SISSETON-WAHPETON SIOUX TRIBE
CHAPTER 38
38-01-01 PURPOSE AND CONSTRUCTION
It is the purpose of this Juvenile Code to provide each child coming before
the Tribal Juvenile Court such case, guidance and control, preferably in his/her
own home, as will serve his/her welfare and the best interests of the
Sisseton-Wahpeton Sioux Tribe of the Lake Traverse Reservation; to preserve and
strengthen family ties; to preserve and strengthen the child's cultural and
Tribal, identity; to secure for any child removed from his/her home that care,
guidance, and control as nearly equivalent to that which he/she should have been
given by his/her parents to help him/her develop into a responsible,
well-adjusted adult; to improve any conditions or home environment which may be
contributing to his/her delinquency; and at the same time, to protect the peace
and security of the community and its individual residents from juvenile
violence or law breaking.
38-02-01 CRUELTY TO OR ABUSE OF A CHILD. INCLUDING AN UNBORN CHILD, OR MINOR
Any person who causes or permits a child to be:
1. Abused, exposed, torture, tormented, or cruelly punished;
2. Placed in or to remain in a situation that endangers his/her life, physical,
mental or emotional health;
3. Cruelly confined;
4. Deprived of necessary food, shelter or medical care;
5. Left unattended or unsupervised, if under the age of fourteen (14) years, in
circumstances that a prudent person would consider having a risk of substantial
harm to the child;
6. Subjected to sexual abuse, sexual molestation or sexual exploitation by
his/her parent, guardian, custodian or any other person; or
7. Subjected to mental injury by reason of any of the foregoing, is guilty of an
offense.
8. Placed at risk for birth defects by using alcohol and/or other substances
during pregnancy.
38-02-02 Any person convicted under 38-02-01 shall be sentenced to imprisonment for a minimum of one (1) year in jail or to a fine of five thousand dollars ($5000. 00), or to both such imprisonment and fine, plus court costs, except that the Judicial Approved court may suspend all or any part of such sentence if a pregnant woman is committed to protective custody under
38-03-01 DEFINITIONS
38-03-02 ABUSED CHILD - A child who is abused, exposed, tortured, tormented or cruelly punished; placed in or to remain in a situation that endangers his/her life, physical, mental or emotional health; cruelly confined; deprived of necessary, food, shelter or medical care; placed at risk for birth defect by mother's use of alcohol and/or other substances during pregnancy; left unattended or unsupervised, if under the age of fourteen (14), in circumstances that a prudent person would consider having a risk of substantial harm to the child; subject to sexual abuse, sexual molestation or sexual exploitation by his/her parent, guardian, custodian, or any other person or subjected to mental injury by reason of any of the following sections.
38-03-03 PHYSICALLY ABUSED CHILD - Is one found to be in one or more of the following situations:
1. Punishments of a nature that could be considered cruel and unusual;
2. A child who has clearly visible physical injuries or is knocked unconscious.
3. A child whose parents have failed to provide the child's basic needs for
food, shelter, and clothing;
4. A child, including an unborn child, whose health is endangered by exposure to
alcohol, drugs, tobacco; and/or
5. A child whose home life is dangerous (e.g., excessive drinking, excessive
numbers of people in the house, no food, etc.).
38-03-04 EMOTIONALLY ABUSED CHILD - Is one found to be in one or more of the following situations, dependent upon proof of parental or legal guardian action which has resulted in serious harm to the child:
1. A child whose parents fail to love, listen, guide, or pay attention to
him/her;
2. A child who receives no moral, spiritual or intellectual instruction from
his/her parents;
3. A child who is separated or isolated from other members of the family (locked
in or locked out);
4. A rejected child;
5. A child whose parents have unrealistic expectations of him/her;
6. A child whose parents or others verbally harass, tease, swear at, and/or
ridicule him/her;
38-03-05 SEXUALLY ABUSED CHILD - Sexual abuse of a child means any act however slight, of sexual intercourse, anal intercourse, masturbation, bestiality, sadism, masochism fellatio, cunnilingus, analingus, the filming or photographing of child engaging in a sex act or in the simulation of such act, any intrusion, however slight, of any part of the body or any object into the genital or anal openings of another person's body, any touching of the breasts or the genitalia or anus of any person with the intent to arouse; or gratify the sexual desire of either party and any other sexual activity including nudity if sexual activity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction. (SEE PENAL CODE, SECTION 26-15-02)
38-03-06 NUTRITIONALLY ABUSED CHILD - Is one found to be in one or more of the following situations:
1. A child, including an unborn child, whose parents provide inadequate or
inappropriate foods (e.g., alcohol, smokeless tobacco, excessive junk foods,
etc.);
2. A child whose parents misuse benefits intended for the child, including
selling or squandering food stamps, commodities, B.I.A., grocery orders, Aid to
Dependent Children, child support payments; and/or
3. A child who is expected to provide his/her own nutrition during prolonged,
unsupervised baby sitting for themselves and other children.
38-03-07 ACT - Means the Indian Child Welfare Act, P.L. 95-608.
38-03-08 ADJUDICATION - Means a finding by the court that the facts stated in the petition have been proven and that subsequent judgment has ensued.
38-03-09 ADULT - Means any person who has reached his/her eighteenth (18) birthday.
38-03-10 B.I.A. - Means Bureau of Indian Affairs
38-03-11 CHILD - Means a person who is enrolled in or eligible for enrollment in the Sisseton-Wahpeton Sioux Tribe, or any other Indian on the Reservation, who is less than eighteen (18) years of age, or any person still subject to the continuing jurisdiction of the Tribe Juvenile court, or, unless the context indicates otherwise, the unborn child of any such person.
38-03-12 CHILD CUSTODY PROCEEDING - Means any voluntary or involuntary administrative or judicial action which may result in the change of custody of a child, (temporary or permanent) from his/her parents) or other custodians, or, in the case of an unborn child, any administrative or judicial action which may result in a parent being taken into protective custody.
