CHAPTER
30: CHILD WELFARE CODE
CONTENTS:
Subchapter
I: Preamble
Subchapter II: Jurisdiction
Subchapter III: Definitions
Subchapter IV: Organization and Function of the Tribal
Court
Subchapter V: Termination of Parental Rights
Subchapter VI: Placement Preferences
Subchapter VII: Adoption
Subchapter VIII: Power of Attorney and Guardianship
Subchapter IX: Emancipation
Subchapter X: Additional Matters
Subchapter XI: Records
Subchapter XII: Committees and Workers
Subchapter XIII: Foster Care Standards
Subchapter XIV: Group Home Standards
Subchapter XV: Child Care Licensing
HISTORY
NOTE:
Current
Ordinance:
Resolution
2003-85, adopted June 17, 2003, adopts Tribal Code Chapter 30: Child
Welfare Code and rescinds all earlier Child Welfare Codes.
Resolution
94-118, adopted September 20, 1994, adopts Tribal Code Chapter 30: Child
Welfare Code and rescinds all earlier Child Welfare Codes.
Reenacted
as part of the Tribal Code July 5, 1995, effective immediately.
Prior
Ordinances:
The
Tribe's first child welfare ordinance, the Juvenile and Children's Code
of the Sault Ste. Marie Tribe of Chippewa Indians, a/k/a Tribal Child
Welfare Code, was adopted by Board motion on November 25, 1980.
Amendments:
Resolution
1-28-81G, adopted January 28, 1981, implemented the Code by establishing
the Sault Ste. Marie Tribal Children's Tribal Court to exercise jurisdiction
under the Tribal Child Welfare Code.
Resolution
1-26-83B, adopted January 26, 1983, authorized Chippewa County Department
of Social Services protective services workers to act on the Tribe's
behalf under the Tribal Child Welfare Code in emergency situations.
Resolution
7-27-83, adopted July 27, 1983, added an appeals section to the Code.
The
next Child Welfare Code was adopted by Board motion on September 20,
1984. Amendments:
Resolution
6-17-85A, adopted June 18, 1985, added the last sentence to '30.710(3).
Resolution
6-17-85B, adopted June 18, 1985, inserted the current language of '30.301(4)(h).
Tribal
Resolution 10-20-87G, adopted October 20, 1987, amended the last sentence
of '30.710(3).
Tribal
Resolution 10-20-87H, adopted October 20, 1987, set placement priorities
for adoptive placement [now included as Subchapter XII].
Resolution
2-07-89D, adopted February 7, 1989, set foster care placement priorities,
'30.1202.
Resolution
2-07-89E. adopted February 7, 1989, set adoption placement priorities,
'30.1202.
Resolution
1-23-90, adopted January 23, 1990, added Subchapter XI: Foster Care
Home Licensing.
Resolution
No. 93-32, adopted March 22, 1993, repealed Tribal Resolutions 2-07-89D
and 2-07-89E and amended ''30.1201 and 30.1202.
Cases:
In
the Interest of D.S.P., 166 Wis 2d 464. 480 NW2d 234 (Wis S Ct 1992).
Appeal of a TPR of a tribal member's parental rights (the Tribe was
not involved in the appeal). The TPR was affirmed; two tribal social
services workers were 'qualified expert witnesses' under the ICWA.
In
the Interest of D.S.P., 157 Wis 2d 106, 458 NW2d 823 (Wis Ct App
1990). Same case as above, in the Tribal Court of Appeals.
In
the Matter of Kraft, 148 Mich App 682, 384 NW2d 843 (1986). Appeal
of a TPR of a tribal member's parental rights (the Tribe was not involved
in the appeal). The TPR was upheld under ICWA standards; a tribal mental
health social worker is a 'qualified expert witness' under the ICWA.
In
the Matter of Morgan, 140 Mich App 594, 364 NW2d 754 (1985). Appeal
of the TPR of a tribal member's parental rights. The Tribe joined in
the appeal. The TPR was vacated for failure to follow the ICWA standards.
SUBCHAPTER
I: PREAMBLE
30.101 Preamble.
This Chapter
constitutes the law of the Sault Ste. Marie Tribe of Chippewa Indians
on matters related to the care, custody and control of minor members,
and children of members of the Sault Ste. Marie Tribe of Chippewa Indians.
It may be cited as the Sault Ste. Marie Tribal Child Welfare Code, Tribal
Code Chapter 30.
30.102 Purpose.
The Child
Welfare Code shall be liberally interpreted and construed to fulfill
the following expressed purposes:
(1) To
provide for the welfare, care and protection of the children and families
within the jurisdiction of the Sault Ste. Marie Tribe of Chippewa
Indians.
(2) To
preserve unity of the family, preferably by separating the child from
his parents only when necessary.
(3) To
take such actions that will best serve the spiritual, emotional, mental
and physical welfare of the child and best interests of the Tribe
to prevent the abuse, neglect and abandonment of children.
(4) To
provide a continuum of services for children and their families from
prevention to residential treatment, with emphasis whenever possible
on prevention, early intervention and community based alternatives.
(5) To
secure the rights of and ensure fairness to the children, parents,
guardians, custodians and other parties who come before the Tribal
Court under the provisions of this Chapter.
(6) To
provide procedures for intervention in those state court proceedings
regarding Indian children and for transfer of jurisdiction over Indian
children from state and other tribal courts to the Sault Ste. Marie
Tribal Court whenever deemed necessary and/or appropriate.
(7) To
recognize and acknowledge the Tribal customs and traditions of the
Sault Ste. Marie Tribe of Chippewa Indians regarding childrearing.
(8) To
preserve and strengthen the child's cultural and ethnic identity whenever
possible.
SUBCHAPTER II: JURISDICTION
30.201 Territorial Jurisdiction.
The Tribal
Court shall have exclusive and original jurisdiction of all child welfare
proceedings, elsewhere defined in this Chapter, when the subject child
is a resident of or domiciled upon the Tribal lands of the Sault Ste.
Marie Tribe of Chippewa Indians.
30.202 Jurisdiction - Personal.
The Tribal
Court shall have and exercise the jurisdiction asserted in the foregoing
sections of this subchapter over persons in the following manner:
(1) Within
the exclusive territorial jurisdiction of the Tribal Court, the Tribal
Court shall have jurisdiction over proceedings involving any Indian
child.
(2) Within
the concurrent jurisdiction of the Tribal Court, the Tribal Court
shall have jurisdiction over proceedings involving a child who is
a member of the Sault Ste. Marie Tribe of Chippewa Indians or who
is eligible for membership and is the biological child of a Tribal
member.
(3) The
Tribal Court shall also have limited personal jurisdiction of persons
involved in proceedings entertained by the Tribal Court.
(4) The
Tribal Court shall have ancillary jurisdiction over any parents or
guardian, whether Indian or not, of a child otherwise properly within
the jurisdiction of the Tribal Court, and over any other person entering
an appearance in the proceeding, whether directly or through counsel,
and over any person, properly served, whose compliance or cooperation
with the Tribal Court's order is essential to the exercise of the
jurisdiction of the Tribal Court over the proceeding of which the
Tribal Court otherwise has jurisdiction.
