do so is in the best interest of the child.

50.09.08 Intervention

Upon showing of good cause and if the best interests of the child so indicate, the Court may allow or invite persons other than those entitled to notice to intervene and participate in any or all phases of the proceedings subject to the rules of confidentiality pursuant to this Title.

50.09.09 Placement Preferences

(a) If a child is placed out-of-home, the following placement preferences shall be observed, in order:

(i) With a member of the child's immediate family who resides within or near the Nisqually community;

(ii) With a member of the child's immediate family regardless of residence;

(iii) With a member of the child's extended family who resides within or near the Nisqually community;

(iv) With a member of the child's extended family regardless of residence;

(v) With another person who resides within or near the Nisqually community who has knowledge of and a desire to foster the child's tribal status and special needs;

(vi) With a member of, or a person eligible for, enrollment in the child's tribe;

(vii) With a member of another Indian tribe;

(viii) With any person who has knowledge of and a desire to foster the child's tribal status and special needs (including but not limited to cultural, therapeutic, and needs based on disability);

(ix) If this order of placement preference cannot be met, then placement may be made with any person deemed suitable by the entity doing the placement. However, efforts should be made to find a more appropriate placement as soon as possible.

(b) The placement preferences in paragraph (a) shall be observed unless the person having priority cannot adequately care for and protect the child or placing the child with the person having priority would pose a danger to the child.

(c) Placement of a child with anyone who does not reside within the jurisdiction of the Nisqually Indian Tribe shall be contingent on the person's written agreement to accept the jurisdiction of the Tribal Court, to not permanently remove the child from the State of Washington without permission from the Court or supervising agency, to not allow the child to cross an international boundary, and to cooperate fully with the Indian Child Welfare Department and law enforcement.

50.09.10 Appeals

Any party to a proceeding under this Subchapter may appeal a fact finding or dispositional order by filing a written notice of appeal with the Court within fourteen (14) days of the final dispositional order. All appeals shall be conducted in the same manner as other civil appeals.

Section 50.10 - Reporting Abuse and Neglect

50.10.01 Duty to Report Abuse and Neglect

The care of children is both a family and a tribal responsibility. Any person who has reason to suspect that a child has been abused or neglected shall immediately report the abuse or neglect to law enforcement or to the Indian Child Welfare Department. Reporting under this subsection is mandatory for all medical and mental health professionals, court personnel, foster parents, law enforcement and tribal employees (including volunteers and persons working on contract for the tribe) who perform services to the community in the areas of education, health and human services.

50.10.02 Immunity of Reporter

All persons who report child abuse or neglect, in good faith, are immune from civil liability and criminal prosecution.

50.10.03 Sanctions for Not Reporting

Any person who is required to report abuse or neglect under Subsection 50.10.01 and who knowingly fails to report abuse or neglect is subject to a civil fine not to exceed $5,000.

50.10.04 Contents of Report

A report of abuse or neglect may be made orally but must be followed by a written report within twenty-four (24) hours including:

(a) The name, age, address and tribal status of the child, if known;

(b) A plain statement of the facts on which the report is based, including the date, time and location of the events;

(c) The name, address, phone number and present location of the suspected offender, if known;

(d) The name of the reporter; and,

(e) Any other information that might be helpful in assisting or protecting the child from further abuse or neglect.

50.10.05 Confidentiality of Report

Child abuse or neglect reports are confidential. This confidentiality shall not be interpreted to hamper cooperation between agencies which is necessary to properly investigate child abuse and neglect. Where there is a conflict between confidentiality and the need for communication between agencies and departments, protection of the child shall be the overriding consideration.

Section 50.11 - Child in Need of Care

50.11.01 Child in Need of Care - Defined

A "child in need of care" is one who:

(a) Has been abandoned or who has no parent or guardian available, willing and able to care for him or her.

(b) Has been severely neglected. Signs that a child has been neglected include but are not limited to the following:

(i) A child who is not receiving the food, clothing, shelter, medical care, education or supervision needed for his or her well-being or development;

(ii) An infant who is failing to thrive;

(iii) A child who is not dressed adequately for weather conditions;

(iv) A child who is truant;

(v) A child left with a baby-sitter who is intoxicated, irresponsible, incapacitated or otherwise incapable;

(vi) A child who lacks parental control because of the habits or fault of the parent(s) or guardian;

(vii) A child who is doing the work of a parent in running a household because the parent or guardian refuses or fails to act as a parent or forces the child;

(viii) A child exposed to a dangerous situation as a result of negligence of the parent or guardian;

(ix) A child whose parent(s) or guardian misuse benefits intended for the child, such as selling or squandering food stamps or commodities;

(x) An unborn or nursing child whose mother is using alcohol or other drugs, to an extent that the fetus or baby may be endangered;

(xi) An unborn child whose mother is not receiving adequate prenatal care;

(xii) A minor who is allowed access to alcohol or other drugs;

(xiii) A child who is allowed to be out after curfew;

(xiv) A child with untreated head lice;

(xv) A child whose parent or caretaker has failed to protect the child from an abusive caretaker, partner or significant other;

(xvi) A child who has been exposed to domestic violence in the home;

(xvii) A child whose caretaker is using substances to the point that it affects the caretaker's ability to take care of family or other household responsibilities;

(xviii) A child whose caretaker(s) refuses to assist the child in his or her efforts to receive treatment for alcoholism, drug addiction, or any physical or emotional problem.