38-03-13 CHILD IN NEED OF SUPERVISION - Is a child found to be in one or more of the following situations:
1. A child who is habitually truant;
2. A child who is unamenable to parental control;
3. A child who is a habitual runaway;
4. A child who habitually so deports himself /herself so as to injure or
endanger the health or well-being of himself/herself or others.
38-03-14 CHILD PLACEMENT AGENCY - Means any agency licensed by the Tribe or the State of South Dakota to receive children for placement or adoption; the Sisseton-Wahpeton Sioux Tribe Child Protection Program, or any agency receiving children for placement or adoptions in another State, which agency is licensed or approved as required by law.
38-03-15 C.P.P. - Means the Child Protection Program of the Sisseton-Wahpeton Sioux Tribe.
38-03-16 COMMITTEE - Means the Judicial Committee of the Sisseton-Wahpeton Sioux Tribe.
38-03-17 COMMUNITY EXPERT WITNESS - Means an individual recognized by the Juvenile Judge of the Sisseton-Wahpeton Sioux Tribal Court as an expert in Tribal customs as they pertain to family organization and child rearing practices.
38-03-18 COURT - Means the Tribal Juvenile Court of the Sisseton-Wahpeton Sioux Tribe unless the Tribal or some other Court is clearly defined.
38-03-19 DELINQUENT CHILD - Means any child under the age of eighteen (18) years within the jurisdiction of the Court who violates any of the offenses enumerated in the Code of Offenses of a the Sisseton-Wahpeton Sioux Tribe, particularly those which apply only to children.
38-03-20 DEPENDENT CHILD - Is a child found to be in one or more of the following situations:
1. A child who is homeless or destitute or without proper support or care;
2. A child who lacks proper care by reason of the mental or physical condition
of the parent(s), guardian or custodian.
38-03-21 DEPRIVATION OF CUSTODY - Means transfer of legal custody by the Court from a parent or the parents or a previous custodian to another person, agency, or institution.
38-03-22 DETENTION - Means the temporary care in the Juvenile Center of children who require secure custody, in physical restricting facilities pending court disposition or transfer to another jurisdiction.
38-03-23 DIVERSION - Means any informal probationary status whose focus is to help a juvenile keep out of trouble without formal court action. Diversion covers any juvenile brought before the Court because of his own misconduct but not formally adjudicated.
38-03-24 ECAGWAYA OR "TRADITIONAL ADOPTION" - Means according to Tribal Custom, the placement of a child by his natural parents) with another family but without any Court involvement. After a period of two (2) years in the care of another family, the court, upon petition of the adoptive parents, will recognize that the adoptive parents, in custom or traditional adoption have certain rights over a child even though parental rights of the natural parents have never been terminated. Traditional adoption must be attested to by two (2) reliable witnesses. The court, in its discretion, on a case by case basis, shall resolve any questions that arise over the respective rights of the natural parents) and the adoptive parents) in the custom adoption. The decision of the Court shall be based on the best interests of the child and on recognition of where the child's sense of family is Ecagwaya is to raise or to take in as if the child is a biological child. The Court shall take "Judicial Notice" after proper due process proceedings, that, indeed, Ecagwaya is a custom and tradition of the Tribe.
38-03-25 EXTENDED FAMILY - Means any person related by blood or marriage to the family or any individual who is viewed by the family as a relative in accordance with customs of the Sisseton-Wahpeton Sioux Tribe. In situations where the relationship is not formally established by blood or marriage, the relationship must be attested to by two (2) reliable witnesses.
38-03-26 FOSTER CARE - Means the placement of a child in a family setting, temporarily or in a permanent foster care when the return of a child or children is not possible after a reasonable length of time, when adoption is not a possibility, when permanent guardianship is not possible and when emancipation is not possible.
38-03-27 GUARDIAN - Means a guardian of the person and not a guardian of property of estate.
38-03-28 GUARDIAN AD LITEM - Means individual appointed by the Courts to represent the best interests of the child in an advocacy role.
38-03-29 GUARDIAN OF THE PERSON - Also includes legal custody, if legal custody is not vested in another person, agency, or institution.
38-03-30 H.S.B. - Means the Human Service Board of the Sisseton-Wahpeton Sioux Tribe.
38-03-31 A.R.C. - Means the Adolescent Residential Center of the Sisseton-Wahpeton Sioux Tribe.
38-03-32 JUDGE - Means the Juvenile Judge of the Sisseton-Wahpeton Sioux Tribe.
38-03-33 LAY EXPERT WITNESS - Means an individual without extensive professional training, but who does have extensive experience in the delivery of child and family services to the Sisseton-Wahpeton Sioux Tribal community.
38-03-34 LEGAL CUSTODY - Means subject to any limitations which may be imposed by the Juvenile Court, a relationship embodying the following rights and duties:
1. The right to physical custody of a child.
2. The right and duty to protect, train and discipline a child.
3. The duty to provide a child with food, clothing, shelter, education, and
ordinary medical care.
4. The right to determine whether and with whom a child shall live.
5. The right in an emergency, to authorize surgery or other extraordinary care.
38-03-35 MINOR PARENT - Means a parent under the age of eighteen (18).