30.203 Concurrent Jurisdiction in Case of Conflict.
In all
child welfare proceedings arising within the concurrent jurisdiction
of the Tribal Court, the Tribal Court shall determine, by allegations
in the petition and by testimony, whether a prior action has been commenced
in a Court of the State of Michigan involving the same child. In the
event such a proceeding has been commenced in a state court, the Tribal
Court shall decline a petition to assert original jurisdiction, but
may direct the legal representative of the Tribe to seek transfer of
the case to the Tribal Court pursuant to the transfer provisions of
the Indian Child Welfare Act, 25 USC §1911. If no state court proceeding
has been commenced, the Tribal Court shall proceed as in cases within
its exclusive and original jurisdiction, provided personal jurisdiction
exists as set forth in §30.202.
30.204 Orders of Other Courts.
Orders
of other courts involving children over whom the Tribal Court could
take jurisdiction shall be recognized by the Tribal Court after the
Tribal Court has determined:
(1) That
the other court exercised proper subject matter and personal jurisdiction
over the parties, and
(2) Due
process was accorded to all interested parties participating in the
other court’s proceeding.
30.205 Tribal Interest.
Because
of the vital interest of the Tribe in its children and those children
who may become members of the Tribe, the statutes, regulations, public
policies, customs and common law of the Tribe shall control in any proceeding
involving a child who is a member of the Tribe.
30.206 Transferred Jurisdiction.
Child welfare
proceedings transferred to the Tribal Court pursuant to the Indian Child
Welfare Act, or the provisions of any other state or federal law shall
be deemed to have been commenced within the original and exclusive jurisdiction
of the Tribal Court, and further proceedings in the cause shall be identical
with proceedings originally filed in the Tribal Court.
30.207 Transfer to State Court or Other Tribal Court.
In any
proceedings before the Tribal Court, the Tribal Court may transfer the
proceedings 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.
30.208 Transfer from Other Tribal Courts.
The Tribal
Court may accept or decline, under the procedures set forth in this
Code, transfers of child welfare cases from other federal, state, or
tribal courts.
30.209 Jurisdiction - Subject Matter.
(1) The
Tribal Court shall have and exercise the jurisdiction asserted in
the foregoing sections of this Subchapter and over all proceedings
under this Chapter in which it is alleged that an Indian child is
alleged to be a child-in-need-of-care.
(2) The
Tribal Court shall also have jurisdiction of all proceedings, otherwise
within the jurisdiction of the Tribal Court, in which the following
relief is sought:
(a)
Termination of parental rights.
(b)
Adoption of an Indian child.
(c)
A determination of custody, other than in divorce, or appointment
of a custodian or guardian for a child.
(3) Jurisdiction
obtained by the Tribal Court over a child is retained until terminated
in any of the following situations:
(a)
the child becomes an adult; or
(b)
the case is transferred by the Tribal Court to another tribal court;
or
(c)
when the Tribal Court enters an order terminating jurisdiction.
(4) Tribal
Court jurisdiction may be retained until a child reaches the age of
19 years, or completes high school, with the consent of the child.
30.210 Jurisdiction - Severability - Saving Clause.
Each of
the numbered sections and subsections of this Chapter shall be deemed
to be discrete and severable. If any provision of this Chapter granting
or asserting jurisdiction, whether territorial, personal, subject matter
or otherwise, shall be held to violate federal law or the Constitution
and Bylaws of the Tribe, or the United States Constitution, by the final
decision of any federal tribal court, or if any such provisions shall
be held invalid by the Secretary of the Interior, the validity of each
and every other provision shall be unaffected thereby and all such other
provisions shall remain in full force and effect.
SUBCHAPTER III: DEFINITIONS
30.301 General Provisions.
For the
purpose of this Chapter, certain terms are defined in this subchapter.
When not inconsistent with the context, words used in the present tense
include the future, words in the singular number include the plural
number, words in the plural include words in the singular, and words
in the masculine gender include the feminine gender. The word "shall"
is always mandatory and not merely directory.
30.302 Abandoned.
"Abandoned"
means the failure of the parent to provide reasonable support and to
maintain regular contact with his or her child when such failure resulted
in destruction of the parental role with the child. Abandonment shall
be judged according to customary practices in the Indian community.
30.303 Adult.
"Adult"
means a person eighteen (18) years of age or older, or otherwise emancipated
by order of a court of competent jurisdiction.
30.304 Agency.
"Agency"
means the Anishnabek Community and Family Services Department of the
Sault Ste. Marie Tribe of Chippewa Indians or other appropriate agency
designated by the court.
30.305 Anishnabek Community and Family Services.
“Anishnabek
Community and Family Services” or ACFS provides social services
for the tribal members of the Sault Ste. Marie Tribe of Chippewa Indians.
30.306 Approved.
"Approved"
means having been reviewed and accepted by a designated inspecting authority
or an agency that has jurisdiction.
30.307 Caseworker.
"Caseworker"
means the protective services worker, social services worker, probation
officer, law enforcement personnel or any person who performs the duties
and responsibilities set forth in §30.1219.
30.308 Child.
"Child"
means a person who is less than eighteen (18) years old and who has
not been emancipated by order of a court of competent jurisdiction or
a child not born yet especially at the happening of some event.
30.309 Child Abuse.
“Child
abuse” means harm or threatened harm to a child’s health or
welfare by a parent, legal guardian, or any other person responsible
for the child’s health or welfare, or by a teacher or teacher’s
aide, that occurs through nonaccidental physical or mental injury; sexual
abuse; sexual exploitation; or maltreatment.
30.310 Child Born Out of Wedlock.
"Child
born out of wedlock" means a child conceived and born to a woman
who is unmarried from the conception to the birth of a child, or a child
determined by judicial notice or otherwise to have been conceived or
born during a marriage but who is not the issue of that marriage.
30.311 Child-in-need-of-care.
"Child-in-need-of-care"
means a child:
(1) Who
has no parent, guardian or custodian with legal authority able or
willing to care for him.
(2) Who
has not been provided with adequate food, shelter, clothing or medical
care or education necessary for his health and well-being.
(3) Whose
parent, guardian or custodian has knowingly, intentionally or negligently
subjected the child to abuse as defined in §30.309 or place the
child in a situation that endangers his life or health.
(4) Who
is without proper parental care and control or supervision because
of the disappearance or the prolonged absence of his parent, guardian
or custodian.
(5) Whose
parent, guardian or custodian is unable to provide for the child because
of incarceration or hospitalization for physical or mental condition.
(6) Who
has been sexually abused or exploited, negligently or intentionally
by parent, guardian or custodian.
(7) Who
has been placed in custodial care for the violation of the law as
a result of parental pressure, guidance or approval.
(8) Who
has been born and tested positive to alcohol, cocaine or any other
controlled substance.
(9) Whose
parents, guardian, or custodian’s alcohol and other drug abuse/addiction
interferes with a person’s ability to meet parental responsibility
and/or causes harm or threatened harm to the child.
(10)
Whose parent has been convicted of a crime of a nature that demonstrates
the parent’s unfitness to adequately parent the child.
(11)
Tribal Court jurisdiction may be established for a child whose parent’s
rights have been terminated involuntarily, or voluntarily at the point
of involuntary termination, for another child due to serious and chronic
neglect or physical or sexual abuse, and prior attempts to rehabilitate
the parents have been unsuccessful.
30.312 Child Passenger Restraint Device.
"Child
passenger restraint device" means a device which meets all the
requirements of Federal Motor Vehicle Safety Standard No. 213 entitled
"Child Seating Systems", 49 C.F.R. §71.213,(1984) as
amended, which performs satisfactorily in a dynamic test, and which
is appropriate for the size and physical condition of the child being
transported.