(xix) A child who is not receiving adequate dental care.

(c) Has been emotionally abused. Emotional maltreatment causes impaired psychological growth and development of the child. Both community values and professional expertise should be looked at when deciding whether emotional maltreatment has taken place. Some indicators of emotional maltreatment are:

(i) The child's social relationships are seriously impaired: very low self-esteem, a consistent pattern of emotional difficulties such as listlessness, apathy, depression and self-deprecating remarks;

(ii) Serious inability of the child to respond appropriately to adult/ child interactions (e. g. the child cowers or ingratiates himself to adults);

(iii) Refusal to bond or establish an emotional attachment to the child;

(iv) Failure to stimulate/ educate the child in an appropriate manner or depriving the child of essential responsiveness which stifles emotional growth and development of the child;

(v) Ridiculing, terrorizing or verbally assaulting the child, creating a climate of fear, bullying the child, name-calling, destroying the child's possessions, or attacking beloved people or pets;

(vi) Forceful isolation of a child or cutting a child off from normal social experiences, preventing a child from forming friendships, or a child who is locked in or locked out of the home or who leaves home because of partying in the home;

(vii) Corrupting a child by teaching him or her socially deviant behavior such as rewarding aggression, delinquency, or sexually precocious behavior;

(viii) Penalizing a child for positive, normal behavior.

(d) Has been or is likely to be physically abused. Physical abuse includes but is not limited to:

(i) Any bruising, welting, abrasion, lesions, burns, broken bones, or other damage to the body, not clearly caused by pure accident;

(ii) Giving a child inappropriate food, drink or drugs or a child who is suffering from malnutrition/ dehydration;

(iii) Extreme forms of punishment/ isolation including, but not limited to, hair pulling, slapping or hitting the child's head, severe shaking, yanking limbs, twisting or pulling the child's ears;

(iv) Blocking the child's airways or in any way hindering the child's ability to breathe;

(v) Exposing the child to toxic substances including, but not limited to, manufacturing or using drugs in the home.

(e) Has been or is likely to be sexually abused. Sexual abuse includes, but is not limited to the following:

(i) Contacts or interactions between a child and an adult when the child is being used for the sexual stimulation of the perpetrator or another person (Pedophilia). Pedophilia includes grooming or soliciting a child for sexual purposes;

(ii) The exposure of the perpetrator's genitals in the presence of a child, or any other sexual act, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose (Exhibitionism);

(iii) Obscene calls, jokes, peeping, sexual propositions, or other forms of sexual exploitation;

(iv) Sexual positioning for photos or other forms of child pornography;

(v) Forcing a child to watch or engage in sexual acts or sexual violence;

(vi) French kissing, handling genitals, masturbation, mouth to genital contact are forms of sexual intercourse. Rape is not limited to penetration;

(vii) Oral, anal, or vaginal rape;

(viii) Anal or vaginal digital penetration or penetration with any object;

(ix) Sexual maiming or sexual bondage.

(x) Failure to protect a child from sexual abuse by another or to protect against incest between siblings.

Sexual abuse may also be committed by a person under eighteen (18) years of age when that person
is either three years or more older than the victim, when the victim is a mentally impaired child, or when
the perpetrator is in a position of power or control over another child.

(f) Has been committing delinquent acts as a result of pressures, guidance or approval of his or her parents or guardian.

(g) Has run away from home.

(h) Is in serious conflict with his or her parent or guardian to the point where assistance outside the immediate family is needed or requested by the parent or guardian.

(i) Has threatened to commit suicide or is showing other signs of being suicidal.

50.11.02 Presumption that Child is in Need of Care

When, after reviewing the facts, it is uncertain whether a child is in need of care, the balance shall be weighed in favor of providing protection for the child.

50.11.03 Receipt of Report by Law Enforcement

Upon receipt of a report that a child is in need of care, law enforcement shall take the following steps:

(a) Law enforcement shall immediately investigate the report. If law enforcement has reasonable grounds to believe that a child is in need of care based on his or her investigation, the Indian Child Welfare Department shall be notified. Based on the investigation, a detailed written report shall be completed by law enforcement. A copy shall be delivered to the Indian Child Welfare Department and to the Presenting Officer/ Prosecutor within twenty-four hours of the date the complaint was received.

(b) If law enforcement reasonably believes the child is in imminent danger of physical or emotional harm and that removal is necessary for the child's safety or well-being, the officer may take the child into custody for 72 hours.