38-03-36 NEGLECTED CHILD - Is a child found to be in one or more of the following situations:
1. A child whose parents, guardian, or custodian fails or refuses to provide
necessary subsistence, education, or medical care, or any other care _necessary
for his health and well-being while capable of doing so;
2. A child who lacks adequate-parental control by reasons of the fault or habits
of his parent (s), guardian or custodian;
3. A child, under fourteen (14) years of age, who is left without competent
supervision overnight for other than emergency reasons;
4. A child exposed to physically dangerous situation as a result of parental
negligence;
5. A child, under fourteen (14) years of age, who is left alone or unsupervised
in a vehicle;
6. A child, including an unborn child, under eighteen (18) years of age who
accompanies his/her parents in a bar;
7. A child left with an irresponsible baby-sitter (e.g., baby-sitter is
intoxicated, too young, leaves child unattended, etc.);
8. A child, including an unborn child, under eighteen (18) years of age who is
allowed access to alcoholic beverages, drugs, or tobacco, excluding use for
medicinal or traditional practices;
9. A child who is eighteen (18) years of age, or under, judicial Approved who
has more than ten (10) unexcused absences from school in one quarter;
10. A child who is not dressed adequately for weather conditions;
11. A child who is allowed to be out and unsupervised after curfew;
12. A child who is not immunized from preventable diseases and whose parent(s)
or guardian fails to respond to three contacts and/or well-child clinic
appointments made by health providers, except in cases where the parent's
spiritual beliefs prohibit them from doing so and a signed statement to that
effect is documented in the child's medical record and in the Maternal/Child
Health Program's files.
38-03-37 OPEN ADOPTION - means those adoptive placements made through the Court when most, but not all parental rights have been terminated. Open adoption allows the Court to insure that an older child who has established bonds of affection with its natural parents is able to maintain a relationship with its natural parents, while at the same time becoming part of another family.
38-03-38 QUALIFIED EXPERT WITNESS - means a professional person having a substantial educational background in the area of his/her specialty and extensive-. Knowledge of prevailing social and cultural standards and child rearing practices of the Sisseton-Wahpeton Sioux Tribe.
38-03-39 PROBATION - means legal status of a child created by Court order following an adjudication based on a violation of the Code of Offenses of the Sisseton-Wahpeton Sioux Tribe, where the child is permitted to remain in its home under prescribed conditions and under supervision by a Probation Officer designated by the Court subject to return to the Court for violation of any conditions prescribed.
38-03-40 PROTECTIVE SUPERVISION - Means legal status created by Court Order following adjudication of neglect or dependency where the child is permitted to remain in his/her own home, and supervision and assistance to correct the neglect or dependency is provided by the Child Protection Program or other agency designated by the Court.
38-03-41 RESIDUAL PARENT RIGHTS AND DUTIES - Means those rights and duties remaining with parents after legal custody of guardianship, or both, have been vested in another person or agency including but not limited to, the responsibility for support, the right to consent to adoption, the right to determine the child's religious affiliation, and the right to reasonable visitations, unless restricted by the Court. If no guardian has been appointed, residual parental rights and duties also include the right to consent to marriage, to enlistment in the Armed Forces, and consent to major medical, surgical, or psychiatric treatment.
38-03-42 STANDARD ADOPTION - Means those adoptive placements occurring after all parental rights and obligations have been terminated by the Court.
38-03-43 TERMINATION OF PARENTAL RIGHTS - Means permanent elimination of all parental rights and duties, including residual parents rights and duties by Court Order, unless other wise decreed by the Court. The Court may, in its discretion, terminate parental rights while at the same time restricting adoptive placement to a family willing to allow the children continued contact with their natural parents.
38-03-44 PARENT - Means any biological parent (s); of an Indian child, or any person who has lawfully adopted an Indian Child, including ecagwaya placement.
38-03-45 SHELTER - Means the temporary care of children in foster group care facilities pending Court disposition or transfer to another jurisdiction.
38-03-46 STATE - Means State of South Dakota.
38-03-47 TRIBE - Means the Sisseton-Wahpeton Sioux Tribe.
38-03-48 RESERVATION - Means the Lake Traverse Indian Reservation, as established by Treaty of February 19, 1867.
38-03-49 CUSTODIAN - Means the person(s), agency or institution responsible for the care and supervision of the child.
38-03-50 PROTECTIVE SUPERVISION - Means a legal status created by Court order following adjudication of neglect, abuse or dependency and may be directed to an agency able to provide such supervision.
38-03-51 EMANCIPATION - Means the legal action by a court declaring a minor an adult capable of meeting his/her own needs. The Court may emancipate a minor upon demonstration that said minor can be responsible for meeting his/her needs. It may be conditional or absolute, complete or partial.
38-03-52 CONFIDENTIALITY - Means that no information regarding an individual(s) shall be released without the express consent in writing, attested to by the individuals) or their parents) or legal guardian. The Tribal Court shall review said consent and make its determinations accordingly. The Court may, at times, on its own motion, release or suppress any information requested in the best interests of justice to the child(ren). Confidentiality is also the responsibility of support staff and investigative agencies. They shall not reveal identities and sources without express consent of the court.
38-03-53 DISCOVERY IN CHILD WELFARE MATTERS - Discovery shall be permitted in child welfare cases by court order. Orders shall not be overboard nor excessively burdensome on the party from whom discovery is being sought, and shall consider the nature of the proceeding causing the need for discovery. Discovery orders shall be issued after notice to the opposing party and an opportunity for objection. The location and identity of foster homes shall not be discoverable unless the foster parents are identified as witnesses.