30.313 Child Protection Team.
The Child
Protection Team is a team established to involve and coordinate the
child protection services of various agencies.
30.314 Child Welfare Committee.
"Child
Welfare Committee" means a committee appointed by the Tribal Board
of Directors to protect the best interests of the children of the Tribe
and promote the stability and security of the Tribe as set forth by
this code.
30.315 Controlled Substance.
Substances
identified or defined as a “controlled substance” under the
provisions of P.A. 1978, No. 368 of the State of Michigan, as amended
to the date of the offense.
30.316 Counsel.
"Counsel"
means a person who has been recognized by the Sault Ste. Marie Chippewa
Tribal Court as qualified to represent individuals in proceedings before
the Tribal Court.
30.317 Court Appointed Special Advocate (CASA).
"Court
Appointed Special Advocate" means a person appointed by the Tribal
Court to represent the interests of a child who is before the Tribal
Court.
30.318 Custodian.
"Custodian"
means a person, other than a parent or guardian, to whom legal custody
of the child has been given.
30.319 Custody or Legal Custody.
"Custody
or legal custody" means the status created by order of the Tribal
Court or any other court of competent jurisdiction. Unless otherwise
specified by said court custody or legal custody vests the following
rights and responsibilities:
(1) The
right to have physical custody of the child.
(2) The
responsibility to provide the child with food, shelter, education
and ordinary medical care. In an emergency, a custodian shall have
the authority to consent to surgery or other extraordinary medical
care.
(3) Custody
does not include powers of a guardian as listed in Chapter 33 of the
Tribal Code.
30.320 Domicile.
"Domicile"
means a person's permanent home, legal home or main residence. The domicile
of a child is generally that of the custodial parent, guardian or custodian.
Domicile includes the intent to establish a permanent home or the place
where the parent, guardian or custodian considers to be his permanent
home.
30.321 Escalated Care.
Escalated
care is considered appropriate for adolescents who are unable to tolerate
the demands of family living and have emotional and/or behavioral problems
that can be handled in a therapeutic setting.
30.322 Extended Family.
"Extended
family" means a person who is the child's grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, or stepparent.
30.323 Father.
"Father"
means a man:
(1) Married
to the mother at any time from a child’s conception to the child’s
birth unless the child is determined to be a child born out of wedlock.
(2) Who
legally adopts the child.
(3) Whose
paternity is established in one of the following ways within time
limits, when applicable, set by the Tribal Court pursuant to this
Chapter.
(a)
The man and the mother of the child acknowledge that he is the child's
father in a writing executed and notarized and filed in the Tribal
Court or a court of competent jurisdiction.
(b)
The man and the mother file a joint written request for a correction
of the certificate of birth pertaining to the child that results
in issuance of a substituted certificate recording the birth identifying
the man as the child’s father.
(c)
The man acknowledges the child, without the acknowledgment of the
mother, with the approval of the Tribal Court or other court of
competent jurisdiction.
(d)
A man who by order of filiation or by judgment of paternity is determined
to be the father of the child.
30.324 Fictive Kin.
A “fictive
kin” is a person who is defined as a non-blood or non-marriage-related
adult who has a psychological/emotional bond with the child and is identified
as “family.”
30.325 Fire Alarm.
"Fire
alarm" means a device that is used to alert all persons in the
home of fire conditions. The device shall be heard in all parts of the
home that is used by children and care-giving staff.
30.326 Guardian.
"Guardian"
means a person assigned by a Tribal Court or other court of competent
jurisdiction, and having the duty and authority to provide care and
control of a child as set forth in Chapters 30 and 33 of the Tribal
Code.
30.327 Immediate Family.
“Immediate
family” members are parents, stepparents, siblings, half-siblings.
30.328 Indian.
“Indian”
means any person who is a member of an Indian tribe, or who is an Alaska
Native and a member of a regional corporation as defined in §1606
of Title 43.
30.329 Indian Child.
"Indian
child" means a child who is a member of a tribe or band that is
acknowledged to exist as a tribe or band by the United States Secretary
of the Interior or a historic tribe or band recognized by the Michigan
State Indian Commission, or a child who is eligible for such membership
who is the natural child of at least one parent who is a member or eligible
for membership in any such tribe or band.
30.330 Judge.
"Judge"
means a judge of the Sault Ste. Marie Chippewa Tribal Court.
30.331 Lay Advocate.
"Lay
Advocate" means a Tribal member who represents the parents, guardians
or custodians in the Tribal Court pursuant to Chapter 87.
30.332 Least Restrictive Alternative.
"Least
restrictive alternative" means the placement alternative, which
is the least restrictive method, in terms of restrictions to be placed
upon the child and family, of obtaining the objectives of the Tribal
Court and this Chapter.
30.333 Living Together Partner.
A “living
together partner” includes a boyfriend or girlfriend, regardless
of where the person resides, of the parent or person responsible for
the child’s health or welfare. If the above conditions are met
the LTP is also included in the definition of a person responsible for
the child’s health or welfare. The following persons are excluded
from the definition of LTP: the child’s parents, grandparents or
great-grandparents, brother or sister, aunt or uncle, or niece or nephew.
30.334 Minor.
A “minor”
means a person less than eighteen (18) years of age.
30.335 Multidisciplinary Team.
A “multidisciplinary
team” is a team established to assist in the prosecution of sexual
and physical abuse cases.
30.336 Parent.
"Parent"
means a person who is legally responsible for the control and care of
the child, including a mother, father, guardian, or custodian, including
a natural or adoptive parent, but does not include persons whose parental
rights have been terminated, nor does it include an unwed father whose
paternity has not been acknowledged or established.
30.337 Prosecutor.
"Prosecutor"
means the prosecuting official on behalf of the Sault Ste. Marie Tribe
of Chippewa Indians.
30.338 Sexual Abuse.
Any conduct
of a sexual nature that would be prohibited by Tribal, Federal or State
law.
30.339 Tribal Court.
"Tribal
Court" means the Sault Ste. Marie Chippewa Tribal Court established
by Chapter 80.
30.340 Tribe.
"Tribe"
means the Sault Ste. Marie Tribe of Chippewa Indians.
30.341 Tribal Council or Tribal Board.
"Tribal
Council or Tribal Board" means the Sault Ste. Marie Tribe of Chippewa
Indians Board of Directors.
SUBCHAPTER IV: ORGANIZATION AND FUNCTION OF THE TRIBAL COURT
30.401 Tribal Court Personnel.
(1) The
judge of the Tribal Court shall have the authority and duties as set
forth in this Chapter, in Tribal Code Chapter 36 and Chapter 80, or
inherent in the position of Tribal judge.
(2)
The Tribal prosecutor shall represent the Tribe in all proceedings
under this Chapter.
(3) The
Tribal Court clerk is the clerk of the Tribal Court who shall be responsible
for maintaining all child welfare records of Tribal Court. Child welfare
records will be kept separate from other court records.
30.402 Taking a Child into Custody.
(1) The
Tribal Court may order investigation and discovery, including but
not limited to, taking of photographs, gathering physical evidence,
and examinations or evaluations of a child, parent, guardian or custodian,
conducted by a physician, dentist, psychologist, or psychiatrist,
upon a showing of probable cause to believe that a child is a child-in-need-of-care,
which may be done ex parte.