(c) If law enforcement takes a child into custody, he or she shall:

(i) Release the child to the child's parent(s) or guardian and issue verbal counsel or warning as may be appropriate; or,

(ii) Immediately notify the Indian Child Welfare Department and request direction as to whether the child should be placed out-of-home and if so where; or,

(iii) If no representative of the Indian Child Welfare Department can be reached, the officer may contact Child Protection Services (C. P. S.) for the purpose of emergency placement, but shall continue attempts to notify the Indian Child Welfare Department.

(iv) If the child is not released, immediate and continuing efforts shall be made by both law enforcement and the Indian Child Welfare Department to notify the child's parent(s) or guardian as to the circumstances surrounding the child's custody.

(d) When law enforcement receives a report that a child has been raped or otherwise sexually molested, the officer shall take the child to the hospital as soon as possible to assess the severity of physical harm and for the collection of evidence.

50.11.04 Receipt of Report by Indian Child Welfare Department

Upon receipt of a report that a child is being abused, neglected, or is otherwise in need of care, the Indian Child Welfare Department shall:

(a) Notify law enforcement of any report of abuse or neglect and of any licensed facility
involved;

(b) Make a preliminary investigation to determine whether there is reason to believe that a child is in need of care. The Indian Child Welfare Department may request C. P. S., law enforcement or any other appropriate agency to assist in conducting the investigation;

(c) If the Indian Child Welfare Department reasonably believes that a child is in imminent danger of physical or emotional harm and that removal is necessary for the child's safety or well-being, he or she shall:

(i) Request an Emergency Custody Order, if there is time and a judge or judicial officer
is available; or,

(ii) Notify Law Enforcement and request that the child be placed in protective custody.

(iii) If the child's parent(s) or guardian has not been notified, the Indian Child Welfare Department shall make continued efforts to inform both parents or the guardian at the earliest possible time and return the child to a parent or guardian if such action is appropriate.

(iv) If the child is not returned to a parent or guardian, the Indian Child Welfare Department shall inform both parents or the guardian of the reason the child is not being returned to the home and inform the parents or guardian that they will be notified of the hearing on the matter and will be parties to the proceedings.

(v) If the Indian Child Welfare Department is unable to locate the child's parent or guardian within 24 hours, the Department shall document its attempts to locate the parent or guardian.

(d) If a child is taken into custody and it is unlikely that he or she will be released to his or her parent(s) or guardian within 72 hours, the Indian Child Welfare Department shall notify the Presenting Officer who shall immediately file a request for a Preliminary Hearing.

(e) If the Indian Child Welfare Department determines that a child is not in an emergency situation but is in need of care, the office shall:

(i) Work with the child and the family and attempt to reach an informal resolution of the
problem; or,

(ii) Notify the Presenting Officer who shall immediately file a petition for a Preliminary
Hearing.

Section 50.12 - Emergency Custody Orders

50.12.01 Emergency Custody Orders - Grounds

Upon request from law enforcement or the Indian Child Welfare Department, the Court may enter a warrant directing a law enforcement officer or other appointee of the Court to take a child into custody if the Court finds that there is probable cause to believe the child is in imminent danger of physical or emotional harm, is likely to suffer from the long term impact of physical or emotional harm, or that the child has no parent or guardian available and/ or able to presently provide proper care.

50.12.02 Emergency Custody Orders - Content

The Emergency Custody Order shall specifically name the child to be taken into custody, be signed by the judge or judicial officer, state the date and time issued, and name the person or persons authorized to take the child into custody. An Emergency Custody Order may be transmitted by the judge or judicial officer by telephone, computer or fax.

50.12.03 Emergency Custody Order - Service and Duration

An Emergency Custody Order must be executed within 48 hours of issuance. A child taken into custody under an Emergency Custody Order shall be held until the conclusion of the Preliminary Hearing or as otherwise ordered by the Court. However, no emergency custody shall continue for more than seventy-two (72) hours after the time at which the child is taken into emergency custody unless a request for a Preliminary Hearing has been filed.

Section 50.13 - Preliminary Hearing

50.13.01 Preliminary Hearing - Purpose

The purpose of the Preliminary Hearing is to determine whether there is probable cause to believe that a child is in need of care. A Preliminary Hearing shall be held whenever a child is taken into custody and it is unlikely that he or she will be released to his or her parent(s) or guardian within 72 hours. The Court must make the following determinations at that hearing:

(a) The tribal status of the child;

(b) Whether there is probable cause to believe the child is in need of care;

(c) The best interest of the child and the Tribe with regard to any action to be taken;

(d) Whether a child advocate should be appointed for the child; and,

(e) Whether continued out-of-home placement is necessary pending further proceedings.

50.13.02 Request for Preliminary Hearing

A request for a Preliminary Hearing shall be initiated by a petition filed by the Presenting Officer. The Presenting Officer shall file such a petition upon the request of the Indian Child Welfare Department. If the Indian Child Welfare Department fails to act or achieve a resolution regarding a report of a child in need of care within a reasonable amount of time in light of the child's circumstances, a person with an interest in the child may request a Preliminary Hearing on his or her own initiative.