38-04-01 DUE PROCESS OF LAW TO AFFORDED
38-04-02 PROCEDURES ESTABLISHED
All procedures and provisions established herein shall be construed and
applied so as to provide due process of law to both children and adults subject
to this Juvenile Code:
1. Due process shall include the right to legal representation in accordance with the Tribal Code.
38-05-O1 JURISDICTION
38-05-02 ORIGINAL AND EXCLUSIVE JURISDICTION Except as otherwise specifically provided, the Juvenile Court shall have original jurisdiction over any Indian Child domiciled or residing upon or found upon the Reservation, or who has been transferred to the Juvenile Court under the Indian Child Welfare Act, and over all-persons having care, custody, or control of such child. The Sisseton-Wahpeton Sioux Tribe shall retain original and exclusive jurisdiction over children as wards of the Tribe not withstanding residence or domicile, sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the children), which it would have if the children) had remained on the Reservation. Such jurisdiction shall include the power to effect or cause the return of the child (ren) or transfer to another location and custody pursuant to laws) herein contained. The Sisseton-Wahpeton Tribal Court may effect the transfer of any court proceeding for the foster care placement of, termination of, parental rights or adoptive proceedings of any children) not domiciled or residing within the boundaries of the Sisseton-Wahpeton Sioux Tribe, in accordance with the provisions of the Indian child Welfare Act. The Sisseton-Wahpeton Sioux Tribal Court may also enter into agreements with court of other jurisdictions, wherein those courts will adjudicate the circumstances occurring within their jurisdictions then transfer the proceedings to the Tribal Court for disposition and/or placement. This will constitute a "bifurcated" hearing. The preceding shall include but is not limited to the following circumstances:
1. Concerning any child who has violated any Tribal, local, municipal
ordinance, within the jurisdiction of the Sisseton-Wahpeton Sioux Tribe.
2. Concerning any child who is a neglected or dependent child, as defined in
Section 38-03-01 of this Code.
3. Concerning any child who:
(a) Being subject to compulsory school attendance is habitually truant from school, or is defiant of persistent efforts by parents or school authorities; or
(b) Habitually disobeys the reasonable and lawful demands of his parents, guardian, or other custodian and is ungovernable and beyond their control to such an extent as to clearly endanger his own welfare or the welfare of others.
4. Proceedings to terminate the legal parent-child relationship, including
termination of residual parental rights and duties.
5. For the judicial consent to marriage, employment, or enlistment of a child
into the Armed Forces, and to emergency medical or, surgical treatment of the
Child who is under the custody of the Court.
6. The Juvenile Court shall also have original jurisdiction of the following
proceedings which shall be governed by the laws relating thereto without regard
to the other provisions of this Juvenile Code:
(a) Proceedings for the adoption of a child;
(b) Proceedings for the commitment of a mentally retarded or mentally ill child;
(c) All proceedings to determine the custody of or to appoint a legal guardian or custodian of the person of a child.
7. The definitions of Sections 38-02-01, 38-03-23, 38-03-24, 38-03-25, 38-03-26, 38-03-27, 38-03,28, 38-03-29, 38-03-30, 38-03-31, and 38-03-32, shall include those non-Indians male or female, under the age of eighteen (18) years, who are within the jurisdiction of the Tribe.
38-06-01 TRANSFER OF CASES
If, during the pendency of a criminal or quasi-criminal proceeding in the
Tribal Court, including a preliminary hearing, it shall be ascertained that the
person charged was less than eighteen (18) years of age at the time of
committing the alleged offense, the Court shall transfer the case to the tribe's
Juvenile Court, together with all papers, documents, and transcripts of a
testimony connected therewith. The Tribal Court shall order the person to be
taken forthwith to the Tribal Juvenile Court or to the Adolescent Residential
Center or shall release him/her to the custody of his/her parents) or guardian
or other person legally responsible for him/her to be brought before the Tribal
Juvenile Court at a time designated by it. The Juvenile Court shall then proceed
as provided herein.
38-07-01 TRANSFER
Exercise of jurisdiction over a child on probation or under protective
supervision or of a child who is otherwise under the continuing jurisdiction of
the Court, may be transferred by the Court to a Court of another jurisdiction if
the Court consents; or to any Court with proper jurisdiction over the child in a
pending action.
38-08-01 FELONY CASES
If the petition in the case of a child fourteen (14) years of age or older
alleges that he/she committed an act which would constitute a felony or a
serious misdemeanor if committed by an adult, and if the Court, after full
investigation and hearing, finds it would be contrary to the best interest of
the child or-the public; or the Tribe, to retain jurisdiction, the Court may
enter an order certifying to that effect and directing that the child be held
for criminal proceedings in the Tribal Court. The provisions of section 38-02-01
of the Juvenile Code and other provisions relating to Court procedures in
children's cases shall to the extent they are pertinent; be applicable to such
hearings held under this Section.
38-09-01 JURISDICTION OVER ADULTS
The Juvenile Court shall exercise jurisdiction over any adult in the
following cases:
1. In any criminal case which the offense is one designated for the
protection of children, and the Tribal Court certifies the case to the Juvenile
Court for disposition. In such cases, trial of the Adult in the Juvenile Court
shall be handled according to the Sisseton-Wahpeton Sioux Tribal Rules of
Criminal Procedure, and the Court may sentence the convicted adult in any manner
available to the Tribal Court. Certification of such cases shall occur only when
it is made to appear to the Tribal Court that some interest of the Juvenile
Court in a matter pending before it will be served thereby.
2. In any case in which a child has come within the jurisdiction of the Juvenile
Court, that Court shall have authority to exercise jurisdiction over adults to
the extent necessary or reasonably believed necessary to make proper disposition
of the case, including authority to punish for contempt, committed either in or
out of the Court's presence.
38-10-01 CONTINUANCE OR JURISDICTION
Jurisdiction obtained by the Court of a child through adjudication under
Section 38-21-01 of this Juvenile Code shall continue for purposes of this Code
until he/she becomes eighteen (18) years of age, unless terminated prior
thereto. The Court, may at its discretion continue jurisdiction after eighteen
(18) years of age when such continuance best serves the interests of both the
child and the Tribe.
38-11-01 TERMINATION OF JURISDICTION The continuing jurisdiction of the Court shall terminate:
1. Upon order of the Court which may be made at any time; or
2. Upon transfer of proceedings in felony cases under Section 38-05-01 of this
Juvenile Code. The continued jurisdiction of the Court is not terminated by
marriage; or
3. Upon the child's eighteenth (18th) birthday unless otherwise ordered by the
Court. When a person eighteen. (18) years of age or older who is under the
continuing jurisdiction of. The Juvenile Court pursuant to this Code violated
any Tribal, State, Federal, or local law, the Tribal Juvenile Court shall have
concurrent jurisdiction of the new offense.