(2) If
the Tribal Court finds probable cause to believe the child is a child-in-need-of-care,
and that the conditions in which the child is found present a substantial
risk of harm to the child’s life, physical health or mental well-being,
the Tribal Court may order the child be taken into custody, upon petition
by any person and signed by the Tribal Prosecuting Attorney, which
may be ex parte. The Tribal Court may include in such an order:
(a)
An authorization to enter a specified premises to remove the child,
(b)
Gather evidence, or
(c)
To place the child in protective custody pending preliminary hearing.
(3) A
child may be taken into protective custody without a Tribal Court
order by a law enforcement officer or caseworker if such person has
probable cause to believe the child is a child-in-need-of-care, and
(a)
Failure to remove the child may result in a substantial risk of
death, serious injury, or serious emotional harm, or
(b)
The parent, guardian or custodian is absent and it appears, from
the circumstances, that the child is unable to provide for his/her
own basic necessities of life, and no satisfactory arrangements
have been made by the parent, guardian, or custodian to provide
for such necessities and no alternative arrangements, except removal,
are available to protect the child.
(4) If
grounds for removal are corrected, the child may be returned to the
parent, guardian or custodian by the person originally authorizing
removal or by the caseworker.
(5) A
person who takes a child into custody without a Tribal Court order
shall make reasonable efforts to provide immediate notice to the Tribal
Court, parent, guardian, or custodian and/or child’s Tribe if
different than the Sault Ste. Marie Tribe of Chippewa Indians.
30.403 Substance Abuse Risk Assessment.
Allegations
of adults and parent/caregiver’s using or in possession of drugs/alcohol
residing in the child’s home may result in an assessment to determine
whether the child is at risk.
30.404 Duty to Report.
(1) Any
person who has a reasonable cause to suspect that a child is a child-in-need-of-care
shall immediately make a report to the Anishnabek Community and Family
Services Department or to the Tribal Police or other designated agency.
(2) Any
physician, nurse, dentist, optometrist, or any other medical or mental
health professional including a community health representative; volunteers
working with families; school principal, teacher or other official;
social workers; 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 including
probation officer; or a member of the Child Welfare Committee; who
has reasonable cause to suspect that a child may be a child-in-need-of-care
shall make immediately, by phone or otherwise, a report, or cause
a report to be made, of the suspected condition to the Anishnabek
Community and Family Services, Tribal Police or other designated agency.
(3) A
person mandated to report under §30.404(2) shall immediately
report to the Anishnabek Community and Family Services if the person
knows or has reason to suspect that a woman is pregnant and has abused
alcohol or used a controlled substance for a nonmedical purpose during
the pregnancy.
30.405 Child-in-need-of-care Report.
(1) Persons
mandated to report under §30.404 shall include the following
information if known:
(a)
Names, addresses, and tribal affiliation of the child and his parents,
guardian or custodian.
(b)
The child’s age
(c)
The nature of the actual or suspected child abuse or neglect
(d)
Previous abuse or neglect of the child or his siblings.
(e)
Name, age and address of the person alleged to be responsible for
the child’s abuse or neglect.
(f)
Name and address of the person or agency making the report.
30.406 Medical Examinations.
(1) Anishnabek
Community and Family Services may request a Tribal Court order for
a medical evaluation of a child pursuant to §30.1001 of this
Chapter. The caseworker shall have a medical evaluation done without
a Tribal Court order if the child’s health is seriously endangered
and a Tribal Court order cannot be obtained.
(2) When
a child suspected of a being a child-in-need-of-care is seen by a
physician, the physician shall make the necessary examinations, which
may include physical examinations, x-rays, photographs, laboratory
studies, and other pertinent studies.
(3) The
physician shall immediately report the results of the evaluation to
Anishnabek Community and Family Services, law enforcement or other
designated agency.
30.407 Testimonial Privileges Abrogated.
The physician-patient
privilege, husband and wife privileges, or any privilege except the
attorney-client privilege, both as they relate to the witness and to
the exclusion of confidential communications, shall not pertain in any
judicial proceeding in which a child's status as an abused or abandoned
child, or a child-in-need-of-care, is an issue.
30.408 Immunities.
(1) The
following persons are immune from civil or criminal liability for
actions or inaction’s in matters relating to child welfare:
(a)
The Child Welfare Committee and its individual members.
(b)
Judges and Tribal Court staff of the Tribal Court.
(c)
Anishnabek Community and Family Services or designated agency.
(d)
Others acting on the Tribe's behalf under this Chapter.
(e)
Persons filing petitions under this Chapter or providing information
to Tribal authorities regarding suspected child abuse or neglect.
(2) The
identity of a reporting person shall be confidential subject to disclosure
only with the consent of that person or by judicial process. A person
acting in good faith who makes a report and cooperates in an investigation
shall be immune from civil or criminal liability.
30.409 Initiation of Proceedings by Petition.
(1) Proceedings
in the Tribal Court involving child-in-need-of-care shall be initiated
by the filing of a petition signed by the prosecutor, or his designee.
(2) When
a child is in detention or custody, and filing of the petition is
not authorized by the prosecutor, the child shall be released.
30.410 Petition Content.
(1) Petitions
initiating proceedings in the Tribal Court shall contain the following
information:
(a)
The facts necessary to invoke the jurisdiction of the Tribal Court
together with a statement that the child is a child-in-need-of-care.
(b)
A plain and concise statement of facts upon which the allegations
are based including the dates and the location at which the alleged
actions occurred.
(c)
The child's name, birthdate and location.
(d)
The name and location of the child's parent or guardian, if known.
(e)
The name and signature of the prosecutor who approves the petition
and the date of approval.
(f)
Whether the child is in custody or detention and, if so, the place
and the time thereof.
(2) If
the petition requests the termination of parental rights, the petition
shall meet the requirements of sub. (1) and shall contain notice of
a request to terminate parental rights.
(3) The
petition shall be filed with the clerk of the Tribal Court.
30.411 Amendment to Petition.
When it
appears during the course of any proceeding under this Chapter that
an issue has been omitted from the petition or motions and appears from
the facts to be appropriate, the Tribal Court may on a motion by the
prosecutor or counsel for the child amend the petition or motions, and
proceed to hear and determine the additional or other issues, as though
originally and properly brought.
30.412 Dismissal of Petition.
A petition
alleging that a child is in need of care or supervision may be dismissed
for failing to comply with the requirements of §30.410.
30.413 Summons - Service.
(1) After
a petition is filed, the Tribal Court shall fix a time for a hearing
and shall direct the issuance of a summons.
(2) A
summons shall be issued to the child's parent or guardian when the
child is alleged to be a child-in-need-of-care. A summons shall be
issued to the child if over the age of twelve (12) years.
(3) A
summons issued to the child's parent or guardian or to the person
with whom the child resides shall require them to appear before the
Tribal Court and require the person with whom the child resides to
cause the child to appear before the Tribal Court unless the child's
presence is excused by the Tribal Court.
30.414 Notice of Hearing.
(1) Persons
Entitled to Notice: The Tribal Court shall insure that the following
persons are notified of each hearing.
(a)
The parent or guardian.
(b)
The attorney for the parent or guardian.
(c)
The child or the advocate for the child.
(d)
The petitioner and/or prosecuting attorney.
(e)
The responsible child placing agency.
(f)
Any other person the Tribal Court may direct to be notified.