50.13.03 Request for Preliminary Hearing - Contents

A request for a Preliminary Hearing shall include:

(a) The name, date of birth, address, domicile and tribal status of the child;

(b) The name, address and tribal status of the child's parent(s);

(c) The name and address of the child's guardian or custodian;

(d) A plain and concise statement of the facts which support the allegation that the child is in need of care; and,

(e) If the child is in out-of-home placement, the location of the placement and the time taken into custody. (The location of the placement may be omitted if inclusion would put the child or the child's caregiver in danger.)

50.13.04 Setting the Preliminary Hearing

When a child has been taken into emergency custody, a Preliminary Hearing shall be conducted within two (2) working days of filing a request for a Preliminary Hearing. If the child has not been removed from the home, the hearing shall take place at the next scheduled court date.

50.13.05 Preliminary Hearing - Summons

(a) Summons to appear at the Preliminary Hearing shall be given at least twenty-four (24) hours before the hearing. The summons shall include:

(i) The nature of the proceedings of the Court;

(ii) The date, time and place of the hearing;

(iii) A copy of the Request for Preliminary Hearing.

(b) The following persons shall be served with summons:

(i) The child's parents;

(ii) The child's guardian;

(iii) The Presenting Officer;

(iv) The Indian Child Welfare Department.

50.13.06 Presence of Parent(s) or Guardian

If the child's parent(s) or guardian is not present at the Preliminary Hearing, the Court shall determine what efforts have been made to notify and to obtain their presence. If it appears that further efforts are likely to produce the parent(s) or guardian, the hearing shall be recessed for a reasonable period of time and the Court shall direct continued efforts to obtain their presence. If the parent(s) or guardian is not produced after a reasonable recess, the Preliminary Hearing shall proceed without delay.

50.13.07 Court's Finding - Release of Child

If the Court finds that there is not probable cause to believe the child is in need of care, the child shall be released to the custody of his or her parent(s) or guardian.

50.13.08 Court's Finding - Child in Need of Care

(a) If the Court finds that there is probable cause to believe that the child is in need of care, it may make an interim dispositional order as follows:

(i) That the child be released to his parent(s) or guardian pending further proceedings;

(ii) That the child be placed out-of-home, if the Court finds that there is probable cause to believe that:

(A) No parent or guardian is able, or available to provide adequate supervision of and care for the child; or,

(B) The child will run away or otherwise be unavailable for further proceedings; or,

(C) The child will be in danger of physical or emotional harm if the child is returned to his or her parent(s) or guardian; or,

(D) The child will cause serious damage to persons or property; or,

(E) The child requires medical care, treatment, or evaluation or other services that he could not otherwise receive if he were to remain in the custody of his parent(s) or guardian; or,

(F) The child has been abandoned.

(iii) That any person who poses a threat to the child's well-being be restrained from contacting the child. Such an order may be entered to protect a child in his or her home or while in an out-of-home placement;

(iv) That the parties shall keep the Court informed as to any changes in their whereabouts and mailing addresses;

(v) Appointing a child advocate for the child.

(vi) The Court may make other orders necessary for the protection and well-being of the child and the family, including but not limited to evaluation and treatment (including involuntary residential treatment) of substance abuse, mental illness, and emotional disturbance; parenting classes; mandatory school attendance; visitation orders; and
other services or activities for the benefit of the child and his or her family. The Court may make a particular placement conditional on compliance with any of its orders.

(b) Any interim dispositional order of the Court shall remain in effect until a Dispositional Hearing has been held.

50.13.09 Fact Finding Hearing - Scheduling at Preliminary Hearing

(a) If the Court finds that a child is in need of care the Court shall set a date and time for a Fact Finding Hearing regarding the child and shall advise the parties of the date, time and place of that hearing, and shall order their attendance at the hearing.

(b) The Court may also schedule a Dispositional Hearing to be held at the same time as the Fact Finding Hearing if it determines that to do so would be in the best interest of the child.

(c) If the parent(s) or guardian of the child is not present at the Preliminary Hearing, notice of the Fact Finding Hearing shall be served in accordance with Subsection 50.09.01.

50.13.10 Restraining/No Contact Orders

Any restraining order entered by the Court shall specify the limits of the restraint. Such orders shall clarify whether the restrained party may contact the other person by phone, mail or other means. The order shall also specify the distance which the restrained party must stay away from the other party, his or her home, work or other location and shall clarify such other restraints as may be put upon the person.

Section 50.14 - Fact Finding Hearing

50.14.01 Purpose

The Court shall conduct a Fact Finding Hearing for the purpose of determining whether a child is in need of care.

50.14.02 Setting the Fact Finding Hearing

At the Preliminary Hearing, the Court shall set a date for a Fact Finding Hearing which shall not be more than thirty days after the Preliminary Hearing.