38-12-01 JURISDICTION PROVIDED UNDER THE INDIAN CHILD WELFARE ACT
38-12-02 POLICY
It is the policy of the Indian Child Welfare Act to maintain the
relationship between Indian children and the Tribal and cultural communities
which they are otherwise tied. The Sisseton-Wahpeton Sioux Tribe, through this
Juvenile Code, commits itself to assuming jurisdiction over all those Indian
children, members of or eligible for enrollment in the Tribe, who are involved
in custody proceedings outside the territorial jurisdiction of the Juvenile
Court; and for whom a return to the jurisdiction of the Tribe is appropriate.
38-12-03 NOTICE OF HEARING TO THE SISSETON-WAHPETON SIOUX TRIBE
Whenever an involuntary child custody proceeding is initiated which may
result in the removal (permanent or temporary) of a child who is a member of or
eligible for enrollment in the Sisseton-Wahpeton Sioux Tribe from his/her parent
(s) or guardian, or Indian custodian, the petitioner shall notify the Juvenile
Court Judge of the Sisseton-Wahpeton Sioux Tribe by registered mail with return
receipt requested.
38-12-04 GUIDELINES TO THE COURT FOR THE ACCEPTANCE OR REFUSAL OF TRANSFER UNDER THE INDIAN CHILD WELFARE ACT
1. Reasons for Accepting Transfer
(a) Child has strong ties with Reservation and/or extended family;
(b) Child has recently moved from the Reservation;
(c) Child has been abandoned;
(d) Parents) request that child be returned and raised on the Reservation;
(e) Child desires to return to the Reservation;
(f) Child's on-reservation family is stable and strong;
(g) The Reservation has resources available to meet the needs of the child.
2. Reasons for Refusing Transfer
(a) Child is of mixed marriage where primary family ties and/or identity are
with the nonmembers;
(b) Child is old enough to reason and does not want to return to the
Reservation;
(c) Child has no ties with the Reservation;
(d) Child has multiple problems for which there are no possible on-reservation
program or resources;
(e) When either parent contests the transfer.
38-13-01 POWERS AND DUTIES
38-13-02 POWERS AND DUTIES OF THE TRIBAL COURT
The Tribal Juvenile Court shall have the same powers and duties as provided
for other Tribal Courts in this Law and Order Code.
38-14-01 JUDGES
38-14-02 RULES AND REGULATIONS
All rules and regulations pertaining to Judges in the Sisseton-Wahpeton
Sioux Tribal Code of Laws shall be applicable to the Judge of the Juvenile
Court. The Judge of the Juvenile Court shall render a decision no later than
ninety (90) days after a hearing involving a minor.
38-14-03 COOPERATION WITH OTHER AGENCIES
The Judge of the Tribal Juvenile Court may cooperate with the Federal
Government in any program for training personnel employed or preparing for
employment in the Tribal Juvenile Court, and may receive and expend funds from
Federal or State sources or from private donations for such purposes. Subject to
the approval of the Judicial Committee, the Judge of the Tribal Juvenile Court
may contract with public or nonprofit institutions of higher learning for the
training courses of its own, and may hire experts on a temporary basis for such
purposes; and may cooperate with Federal and State agencies in personnel
training programs.
38-14-04 PLACEMENT OF CHILDREN
1. In making a decision to place children in homes or institutions other
than with one or both of the natural parents of the child; the Court shall, in
all cases in which such action would not obviously be contrary to the child's
best interest, determine whether or not there are relatives, friends, or other
persons living on the Reservation who would be willing and able to provide .a
suitable temporary or permanent living environment for the child. The Court
shall give consideration to and due regard- for Tribal or family customs
relative to the raising of children and shall endeavor to place all children
requiring such homes with cultural backgrounds similar to that which the child
would have enjoyed if properly raised by its natural parent(s).
2. In order to enable the Court to place children in a manner consistent with the foregoing subsection, whenever possible, the Court shall utilize the Child Protection Program as its principal resource in the recruitment of Indian families suitable for child placement and willing to accept and care for children placed on either a permanent or temporary basis, or both. The Court shall, if necessary, determine the fitness of a home into which a child is to be placed at, or immediately prior to the time such placement is made. The Judge may contract, on behalf of the Tribe, with agencies or departments of the Federal Government, or with agencies or departments of the State of South Dakota or other States, for the care and placement of children whose status is adjudicated under this Code subject, however, to the approval of the Judicial Committee before expenditure of any Tribal Funds.
38-15-01 OTHER OFFICER APPOINTMENTS, SALARIES, AND DUTIES
38-15-02 APPOINTMENT OF PROBATION OFFICERS
The Judicial Committee with advice of the Chief Judge shall appoint such
Probation Officers, Clerks, and other persons as may be required to carry out
the work of the Court. Judicial Approved Probation Officers of Adult Tribal
Court may also serve for the Juvenile court, or other persons so appointed may
be appointed to serve with or without pay.
DUTIES AND POWERS OF PROBATION OFFICERS
The Probation Officer shall make preliminary inquiries and social studies
and such other investigations as the Judge may direct, and shall keep written
records of such studies and investigations, and shall make reports to the Judge
as provided in this Code or as directed by the Judge. Upon placing of any person
upon probation or under protective supervision, the Probation Officer shall
explain to the child, if old enough, and the parent(s), the meaning and
conditions of probation or protective supervision and shall give them necessary
instructions, the Probation Officer shall keep them informed concerning the
conduct and ` conditions of each person on probation or under protective
supervision and shall report thereon to the Judge, as -he/she may direct.
Probation Officers shall use all suitable methods to aid persons who are on
probation or under protective supervision to bring about improvement in their
condition, and shall perform such other duties in connection with the care and
custody, or transportation of children as the Court may require. Probation
Officers shall have the power of Police Officers of the purposed of this
Juvenile Code.