(2) Notice:
Except for preliminary hearings, notice of hearing must be given in
writing which may be on the record or mailed to this last known address
at least seven (7) days prior to the hearing. At least 14 days prior
to a hearing on a petition to terminate parental rights.
(3) Failure
to Appear: When a party fails to appear in response to a notice of
hearing, the Tribal Court may order the party's appearance by summons
or subpoena.
30.415 Subpoenas.
(1) Any
party or the Tribal Court on its own motion may cause a subpoena to
be served on a person whose testimony or appearance is desired.
(2) A
person may waive notice of hearing or service of process. The waiver
shall be in writing, or on the record before the Tribal Court.
30.416 Subsequent Notices.
After a
party's first appearance before the Tribal Court, subsequent notice
of proceedings and pleadings shall be served on that party or, if the
party has an attorney, on the attorney for the party, either personally
or by ordinary mail, except that a summons must be served before trial
or termination hearing as provided in §30.413 unless a prior Tribal
Court appearance of the party in the case was in response to service
by summons.
30.417 Basic Rights.
(1) At
all stages of the proceedings in which a child is alleged to be a
child-in-need-of-care, the child's parent or guardian shall have the
right to be represented by counsel, at their own expense.
(2) In
all proceedings, the child and the child's parent or guardian shall
be entitled to introduce evidence, to be heard on their own behalf,
and to examine witnesses.
(3) In
all proceedings, the general public shall be excluded except persons
whose presence is requested by a party or persons who has a direct
interest in the proceeding.
(4) Any
extended family member shall be permitted to attend any hearings.
30.418 Discovery.
(1) Upon
written request, the respondent shall have the right to inspect, copy
and photograph social, psychiatric, psychological, medical, and school
reports and records concerning the child in the possession of the
prosecutor or other community official assigned to the case relating
to the child.
(2) If
a request for discovery is refused, application may be made to the
Tribal Court for an order granting discovery. Motions for discovery
shall certify that a request for discovery has been made and refused.
(3) The
Tribal Court may deny, in whole or part, otherwise limit or set conditions
on the discovery authorized upon a showing by a party upon whom the
request for discovery is made that granting discovery violates a privileged
communication.
(4) On
a motion of a party, the Tribal Court may permit discovery of any
other materials and evidence, including untimely requested materials
and evidence that would have been discoverable of right. Absent manifest
injustice, no motion for discovery will be granted unless the moving
party has requested and has not been provided the materials or evidence
sought through an order of discovery.
30.419 Miscellaneous Hearing Procedures.
(1) Electronic
Equipment - Support Person: The Tribal Court may allow the use of
closed circuit television, speaker telephone, or other similar electronic
equipment to facilitate hearings or to protect the parties. The Tribal
Court may allow the use of videotaped statements and depositions,
anatomical dolls, support persons, and take other measures to protect
child witnesses.
(2) Additional
Evidence: If at any time the Tribal Court believes that the evidence
has not been fully developed, it may:
(a)
Examine a witness,
(b)
Call a Witness, or
(c)
Adjourn the matter before the Tribal Court, and
(i)
Cause service of process on additional witnesses, or
(ii)
Order production of other evidence.
(3) Expert
Testimony: Subject to the Tribal Court’s prior review and approval
and availability of funds, an indigent parent may have appointed one
expert witness of his/her own choosing whose reasonable fees and expenses,
subject to the Tribal Court’s prior review and approval, shall
be paid from the Tribal Court funds.
(4) Impartial
Questioner: Upon motion of a party the Tribal Court may appoint an
impartial psychologist or psychiatrist to ask questions of a child
witness at a hearing.
30.420 Putative Fathers.
(1) If
at any time during the pendency of a proceeding, the Tribal Court
determines that the child has no father as defined by §30.323
the Tribal Court may, in its discretion, take appropriate action as
described in this Section.
(2) The
Tribal Court may take initial testimony on the tentative identity
and address of the natural father. If the Tribal Court finds probable
cause to believe that an identifiable person is the natural father
of the child, the Tribal Court will direct that notice be served on
that person. The notice will include the following information:
(a)
That a petition has been filed with the Tribal Court;
(b)The
time and place of hearing at which the natural father is to appear
to express his interest, if any, in the child; and
(c)
A statement that failure to attend the hearing will constitute a
denial of interest in the child, a waiver of notice for all subsequent
hearings and could result in termination of any parental rights.
(3) After
notice to the putative father, the Tribal Court may conduct a hearing
and determine that:
(a)
The putative father has been personally served or served in some
manner which the Tribal Court finds to be reasonably calculated
to provide notice to the putative father. If so, the Tribal Court
may proceed in the absence of the putative father.
(b)
A preponderance of the evidence establishes that the putative father
is the natural father of the child and justice requires that he
be allowed 14 days to establish his relationship to his child(ren);
provided that if the Tribal Court decides the interests of justice
so require, it shall not be necessary for the mother of the child
to join in an acknowledgment.
(4) The
Tribal Court may extend the time for good cause shown.
(a)
If there is probable cause to believe that another identifiable
person is the natural father of the child, the Tribal Court shall
proceed with respect to the other person.
(b)
If after diligent inquiry, the identity of the natural father cannot
be determined, the Tribal Court may proceed without further notice.
(5) The
Tribal Court may find that the natural father waives all rights to
further notice, including the right to notice of termination of parental
rights if:
(a)
He fails to appear after proper notice, or
(b)
He appears, but fails to establish paternity within the time set
by the Tribal Court.
30.421 Failure to Appear - Notice of Publication.
When persons
whose whereabouts are unknown fail to appear in response to notice by
publication or otherwise, the Tribal Court need not give further notice
by publication of subsequent hearings except a hearing on the termination
of parental rights.
30.422 Mother or Father Without Physical Custody.
A mother
or father of the child, who, at the time the child comes to Tribal Court,
does not otherwise fall with the definition of parent or party, and
whose parental rights over the child have not been terminated, must
be notified of the first hearing on the petition. Subsequent notice
need only be given when this person requests further notice.
30.423 Preliminary Hearing.
(1) If
the child has been released to his/her parent, guardian or custodian,
the Tribal Court shall conduct a preliminary hearing within ten (10)
days after filing of the petition.
(2) If
the child is placed in an out of home placement, the Tribal Court
shall conduct a preliminary hearing within 48 hours of placement or
upon the next working day, whichever is later, for the purpose of
determining:
(a)
Whether probable cause exists to believe the child is a child-in-need
of care.
(b)
Whether the home conditions continue to present a substantial risk
of harm to the child's life, physical health or mental well-being
and whether any alternatives except removal of the child is reasonably
available to adequately safeguard the child from such risk.
(3) If
the child's parent, guardian or custodian is not present at the preliminary
hearing, the Tribal Court shall make an inquiry into what efforts
have been made to notify and to obtain the presence of the parent,
guardian or custodian. If it appears that further efforts are likely
to produce the child's parent, guardian or custodian, the Tribal Court
shall recess for not more than two (2) days, excluding Saturdays,
Sundays, and legal holidays, and direct the petitioner to make continued
efforts to obtain the presence of the child's parent, guardian or
custodian. The preliminary hearing may be conducted in the parent's
absence.
(4) The
Tribal Court shall read the allegations in the petition in open Tribal
Court, unless waived and shall advise the parent of the right to have
counsel represent them at their own expense and their right to a trial
on the allegations in the petition. After advising the parent of the
right to remain silent, the Tribal Court shall allow the parent an
opportunity to deny or admit the allegations and make a statement
of explanation.