50.14.03 Court's Findings - Release of Child

If the Court finds by a preponderance of the evidence that the child is not in need of care, the child shall be released to the custody of his or her parent(s) or guardian.

50.14.04 Court's Findings - Child in Need of Care

(a) If the Court finds by a preponderance of the evidence that the child is in need of care, it shall schedule a Dispositional Hearing.

(b) If the Dispositional Hearing has previously been scheduled to take place at the same time as the Fact Finding Hearing, the Court shall proceed to disposition unless it determines that it would not be in the best interest of the child.

Section 50.15 - Dispositional Hearing

50.15.01 Predispositional Report

The Indian Child Welfare Department shall prepare a written report describing all reasonable and appropriate alternatives. The report shall contain a proposed Family Preservation Plan as described in Subsection 50.07.05. The report shall explain the necessity for the proposed plan and its benefits to the child and the child's parent(s) or guardian. If placement with someone other than the child's parent(s) or guardian is recommended, the report shall contain specific reasons for not recommending placement of the child with the child's parent(s) or guardian. The report shall also describe the efforts
made to avoid an out-of-home placement.

50.15.02 Predispositional Report - Service

The Indian Child Welfare Department shall mail or personally deliver the predispositional report to the Court and all parties to the proceeding at least five (5) days before the dispositional hearing.

50.15.03 Additional Reports

Any party to an action pursuant to this Subchapter may file a predispositional report which shall include his or her recommendations for consideration by the Court.

50.15.04 Dispositional Hearing

(a) A Dispositional Hearing shall be held to decide how to best meet the needs of the child and assist his or her family. This hearing may take place at the end of the Fact Finding Hearing or may take place separately. The Court shall determine the scheduling and shall direct the Court Clerk to notify all parties.

(b) The Court shall hear testimony, consider all proposed Family Preservation Plans filed and seek recommendations from professionals experienced in providing services to children. All parties shall be given an opportunity to contest the facts and conclusions presented in each proposed Plan.

(c) In determining an appropriate disposition, the Court shall consider all of the following applicable factors:

(i) Special physical or emotional needs of the child;

(ii) Social, cultural or religious traditions of the child, his or her family, or the Nisqually Tribe;

(iii) Availability of resources within the child's extended family;

(iv) The child's preference for placement, if the child is over twelve (12) years of age;

(v) The recommendation of the Nisqually Indian Child Welfare Department, the child advocate and any other person with an interest in the child;

(vi) Recommendations of professionals experienced in providing services to children;

(vii) Other factors calculated to meet the needs of the individual child and the purposes of this Title.

50.15.05 Court Ordered Family Preservation Plan (Disposition)

(a) If a child has been determined to be in need of care, the Court shall order a Family Preservation Plan for his or her protection and well-being. The Plan shall either allow the child to remain with his or her parent(s) or guardian, subject to any such limitations and conditions the Court may order, or the Court may order an out-of-home placement subject to
the placement preferences listed in Subsection 50.09.09. Before placing the child out of the home, the Court must determine that reasonable efforts have been made to avoid the out-of-home placement. An out-of-home placement may also be subject to any limitations and conditions the Court may prescribe.

(b) The Court may make any orders necessary for the protection and well-being of the child and the family. Such orders may include but are not limited to: evaluation and treatment (including involuntary residential treatment) of substance abuse, mental illness, and emotional disturbance; parenting classes; mandatory school attendance; mediation;
visitation orders; restraining orders; and other services or activities for the benefit of the child
and his or her family. The Court may make a particular placement conditional on compliance
with any of the above orders.

(c) The Court may also order restitution in any reasonable amount for acts of the child resulting in damage or injury to any individual or the Nisqually Tribe and/ or order the child to perform community service appropriate to the needs or abilities of the child.

(d) In any order which places a child off-reservation, the Court shall include a specific plan to ensure that the child maintains cultural and family ties with the Nisqually Tribe. Orders for visitation shall specifically state frequency, duration, persons with whom visitation is allowed, and whether visits are to be supervised and if so, by whom.

50.15.06 Review Hearings

(a) The Court shall conduct a hearing to review its Family Preservation Plan at least once every six months, or earlier upon motion of any party or upon the Court's own motion. If the child has been placed out of the home, the hearing shall be within six months of the date of initial placement. The first review hearing shall be scheduled by the Court at the Dispositional
Hearing. Every review hearing thereafter shall be scheduled at the previous hearing.

(b) At the hearing the Court shall review whether the parties are complying with the Plan and shall consider whether modification of the order is necessary to protect the child and strengthen the child's family. If the child has been placed out of the home the Court shall determine whether reasonable efforts have been made to return the child to the custody of
his or her parent(s) or guardian.