38-15-04 COURT ADMINISTRATOR (CLERK OF COURTS)
Duties for these officers are the same for the Juvenile court as described under
the Tribal Code for the Tribal Court.
38-15-05 COMPENSATION Amendment
The compensation and terms of employment of all employees shall be fixed by
the with the advice of the Chief Judge.
38-16-01 COURTS
38-16-02 SESSIONS
Court sessions shall be held within the Reservation, at the Tribal Court or
the ARC, except in those cases under the Indian Child Welfare Act which require
court presence in other jurisdictions. Court shall be scheduled under the
presiding Judge's direction.
38-16-03 FACILITIES
Suitable courtrooms for the hearing of cases, and office space, equipment,
and supplies for the use of the Judge, Officers, and employees of the Court
shall be addressed in the annual budget provided to the Tribal Council
38-17-01 ADULTS
38-17-02 PROCEDURES APPLICABLE
Except when specific procedures are otherwise specified in this Juvenile
Code, all matters concerning adults or the rights of any adult which comes
before the Juvenile Court need not be handled according to procedures
established for the Tribal Court, but may be handled in an informal manner as in
juvenile cases provided, however, that the court shall see to it that due
process standards are observed.
38-17-03 CONSENT TO JURISDICTION BY PERSONS LIVING OFF THE RESERVATION
Any adult living off the Reservation who obtains custody of a child from the
Juvenile Court either personally or as the result: of association with an agency
or institution to which such placement has been awarded, shall be deemed to have
consented to the jurisdiction of the Sisseton-Wahpeton Sioux Tribal Juvenile
Court for all purposes of actions in any way related to such custody of the
child subject thereto. In every placement through the Court, both custody and
ongoing jurisdiction shall remain with the Juvenile Court of the Tribe.
38-18-01 PROCEDURES
38-18-02 RULES OF PROCEDURE
The rules and forms governing practice and procedure and policies shall be
subject to review and adoption by the Tribal Council. Copies of such rules and
forms shall be made available for public inspection by the Clerk of the Juvenile
Court.
38-18-03 COMMENCEMENT OF ACTIONS
1. Except as otherwise provided hereafter, proceedings in children's cases
before the Juvenile Court are commenced by petition. All proceedings in Juvenile
Court shall be closed to the public.
2. In case of violation of motor vehicle or boating laws and ordinances, or fish
and game laws and ordinances, a petition shall not be required. The issuance of
a traffic or other citation or summons shall be sufficient to invoke
jurisdiction of the Tribal Court unless the Court shall otherwise order, no
preliminary investigation shall be required in such cases.
3. Whenever the court is petitioned by a police officer or any other person
alleging that a child is or appears to be within the Court's jurisdiction, the
Clerk of Courts shall notify a Probation officer or other designated person who
shall make a preliminary inquiry to determine whether the interests of the
public, the Tribe, or child require that further action be taken. The report on
the preliminary investigation shall be filed with the Court without unnecessary
delay.
4. The Court may determine that police reports or reports by other social
services related agencies having contact with or custody or supervision over a
child be filed with the Court in lieu of a preliminary investigation; in which
case, further preliminary investigation as provided herein shall not be required
unless otherwise specifically ordered.
5. As an alternative to filing a petition, the Court may, with the assistance of
Probation Officers or other designated individuals, make such non-judicial
adjustments of the case as is practicable without a petition and proceedings
thereunder. Such adjustments shall be made only in cases in which the facts are
admitted and -established prima facie jurisdiction in the Tribal Juvenile Court,
and further provided, that consent is obtained from the parents) or other
custodians also from the child, if in the Court's opinion, he/she is of suitable
age and discretion. Efforts to effect a non-judicial adjustment may not extend
for a period of more than six (6) months without the permission of the Judge of
the Juvenile Court who may extend such intervention.
6. Petitions- Consent. The petition shall set forth in simple and brief language
the facts which bring the child within the jurisdiction of the Court, as
provided in Section 38-05-02 of this Code. The petition shall further state:
(a) The name, age, and residence of the child;
(b) The names and residences of the parent(s);
(c) The name and residence of his/her guardian, if there is one;
(d) The name and address of the nearest known relative, if no parent or guardian is known;
(e) The name and residence of the person having physical custody of the child; and if any of the facts herein required to be stated are not known by the petitioner, the petitions shall so state.
38-18-04 VERIFICATION OF PETITION
The statements in the petition may be made upon information and belief and
the petition shall be verified.
38-18-05 PETITIONS
The petition may be prepared and filed by a Probation Officer, Police
Officer, parent, guardian, the Child Protection Program, or other Tribally
recognized agency or concerned individual with knowledge of the facts. At any
time after a petition is filed, the Court may make an order for temporary
custody of the child or, in the case of an unborn child, temporary protective
custody of the parent.
38-18-06 EXAMINATIONS
The Court may, upon such conditions of notice and hearing, if any, as it
deems best, order that a child concerning whom a petition has been filed shall
be examined by a physician, surgeon, psychiatrist or psychologist, and may place
the child in a hospital or other facility for such examination. The Court may
also order an examination of a parent or guardian whose ability to care for the
child is at issue if the Court finds evidence presented at the hearing that the
parents' or guardians' physical, mental, or emotional condition may ~ be a
factor in causing the neglect, dependency, or delinquency of the child. Such
examination may be ordered only for purposes of custody disposition and with
consent of the parent or guardian. Whenever an unborn child is the subject of an
examination, the unborn child may be examined without the consent of the parent.
38-18-07 PETITIONS - DISMISSAL
The Court may dismiss a petition at any stage of the proceedings.