(5) If
the Tribal Court finds that probable cause exists to believe the child
is a child-in-need-of-care the Tribal Court:
(a)
Shall order the parent, guardian or custodian to appear at an adjudicatory
hearing on a date and time set by the Tribal Court.
(b)
May release the child in the custody of either the child's parents,
guardian or custodian under such reasonable terms and conditions
as are necessary for either the physical or mental well-being of
the child.
(c)
May order placement of the child with someone other than a parent,
guardian or custodian if the Tribal Court, after hearing, determines
that both of the following conditions exist:
(i)
Custody of the child with parent, guardian or custodian presents
a substantial risk of harm to the child's life, physical health
or mental well-being and no provision of service or other arrangement
except removal of the child is reasonable available to adequately
safeguard the child from such risk.
(ii)
Conditions of custody of the child away from parent, guardian
or custodian are adequate to safeguard the child's health and
welfare.
(6) The
Tribal Court may at any time after conducting a preliminary hearing
at which probable cause to proceed upon a petition is found, order
any involved child, parent or guardian to undergo a substance abuse
assessment, a physical, mental or psychological examination by a qualified
professional.
30.424 Pleas of Responsible or No Contest.
(1) A
respondent may make a plea of admission or of no contest to the original
charge in the petition. The Tribal Court has discretion to allow a
respondent to enter a plea of admission or a plea of no contest to
an amended petition. The plea may be taken at any time after the filing
of the petition provided that the petitioner and the attorney for
the child have been notified of a plea offer to an amended petition
and have been given the opportunity to object before the plea is accepted.
(2) Advice
of Rights and Possible Disposition: Before accepting a plea of admission
or plea of no contest, the Tribal Court must advise the respondent
on the record or in a writing that is made a part of the file:
(a)
Of the allegations in the petition;
(b)
That if the Tribal Court accepts the plea the respondent will give
up the right to:
(i)
Trial by a judge or trial by a jury.
(ii)
Have the petitioner prove the allegations in the petition by a
preponderance of the evidence.
(iii)
Have witnesses against the respondent appear and testify under
oath at the trial.
(iv)
Cross-examine witnesses.
(v)
Have the Tribal Court subpoena any witnesses the respondent believes
could give testimony in the respondent’s favor.
(c)
Of the consequences of the plea including that the plea can later
be used to terminate parental rights.
(3) Voluntary
Plea: The Tribal Court shall not accept a plea of admission or of
no contest without satisfying itself that the plea is knowingly, understandably,
and voluntarily made.
(4) Accurate
Plea: The Tribal Court shall not accept a plea of admission or of
no contest without establishing support for a finding that the child
comes within the jurisdiction of the Tribal Court, preferably by questioning
the respondent unless the offer is to plead no contest. If the plea
is no contest, the Tribal Court shall not question the respondent,
but, by some other means, shall obtain support for a finding that
the respondent committed the offense against the child.
30.425 Adjudicatory Hearing.
(1) The
Tribal Court shall conduct an Adjudicatory Hearing for the purpose
of determining whether the child is a child-in-need-of-care.
(2) The
Adjudicatory Hearing shall commence as soon as possible but not later
than 65 days after the petition is filed with the Tribal Court.
(3) Continuances
of an Adjudicatory hearing may be granted by the Tribal Court but
only:
(a)
Upon stipulation of the parties.
(b)
Where process cannot be completed.
(c)
Where the Tribal Court finds that the testimony of a presently unavailable
witness is needed.
(d)
One time only for up to fourteen (14) days at a parent's request
for parents to obtain counsel.
(e)
For good cause shown.
(4) The
general public shall be excluded from the proceedings and only the
parties, their counsel, witnesses, the child advocate and other persons
determined necessary or useful to the proceedings by the Tribal Court
shall be admitted.
(5) All
relevant and material evidence, which is reliable and trustworthy,
may be admitted at the hearing and may be relied upon by the Tribal
Court to the extent of its probative value.
(6) The
parties shall be afforded an opportunity to examine and controvert
written reports received by the Tribal Court and shall be allowed
to cross-examine individuals who made the reports when those individuals
are reasonably available.
(7) The
Tribal Court may rely upon conference telephone or other electronic
devices that permit all those appearing or participating to hear and
speak to each other.
(8) The
Tribal Court may proceed with the hearing in this absence of the parent,
guardian or custodian provided that proper notice was given pursuant
to §30.414.
(9) If
the allegations of the petition are sustained by a preponderance of
the evidence, the Tribal Court shall find the child to be a child-in-need-of-care
and schedule a Dispositional Hearing. The Tribal Court may also enter
orders of further discovery, evaluation and assessment and other orders
to protect the child.
(10)
If the allegations of the petition are not sustained, the Tribal Court
shall dismiss the matter and release the child.
30.426 Dispositional Hearing.
(1) A
Dispositional Hearing is conducted to determine measures to be taken
by the Tribal Court with respect to the child properly within its
jurisdiction and, when applicable, against any adult, once the Tribal
Court has determined following hearing, plea of admission or no contest
that the child comes within its jurisdiction.
(2) The
Dispositional Hearing may be held immediately after Adjudication.
The interval, if any, between the Adjudicatory Hearing and the Dispositional
Hearing is within the discretion of the Tribal Court. When the child
is in placement, the interval may not be more than 35 days except
for good cause shown. If the Dispositional Hearing is not held immediately
after the Adjudication, notice of hearing may be given by scheduling
it on the record in the presence of the parties or in accordance with
§30.414.
(3) All
relevant and material evidence, including oral and written reports,
may be received and may be relied on to the extent of its probative
value, even though such evidence may not be admissible at trial. The
Tribal Court shall consider the case service plan and any report by
an agency responsible for the care and supervision of the child concerning
efforts, to prevent removal, or to rectify conditions that caused
removal of the child from the home.
30.427 Disposition Orders.
(1) The
Tribal Court shall enter an order of disposition after considering
the case service plan and other evidence offered bearing on Disposition.
The Tribal Court may order compliance with all or part of the case
service plan and may enter such orders as it considers necessary in
the interest of the child. The Order of Disposition shall state whether
reasonable efforts have been made to prevent the child's removal from
his home or to rectify the conditions that caused the child's removal
from the home.
(2) If
a child has been found to be a child-in-need-of-care, the Tribal Court
may make a referral to the Michigan Family Independence Agency for
care, custody and control or make the following dispositions which
are listed by priority and shall warn about the potential consequences
of not following the orders:
(a)
Permit the child to remain with his/her parent(s), guardian or custodian,
subject to such conditions as the Tribal Court may prescribe.
(b)
Place the child with a relative within the primary service area
of the Tribe, subject to such conditions as the Tribal Court may
prescribe.
(c)
Place the child in a licensed foster home within the primary service
area of the Tribe, subject to such conditions as the Tribal Court
may prescribe.
(d)
Place the child in a foster home, or home of a relative, outside
of the primary service area of the Tribe, subject to such conditions
as the Tribal Court may prescribe.
(e)
Place the child in a group home or residential care facility designated
by the Tribal Court.
(f)
Direct the presenting officer to file a petition to terminate parental
rights under this Chapter.
(3) If
a child remains under the jurisdiction of the Tribal Court, an order
may be amended or supplemented within the authority granted to the
Tribal Court in this Chapter at any time as the Tribal Court considers
necessary and proper and in the best interests of the child.