Section 50.16 - Peacemaker Conference

50.16.01 Request for Peacemaker Conference

After a Preliminary Hearing has been held, any party to the proceeding may file with the Court Clerk a request for a Peacemaker Conference. The Court may also provisionally transfer a case to a Peacemaker Conference on its own motion.

50.16.02 Setting the Peacemaker Conference

The Court Clerk shall schedule the peacemaker conference to be held no later than twenty (20) days after the Request for Peacemaker Conference has been filed.

50.16.03 Peacemaker Conference - Required Notice

(a) Notice of the Peacemaker Conference shall be given at least five (5) days before the hearing. The notice shall include:

(i) The reason for the Peacemaker Conference;

(ii) The date, time and place of the conference; and,

(iii) A copy of the Petition for Fact Finding.

(b) The following persons shall be served with the required notice:

(i) The child's parents;

(ii) The child's guardian or custodian;

(iii) The child advocate;

(iv) The Presenting Officer;

(v) The Indian Child Welfare Department.

50.16.04 Peacemaker Conference - Procedure

The following procedures apply to Peacemaker Conferences:

(a) The hearing shall be informal and conducted according to the process established by the Court.
(b) No substantive information obtained at the conference may be admitted into evidence at a court hearing or any other court proceeding unless such information can be substantiated by outside evidence. However, the terms of an agreed upon Family Preservation Plan are admissible as evidence at a subsequent proceeding involving the child.

(c) If an agreement is reached at a Peacemaker Conference, it shall be set forth in writing including any conditions or requirements to be performed. The child, the child's parent(s), the child's guardian, the child advocate, and the Tribe's presenting officer or a representative of the Nisqually Indian Child Welfare Department on behalf of the Tribe shall sign the agreement.

(d) The agreement shall be for a fixed period of time and shall not continue beyond the child's eighteenth (18) birthday.

(e) If no agreement is reached during the Peacemaker Conference or the parties fail to appear at the scheduled conference, a Fact Finding Hearing shall be scheduled as soon as practical.

50.16.05 Monitoring - Failure to Comply with Agreement

(a) The Indian Child Welfare Department shall monitor any agreement reached at a Peacemaker Conference throughout its term. If the Indian Child Welfare Department finds that there has been a failure to comply with the terms of an agreement, it may recommend that the Presenting Officer proceed with a Fact Finding Hearing.

(b) At the Fact Finding Hearing, the child or his or her parent or guardian may challenge before the Court the allegation of noncompliance with the agreed disposition. If the Court finds that the parties have complied, it shall dismiss the petition and reinstate the agreed disposition.

50.16.06 Formalization of Agreement

(a) When the parties to a Peacemaker Conference reach an agreement they wish to have confirmed and recorded as a formal order of the Court, they shall present a draft order to the Court for its consideration. The Court may enter an order only when the following conditions have been met and are set forth in the order:

(i) The Court has jurisdiction over the parties and the subject matter of the agreement;

(ii) All necessary parties have actual knowledge of the proposed order and have agreed to it;

(iii) The order contains the complete agreement of the parties and contains enough information regarding the full agreement so a dispute as to the order is not likely to arise in the future; and,

(iv) The order is otherwise proper and enforceable.

(b) Any agreement in which a parent or guardian voluntarily consents to place his or her child in foster care must be signed before a judge or judicial officer of the Court. The judge or judicial officer shall first question the parent or guardian to determine that he or she understands the terms of the agreement and consequences of the consent.

(c) No order may be entered which terminates parental rights unless the requirements of Section 50.19 of this Title have been met.

(d) An order of the Court upon a Peacemaker Conference agreement may be enforced as any other order of the Court.

Section 50.17 - Custody Declarations

50.17.01 Purpose

The purpose of this Section is to provide a procedure for a parent to obtain a court order declaring that he or she has custody of his or her child. It affirms the existing rights of the parent to custody and protects those rights against other parental claims which have not been established. A declaration under this Section does not terminate rights a putative father may have.

50.17.02 Petition for Custody - How to File

Any parent of a child may seek an order granting custody of the child by filing a petition with the Court. If the parent is seeking a declaration of custody for more than one child, a separate petition should be filed for each child.

The Court Clerk shall deliver a copy of the petition to the Indian Child Welfare Department no later than three (3) days after the date on which the petition was filed.

50.17.03 Petition for Custody - Contents

(a) The petition shall be a true and correct statement signed and sworn by the petitioner and shall include:

(i) The name, date of birth, address, domicile and tribal status of the child;

(ii) The name, date of birth, address and tribal status of the parent seeking the custody declaration;

(iii) The name, date of birth, address and tribal status of the child's other natural parent, if such information is known;

(iv) A statement as to whether any paternity proceedings or other custody proceedings have taken place in regard to the child;

(v) A statement as to why it is in the best interest of the child for the petitioner to be granted full and exclusive custody; and,

(vi) Any additional information the parent believes would assist the Court in its decision.

(b) A true and correct copy of the child's birth certificate shall be attached to the petition.