38-18-08 PROFESSIONAL ATTORNEYS
Professional attorneys who have met the requirements of the Tribal Code may
appear in any proceeding before the Tribal Juvenile Court. When a person is
entitled to be represented by a professional attorney of his/her own choice and
at his/her own expense in the Tribal Juvenile Court, he/she shall be so advised
by the Judge at the commencement of any proceedings before such Court.
38-19-01 SERVICE OF PROCESS AND SEARCH WARRANTS
38-19-02 SUMMONS - WHEN REQUIRED
After a petition is filed and after such further investigation as the Court may
direct, the Court shall promptly issue a summons. No summons is required as to
persons who appear voluntarily or who file a written waiver of service with the
Clerk of Court at or prior to hearing.
38-19-03 SUMMONS - CONTENT - REQUIREMENTS
The summons shall contain the name of the Court, title of proceedings, and
(except for a published summons) a brief statement of the substance of the
allegations is the petition. A published summons shall simply state that a
proceeding concerning the child is pending in the Court and that adjudication
will be made. The summons shall require the person or persons who have physical
custody of the child to appear personally and bring the child before the Court
at a time and place stated. If the person so summoned is not the parent (s), or
guardian of the child, then a summons shall also be issued to the parent(s), or
guardian, as the case may be, notifying them of the pendency of the case and of
the time and place set for the hearing. No summons need be issued to a parents)
whose parental rights have been terminated.
38-19-04 SUMMONS - OTHER PERSONS
Summons may be issued to any person within the jurisdiction of the Court
requiring the appearance of any person whose presence the Court deems necessary.
38-19-05 IMMEDIATE CUSTODY OF CHILD
If it appears, from. The affidavit or sworn statement presented to the Judge,
that the welfare of the child requires placement in detention or shelter care of
other appropriate care, the Judge, when, a petition is filed, may endorse upon
the summons an order that an officer serving the summons shall at once take the
child or the parent of an unborn child into custody or may issue a separate
emergency custody or detention order for placement in a facility or with an
agent as designated by the court.
38-19-06 EMERGENCY CUSTODY OF CHILD
If it appears that a child, including an unborn child, is in danger for
whatever reason and if the Court is unavailable to issue a custody order; any
officer of the Court, including a Police Officer, a Probation Officer, or a
Child Protection Program worker, may make an emergency removal of a child, or
take the parent of an unborn child into protective custody, if such removal is
deemed necessary for the welfare of that child. Such removals shall be done on
an EMERGENCY basis only. The Officer and/or worker who makes an emergency
removal of a child shall submit a written report on the incident, along with a
petition for a custody order before the end of the next working day of the
Court. The Court shall make a temporary protective custody order at this time,
pending further disposition.
38-19-07 EMERGENCY MEDICAL TREATMENT
Upon sworn testimony of one or more reputable physicians, the Court may
order emergency medical or surgical treatment which is immediately necessary for
a child concerning whom a petition has been filed; pending the service or
summons and petition upon his/her parents, guardian, or custodian.
38-19-08 COMPULSORY ATTENDANCE OF WITNESSES
A parent or guardian shall be entitled to the issuance of compulsory process
for the attendance of witnesses on his/her own behalf or on the behalf of the
child. A guardian ad litem or a Probation Officer shall be entitled to
compulsory process for the attendance of witnesses on behalf of the children or
on behalf of the Tribe.
38-19-09 MANNER OF SERVICE - BY WHOM SERVED
1. Services of summons or process and the petition shall be made by a
Probation Officer but upon request of the Court, such service may be made by
another Peace Officer, or by another suitable person selected by the Court.
2. Services of summons and petition may be made by delivering a copy to the
person summoned; provided, however, that parents of a child living together at
their usual place of abode may be both served personally by delivering to either
parent, copies of the summons and petition; one copy for each parent.
3. If the Judge is satisfied that personal service of the summons and petition
is impractical under the circumstances he/she may order service by registered
mail, with return receipt requested, to be served. Service shall be completed
upon return to the-Court of the signed receipt.
38-19-10 SUBSTITUTED SERVICE - JURISDICTION
1. If the address of the parent or guardian is unknown, by sending a copy of
the summons and petition by registered mail with return receipt requested to be
signed by the addressee only, or by personal service outside the Reservation.
Service by registered mail shall be completed upon return to the Court of the
signed receipt.
2. If the address of whereabouts of the parents) or guardian outside the
Reservation cannot, after diligent inquiry, be ascertained, by publishing a
summons in a newspaper having general circulation on the Reservation. The
summons shall be published once a week for three (3) consecutive weeks. Service
shall be complete on the last day of the publication.
38-19-11 SERVICE - TIME REQUIRED
In the case of service on the Reservation, service completed no less than
forty-eight (48) hours before the time set in the summons for appearance of the
person served, shall be sufficient to confer jurisdiction. In case of service
outside the Reservation, service completed no less than five (5) days before the
time set in the summons for appearance of the person served, shall be sufficient
to confer jurisdiction.
38-19-12 SEARCH AND SEIZURE WARRANTS
If it appears to the Court upon an affidavit sworn to by a Police Officer or
any other person and upon examination of other witnesses, if required by the
Court, that there is probable cause to believe that a child is being detained or
ill-treated in any place within the jurisdiction of the Court, the Court may
issue a warrant authorizing a duly authorized Police Officer or Probation
Officer to search for the child. Upon serving such warrant upon the person in
possession of the premises, specified in the warrant, the officer making the
search may enter the house or premises, if necessary by force, in order to
remove the child. The officer must thereupon take the child to the Court or to
the place of detention or shelter designated by the Court in accordance with
Section 38-21-01 hereof.
38-20-01 INVESTIGATIONS AND HEARINGS
38-20-02 SOCIAL INVESTIGATIONS
Whenever practicable, the Court shall require that a social investigation be
made and a report be submitted to the Court in writing in all cases under
Section 38-05-02 of this Code in which a petition has been filed, except
violations of traffic, fish and game boating laws and ordinances.