(4) Reimbursement
for Care: Parents, custodians, or guardians may be ordered by the
Tribal Court to reimburse the Tribe and/or the Michigan Family Independence
Agency for the cost of care and placement. Reimbursement will be based
on a formula to be determined by the Tribal Court.
(5) Redirect
of Payments: Parents, custodians, or guardians may be ordered by the
Tribal Court to make child support payments for children placed with
relative or friends who are not eligible for foster care payments
or payments that are not sufficient to cover the cost of caring for
the children.
(6) Amendments:
If a child remains under the jurisdiction of the Tribal Court, an
order may be amended or supplemented at any time, as the Tribal Court
considers necessary and proper.
30.428 Disposition Review Hearing.
(1) The
Dispositional Order is to be reviewed at the discretion of the Tribal
Court but at least once every ninety (90) days.
(2) Notice
of the Review Hearing shall be provided on record or by ordinary mail
as provided in §30.414.
(3) At
a Review Hearing, the Tribal Court shall review on the record the
compliance with the case service plan and the previous orders of the
Tribal Court including:
(a)
Services provided or offered to the child and his or her parent,
guardian or custodian and whether they have complied with and benefited
from those services.
(b)
Visitation with the Child. If visitation did not occur or was infrequent,
the Tribal Court shall determine why visitation did not occur or
was infrequent.
(4) After
review of the case service plan, the Tribal Court shall determine
the extent of progress made toward alleviating or mitigating the conditions
that caused the child to become and to remain a child-in-need-of-care.
The Tribal Court may modify any part of the case plan including, but
not limited to, the following:
(a)
Prescribing additional services that are necessary to rectify the
conditions that caused the child to become or to remain a child-in-need-of-care.
(b)
Prescribing additional actions to be taken by the parent, guardian
or custodian to rectify the conditions that caused the child to
become or remain a child-in-need-of-care.
(5) At
a Review Hearing, the Tribal Court shall determine the continuing
necessity and appropriateness of the child's placement and may order
the return of the child to the custody of the parent, continue the
Dispositional Order, modify the Dispositional Order, or enter a new
Dispositional Order.
(6) If
the child remains in placement, the Tribal Court shall determine at
the Dispositional Hearing and at each Review Hearing whether the case
should be reviewed before the next review hearing required under this
Chapter. In making this determination, the Tribal Court shall consider,
but not be limited to, both of the following:
(a)
The parent's ability and motivation to make necessary changes to
provide a suitable environment for the child.
(b)
Whether there is a reasonable likelihood that the child may be returned
to his or her home prior to the next Review Hearing required by
this Chapter.
(7) An
agency report filed with the Tribal Court shall be accessible to all
parties to the action and shall be offered into evidence.
30.429 Permanency Planning Hearing.
(1) If
a child remains adjudicated a child-in-need-of-care and parental rights
to the child have not been terminated, the Tribal Court shall conduct
a permanency planning hearing not more than twelve (12) months after
entry of the order of removal and every ninety (90) days thereafter,
so long as the child remains a child-in-need-of-care. A permanency
planning hearing may be combined with a disposition review hearing
under §30.426.
(2) A
permanency planning hearing shall be conducted to review the status
of the child and the progress being made toward the child's return
to his natural parents or to some other permanent home.
(3) If
parental rights to the child have not been terminated and the Tribal
Court determines at a permanency planning hearing that the return
of the child would not cause a substantial risk of harm to the child's
life, physical health or mental well-being, the Tribal Court shall
order the child returned to his or her parent. In determining whether
the return of the child would cause a substantial risk or harm to
the child, the Tribal Court shall view the failure of the parent to
substantially comply with the terms and conditions of the case service
plan and Dispositional Orders of the Tribal Court as evidence that
return of the child to his or her parent would cause a substantial
risk of harm to the child's life, physical health or mental well-being.
(4) If
the Tribal Court determines at a permanency planning hearing that
the child should not be returned to his or her parent, the agency
shall propose one of the following alternative permanent placement
plans:
(a)
The child be placed permanently with a relative within the primary
service area of the Tribe.
(b)
The child be placed permanently with a relative who is outside the
primary service area of the Tribe.
(c)
The child remain in long-term foster or residential care.
(d)
A petition for Guardianship under Subchapter Viii be filed by the
current caretaker of the child, the child or Agency.
(e)
A petition to terminate parental rights under this Chapter be filed
by the Agency.
(5) If
the Tribal Court determines that the child should not be returned
to his or her parents, the Tribal Court shall order permanent placement
with a relative, long term foster or residential care, or continue
the child in placement with the agency for a limited period so that
petitions under §30.508 may be filed.
SUBCHAPTER V: TERMINATION OF PARENTAL RIGHTS
30.501 Preferred Right of Parents.
The purpose
of this subchapter is to provide for the voluntary and involuntary termination
of the parent-child relationship and for the substitution of parental
care and supervision by judicial process. This subchapter shall be construed
in a manner consistent with the philosophy that the family unit is of
most value to the community, and the individual family members, when
that unit remains united and together. Termination of the parent-child
relationship should be used only as a last resort, when, in the opinion
of the Tribal Court, all efforts have failed to avoid termination and
it is in the best interests of the child concerned to proceed under
this section.
30.502 Voluntary Relinquishment of Parental Rights.
(1) Voluntary
Relinquishment of Parental Rights: Parental rights may be voluntarily
terminated by a parent in writing, if signed by the parent in the
presence and with the approval of the Tribal Court. Relinquishment
shall not be accepted or acknowledged by the Tribal Court prior to
ten (10) days after the birth of the child. The Tribal Court shall
ensure that the parent understands the consequences of the voluntary
termination prior to approving it. A parent who wishes to relinquish
his/her parental rights shall be provided an interpreter if he/she
does not understand English. Prior to the entry of an order of termination,
the Tribal Court shall determine that entry of such an order is in
the best interests of the effected child(ren) and of the tribe.
(2) A
consent shall be dated and shall positively identify the party giving
the consent and the child who is being released for adoption.
(3) Withdrawal
of Voluntary Relinquishment: A parent who has voluntarily relinquished
parental rights to a child may withdraw such consent to termination
of parental rights at any time prior to the issuance of a final decree
of adoption and demand re-establishment of the parent-child relationship
upon a showing to the Tribal Court of clear and convincing evidence
that such consent was obtained by fraud or duress.
30.503 Involuntary Termination of Parental Rights.
The Tribal
Court may decree a permanent termination of parental rights as provided
herein concerning a child over whom the jurisdiction of the Tribal Court
has been invoked under this Subchapter. The rights of one parent may
be terminated without affecting the right of the other.
(a) Fact-finding
Step: Legally admissible evidence must be used to establish the factual
basis of parental unfitness sufficient to warrant termination of parental
rights. The proofs must be clear and convincing.
(b) Best
Interest Step: Once it is established that one or more grounds exists
to terminate parental rights of respondent over the child, the Tribal
Court shall order termination of respondents parental rights and order
that additional efforts for reunification of the child with the respondent
shall not be made, unless the Tribal Court finds that termination
is clearly not in the best interest of the child.