50.17.04 Intervention by Nisqually Indian Child Welfare Department

The Nisqually Indian Child Welfare Department is not required to be a party or witness in a custody case but may provide the Court with information and recommendations.

50.17.05 Setting the Custody Hearing

The Court Clerk shall schedule a hearing before the Nisqually Court to take place no later than sixty (60) days from the date the petition is filed. A notice of hearing shall be mailed or delivered to the petitioner, and to the Indian Child Welfare Department. If the whereabouts of the other natural parent are known, notice of the hearing shall be provided to that parent as specified in Subsection 50.09.01.

50.17.06 Declaration of Custody - Order

The Court shall enter a written order declaring that the petitioner has custody of the child if it determines that it is in the best interest of the child that the petitioner be granted sole custody.

50.17.07 Declaration of Custody - Duration

A declaration of custody shall remain in effect until:

(a) The child reaches eighteen (18) years of age;

(b) The child marries or becomes otherwise emancipated prior to age eighteen; or,

(c) The Nisqually Court orders a modification of the declaration of custody order.

Section 50.18 - Guardianships

50.18.01 Purpose

The purpose of this Section is to provide a mechanism for the appointment of a guardian for a child to ensure that the child has an adult legally responsible for the child, and that the adult has the necessary legal rights to ensure the child receives proper care. An appointment of a guardian does not terminate parental rights and therefore, a guardian may not consent to an adoption of the child.

50.18.02 Petition for Guardianship - How to File

(a) Any person who is at least eighteen years of age who has an interest in a child may file a petition with the Court requesting that he or she be appointed as guardian.

(b) A petition filed by a married person shall also be signed by the married person's spouse, unless it is shown that the whereabouts of the married person's spouse are unknown.

(c) The Court Clerk shall deliver a copy of the petition to the Indian Child Welfare Department no later than three (3) days after the date on which the petition was filed with the Court.

50.18.03 Petition for Guardianship - Contents

The petition for appointment of a guardian shall include:

(a) The name, date of birth address, and tribal status of the child;

(b) The name, date of birth, address and tribal status of each of the petitioners;

(c) The name, date of birth, address and tribal status of the child's parents;

(d) The name and address of the child's current guardian or custodian;

(e) A description of any previous adjudication concerning the care and custody of the child;

(f) A concise statement of the facts and reasons supporting the request that the petitioner(s) be appointed as a guardian; and,

(g) A statement as to why the proposed guardianship is in the best interest of the child.

50.18.04 Setting the Guardianship Hearing

Upon receipt of the petition for guardianship, the Court shall set a date for a guardianship hearing which shall not be more than forty (40) days after the Court receives the petition. The Court shall also order that a home study be conducted at the expense of the Petitioner(s).

50.18.05 Guardianship Hearing - Summons

(a) Summons to appear at the guardianship hearing shall be given at least twenty (20) days before the hearing. The summons shall include:

(i) The nature of the proceedings of the court;

(ii) The date, time and place of hearing; and,

(iii) A copy of the petition which has been filed.

(b) The following persons shall be served with the required notice:

(i) The child's parents;

(ii) The child's current guardian or custodian;

(iii) The petitioner(s);

(iv) The Indian Child Welfare Department.

50.18.06 Intervention by Nisqually Indian Child Welfare Department

The Nisqually Indian Child Welfare Department is not required to be a party or witness in a guardianship case but may provide the Court with information and recommendations.

50.18.07 Guardianship Hearing - Procedure

(a) The prospective guardian(s), the child's parent(s), and the child's current guardian or custodian shall appear personally at the hearing.

(b) The Court shall examine and take testimony of the prospective guardian(s), the child's parent(s), the child's current guardian or custodian, and any other person the Court has found to have a substantial interest in the child.

(c) The Court shall consider all other evidence it deems is relevant to the best interest of the child, including the home study conducted in accordance with 50.18.04.

(d) In determining whether the proposed guardianship would be in the best interest of the child, the Court shall consider the placement preferences established in Subsection 50.09.09.

50.18.08 Guardianship Order

(a) The Court shall enter an order appointing guardian pursuant to the petition if it finds that the guardianship would be in the best interest of the child.

(b) The order appointing guardian shall place the child in the sole care, custody, and control of the appointed guardian.

(c) The order appointing guardian shall empower and charge the appointed guardian with the duty to make major decisions affecting the child including:

(i) To consent to marriage of the child, enlistment in the armed services and medical, surgical, dental and mental health treatment of the child;

(ii) To represent the child in legal actions and to make other decisions of substantial legal significance concerning the child;

(iii) To protect and preserve the child's property, to invest it prudently, and to account for it faithfully, and at the termination of the guardianship, to deliver the assets of the child or the person lawfully entitled thereto;

(iv) To fulfill all parental duties for the welfare of the child; and,

(v) To fulfill all other duties which the Court finds necessary to the circumstances of the child.