30.504 Grounds for Involuntary Termination of Parental Rights.
The Tribal
Court may terminate the parental rights of a parent to a child adjudicated
a child-in-need-of-care if the Tribal Court finds, by clear and convincing
evidence, one or more of the following:
(1) Abandonment:
The child has been abandoned under either of the following circumstances:
(a)
A parent of a child is unidentifiable and has deserted the child
for twenty-eight (28) or more days and has not sought custody of
the child during that period. For purposes of this section, a parent
is unidentifiable if the parent’s identity cannot be ascertained
after reasonable efforts have been made to locate and identify the
parent; or
(b)
The child has a court appointed guardian and the parent has failed
or neglected to provide any substantial support for the child for
two (2) years, if a support order has been entered, and the parent
has regularly and substantially failed or neglected to visit, contact,
or communicate with the child for two (2) years.
(2) Physical
Injury or Sexual Abuse: The child or a sibling of the child has suffered
physical injury or physical or sexual abuse under either of the following
circumstances:
(a)
A parent’s act caused the physical injury or physical or sexual
abuse and the Tribal Court finds that there is a reasonable likelihood
that the child will suffer from injury or abuse in the foreseeable
future if placed in the parent’s home; or
(b)
A parent who had the opportunity to prevent the physical injury
or physical or sexual abuse, failed to do so and the Tribal Court
finds that there is a reasonable likelihood that the child will
suffer injury or abuse in the foreseeable future if placed in the
parent’s home;
(3) Unrectified
Conditions: The parent was a respondent in a proceeding brought under
this chapter, twelve (12) or more months have elapsed since the issuance
of an initial disposition order or removal of the child, and the Tribal
Court, by clear and convincing evidence, finds either of the following:
(a)
The conditions that led the adjudication continue to exist and there
is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the age of the child; or
(b)
Other conditions exist that cause the child to be a child-in-need-of-care.
The parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent
has received notice, a hearing, and been given a reasonable opportunity
to rectify the conditions, and there is no reasonable likelihood
that the conditions will be rectified within a reasonable time considering
the age of the child.
(4) Failure
to Provide Proper Care: The parent, without regards to intent, fails
to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and
custody within a reasonable time considering the age of the child.
(5) Conviction
of Violent or Sexual Crime: A parent of the child is convicted of
a violent or criminal sexual crime against the other parent or a sibling
of the child.
(6) Conviction
of a Felony: A parent of the child is convicted of a felony of a nature
as to prove the unfitness of the parent to have future custody of
the child.
(7) Imprisonment
for More than two (2) Years. The Parent will be imprisoned for over
two (2) years and the parent has not provided for the child’s
proper care and custody, and there is no reasonable expectation that
the parent will be able to provide proper care and custody within
a reasonable time considering the age of the child.
(8) Parental
Rights to Sibling Terminated. Parental rights to one (1) or more siblings
of the child have been terminated due to serious and chronic neglect
or physical or sexual abuse, and prior attempts to rehabilitate the
parents have been unsuccessful.
(9) When
a child has been in foster care for fifteen (15) of the most recent
twenty-two (22) months.
30.505 Termination at Initial Disposition.
If a petition
to terminate parental rights to a child is filed, the Tribal Court may
enter an order terminating parental rights at the initial disposition
hearing.
30.506 Quality of Evidence.
The same
rules of evidence which apply at adjudication shall apply in termination
of parental rights proceedings.
30.507 Contents of Petition.
The petition
for termination of parental rights filed pursuant to this Subchapter
shall include to the best information and belief of the petitioner:
(1) the
name and address of the petitioner;
(2) the
name, sex, date and place of birth and location of the child;
(3) facts
establishing the Tribal Court's jurisdiction;
(4) the
relationship of the petitioner to the child;
(5) the
names and addresses and location of the parents if known;
(6) the
names and addresses of the person having legal custody or guardianship
of the child;
(7) the
grounds on which termination of the parent-child relationship is sought.
30.508 Supplemental Petitions for Termination of Parental Rights.
(1) If
the parental rights of the respondent over the child are not terminated
at the initial dispositional hearing, and the child is in foster care
in the temporary custody of the Tribal Court, the Tribal Court following
a dispositional review hearing or a permanency planning hearing may
take action on a supplemental petition that seeks to terminate parental
rights of respondent over the child on the basis of one or more grounds.
(2) Hearing
on Petition: The hearing on a supplemental petition for termination
of parental rights under this subchapter must be held within 42 days
after the filing of the supplemental petition. The Tribal Court may,
for good cause shown, extend the time period for an additional 21
days.
(3) Admissible
evidence must be introduced to prove the fact(s) alleged in the supplemental
petition.
30.509 Notice of Hearing on Termination of Parental Rights.
(1) After
the petition is filed, the Tribal Court shall set a time for a hearing
to determine whether the rights of a parent to a child should be terminated.
(2) Notice
in writing of the hearing shall be sent to the child and the parent(s)
in the manner prescribed by this Chapter, Tribal Court rule or the
Tribal Court.
(3) The
hearing shall be conducted in the manner prescribed by this Chapter,
Tribal Court rule or the Tribal Court.
(4) A
record of the proceedings shall be made and the parties shall be advised
of their basic rights, including assistance of counsel.
30.510 No Jury Trial.
There shall
be no right to a jury trial at proceedings held to consider the termination
of a parent-child legal relationship.
30.511 Order Terminating Parental Rights.
(1) An
order terminating parental rights under this Code may not be entered
unless the Tribal Court makes findings of fact, states its conclusions
of law, and includes the statutory basis for the order. The Tribal
Court may state the findings and conclusions on the record or include
them in a written opinion. If the Tribal Court does not issue a decision
on the record following the hearing, it shall file its decision within
twenty-eight (28) days after the taking of final proofs.
(2) Every
order terminating the rights of one or both parents shall be in writing
and shall include facts upon which the decree is based. An order terminating
the parent-child relationship shall divest the parent and the child
of all legal rights, privileges, duties and obligations with respect
to each other but shall not disentitle a child to any benefit due
the child from any third person, agencies, state or the United States,
nor shall any action under this Code be deemed to effect any rights
and benefits that the child derives from the child’s descent
from a member of a federally recognized Indian tribe.
30.512 Advise of Right to Appeal.
Immediately
upon entry of an order terminating parental rights, the Tribal Court
shall advise the respondent parent orally or in writing that the parent
is entitled to appellate review of the order. Appellate review shall
occur by right. The clearly erroneous standard shall be used in reviewing
the findings of the Tribal Court on appeal from an order terminating
parental rights.
30.513 Action of Tribal Court After Termination.
Upon the
entry of an order terminating the rights of a parent or parents the
Tribal Court may either:
(1) place
the child for adoption under the appropriate proceedings; or
(2) place
the child; or
(3) continue
the child in the custody of the remaining parent.
30.514 Post Termination Review Hearings:
If a child
remains a ward of the Tribal Court following the termination of parental
rights to the child, the Tribal Court shall conduct a review hearing,
at least every ninety-three (93) days to review the progress towards
permanent placement of the child. The Tribal Court shall make findings
on whether reasonable efforts have been made to establish permanent
placement for the child and may enter such orders as it considers necessary
in the best interests of the child.
SUBCHAPTER VI: PLACEMENT PREFERENCES
30.601 Applicability.
(1) This
Subchapter shall apply to all child custody proceedings under the
Indian Child Welfare Act, 25 USC §1901 et seq., as to which the
Sault Ste. Marie Tribe of Chippewa Indians is the Indian child's tribe.
(2) The
placement preferences set forth in &se