(d) The order shall inform the guardian that guardianship does not terminate parental rights and that the guardian may not consent to adoption or enroll the child in a Tribe other than the Nisqually Tribe.

(e) If the Court finds that the guardianship petition is not in the best interest of the child, the petition should be dismissed, provided, the Court may enter an order to protect the best interest of the child.

50.18.09 Review Hearings

The Court shall schedule a review hearing to be held within six (6) months of the guardianship order to determine whether the guardianship remains in the best interest of the child. The Court may schedule periodic review hearings thereafter as it deems necessary to stay informed of the child's situation.

Section 50.19 - Termination of Parental Rights

50.19.01 Purpose

Parental rights to a child may be terminated by the Court according to the procedures in this Section.

50.19.02 Termination of Parental Rights - How to File

Proceedings to terminate parental rights shall be instituted by a petition filed by the Indian Child Welfare Department on behalf of the Tribe, or by the parent(s) of the child. If the petition is filed by the child's parent(s), a copy of the petition must be delivered to the Indian Child Welfare Department no later than three (3) days after the petition has been filed.

50.19.03 Termination of Parental Rights - Petition Contents

(a) The petition for termination of parental rights shall state the following:

(i) The name, date of birth, address and tribal status of the child;

(ii) The name, date of birth, address and tribal status, if known, of the child's parent(s);

(iv) The name and relationship to the child of the person with whom the child is residing and the length of time at that location;

(v) A brief description of the facts supporting a finding that termination of parental rights is in the best interest of the child.

(b) A true and correct copy of the child's birth certificate shall be attached to the petition.

50.19.04 Setting the Termination Hearing

Upon receipt of a petition for termination of parental rights, the Court shall set a date for a termination hearing which shall not be more than forty (40) days after the Court receives the petition.

50.19.05 Termination Hearing - Summons

(a) Summons to appear at the termination hearing shall be given at least twenty (20) days before the hearing. The notice shall include:

(i) The nature of the proceedings of the court;

(ii) The date, time and place of hearing; and,

(iii) A copy of the petition which has been filed.

(b) The following persons shall be served with the required notice:

(i) The child's parents;

(ii) The child's guardian;

(iii) The Nisqually Indian Child Welfare Department;

(iv) The child advocate, if one has been appointed;

(v) Any person the Court believes necessary for the proper adjudication of the hearing.

50.19.06 Pre-Termination Report

After a petition for termination of parental rights has been filed, the Indian Child Welfare Department shall prepare a written pre-termination report. In preparing the report, the Indian Child Welfare Department shall conduct a complete home study and shall consult with the child's parent(s), the child's guardian or custodian, and all health, education and social services personnel who have had prior professional contact with the child. The report shall contain the following information:

(a) An evaluation of the present circumstances of the child, the child's parent(s), and the child's guardian or custodian;

(b) An evaluation of the allegations stated as the basis of the petition;

(c) The professional opinion of all personnel who have been consulted;

(d) A statement as to whether termination of parental rights would be in the best interest of the child.

50.19.07 Pre-Termination Report - Service

The Indian Child Welfare Department shall mail or deliver the pre-termination report to the Court and to all parties to the proceeding at least ten (10) days prior to the hearing.

50.19.08 Termination Hearing - Procedure

(a) The child's parent(s), and the child's guardian or custodian, if any, shall appear personally at the hearing.

(b) The Court shall examine and take testimony of the Indian Child Welfare Department, the child's parents, the child's guardian or custodian, the child advocate, and any person the Court has found to have a substantial interest in the child.

50.19.09 Termination of Parental Rights - Determining Factors

The Court may terminate a parent's parental rights when it has determined beyond a reasonable doubt that any of the following conditions exist:

(a) Abandonment of the child;

(b) Willful and repeated physical injuries which cause or create a substantial risk of death, disfigurement or impairment of bodily functions;

(c) Willful and repeated psychological or emotional abuse which causes or creates a substantial risk of severe psychological or emotional damage to the child, including, but not limited to, failure to thrive or attachment disorder;

(d) Willful and repeated acts of sexual abuse; or,

(e) Voluntary termination of parental rights.

50.19.10 Voluntary Termination of Parental Rights

(a) The parents of a child may voluntarily terminate their parental rights by signing a consent to termination of parental rights in the presence and with the approval of the Court. However, voluntary termination is not valid unless:

(i) The parents have received counseling from an appropriate professional who has explained the consequences of terminating his or her rights, has explored all available services to help the parent care for the child and has explored alternatives such as guardianship; and,

(ii) The parent orally explains his or her understanding of the meaning of termination of parental rights to the judge and the judge certifies that the terms and consequences of the relinquishment were fully explained and were understood by the parent.

(b) The parents may withdraw their consent anytime before entry of a final adoption decree.

(c) Consent given before or within thirty (30) days after the birth of a child is not valid.

(d) The Court shall not allow a parent to voluntarily terminate their parental rights unless the Court determines that it is in the best interest of the child to do so.

50.19.11 Disposition