38-20-03 SOCIAL INVESTIGATIONS - SCOPE
The investigations shall cover the child's home environment, history and
associations, present condition of the child's future care. In cases involving
the duty of support, the study shall include such matters as earnings, assets,
financial obligations and employment. Investigations shall be made by qualified
expert witnesses, as determined by the Court.
38-20-04 PROCEEDING - CIVIL IN NATURE
Proceedings in children's cases shall be regarded as civil proceedings with
the Court exercising equitable power. Children's cases under Section 38-05-02 of
this Code shall be handled separately from adult cases under Section. 38-0901
hereof.
38-20-05 CONDUCT OF HEARINGS - INFORMAL IN MANNER
Hearings in children's cases shall be before the Court without a jury and
may be conducted in an informal manner. The general public shall be excluded and
only such persons shall be admitted whom the Judge finds have a direct and
legitimate interest in the case or work of the Court. The child or one of his
parents may be separately interviewed at any time at the discretion of the
Court. The hearing may be continued from time to time, at a date specified by
the Court. The Court must find that an admission of allegation is voluntary and
knowingly given. The standard of proof for a juvenile offender's adjudicatory
hearing shall be proof beyond a reasonable doubt, and for all other hearings,
the standard of proof shall be clear and convincing evidence The Court will
dismiss the petition if the allegations are not established by the required
standard of proof-or proceed to the dispositional hearing if the allegations are
established by a valid admission or the required standard of proof.
38-20-06 HEARINGS - RECORD
A verbatim record by either stenographic or electrical or mechanical
recording device shall be taken in all cases processed through the Juvenile
Court. The Court may dispense with such record at its discretion but no sooner
than sixty (60) days after the time for appeal has expired. In no event shall a
record be dispensed with, if a case is to be further reviewed by the Court.
38-20-07 RECORDS - USE IN OTHER COURTS
Neither the record in the Tribal Juvenile Court nor any evidence given
therein shall be released for use in any proceedings in any court without the
express consent of the presiding judge in said case.
38-20-08 HEARINGS - TRIBAL COUNCIL
Upon the request of the Court, the Judicial Committee shall designate or
appoint an attorney who shall represent in the interests of a child in any
proceedings in a child's case, or within another Court's jurisdiction.
38-20-09 HEARING - EVIDENCE
For the purpose of determining proper disposition of the child, and for the
purpose of establishing the fact of neglect or dependency, written reports and
other materials relating to the child's mental, physical, and social history and
condition must be received in evidence; and must be considered by the Court
along with the other evidence, but the Court may require that the person who
wrote the report or prepared the material appear as a witness if he/she is
reasonably available.
38-20-10 CONSOLIDATION OF PROCESS
When more than one child is involved in a home situation which may be found
to constitute neglect, dependency, or when more than one child is alleged to be
involved in the same law violation, the proceedings may be consolidated, except
that separate hearings may be held with respect to disposition.
38-20-11 AMENDMENT TO PLEADING - CONTINUANCES
When it appears during the course of any proceeding in a child's case that
evidence presented points to material facts not alleged in the petition, the
Court may proceed to consider forthwith the additional or different matters
raised by the evidence. In such event, the Court, on motion of any interested
party, or its own motion, shall direct that the petition be amended to conform
to the evidence. The court shall grant such continuances as justice may require.
38-20-12 SPECIAL RULES OF PROCEDURE - TRAFFIC, FISH AND GAME, AND BOATING
ORDINANCE
The Court may adopt special rules of procedure to govern proceedings
involving violations by children of traffic law or ordinances, and violations of
fish and game, boating laws and ordinances.
38-20-13 PRESENCE OF PARENTS - PROTECTION OF CHILD
The Court shall endeavor to insure the presence at the hearing, of one or
both parents, or of the guardian of the child. If neither is present, the Court
may appoint a guardian ad litem to protect the interests of the child. A
guardian ad litem may also be appointed whenever necessary for the welfare of
the child; whether or not a parent or guardian is present.
38-20-14 GROUNDS FOR RE-HEARING
A parent, guardian, custodian, relative or friend of any child whose status
has been adjudicated under this Code or any adult affected by a decree in a
child's proceeding hereunder, may at any time, petition the Court for a new
hearing on the grounds that new evidence which was not known or could not, with
due diligence, have been made available at the original hearing and which might
affect the decree, has been discovered. If it appears to the Court that there is
such evidence which might affect the decree, it shall order a new hearing and
make all such dispositions of the case as is warranted by all the facts and
circumstances and the best interests of the child.
38-20-15 MAINTENANCE OF ORDER DURING HEARINGS
Upon request of the Court, the Chief of Tribal Police or his Deputy or other
Officer shall aid the court in maintaining order during any hearing.
38-21-01 ARREST AND DETENTION OF CHILDREN
38-21-02 ARREST OF CHILD
A child may be taken into custody by any Police Officer, Probation Officer,
duly sworn Security officer or Special Law Enforcement officer without order of
the Court in the following situations:
1. When, in the presence of the Officer, the child has violated a Tribal,
State, Federal, or local law or ordinance;
2. When there are reasonable grounds to believe that he/she has committed an act
which, if committed by an adult, would be a felony, or an offense under the
Sisseton-Wahpeton Sioux Tribal Code; and there is reasonable cause to believe
that such child, before a warrant or other Court can be obtained may:
(a) Flee the jurisdiction of the Court or conceal himself/herself to avoid arrest;
(b) Destroy or conceal evidence of the commission of an offense; and/or
(c) Injure or annoy another person or damage property belonging to another person.
3. When he/she is seriously endangered by his/her surroundings, and immediate
removal appears to be necessary for his/her protection;
4. When there is reasonable grounds to believe that he/she has run away from
his/her parents, guardian, or custodian.
38-21-03 CITIZEN'S ARREST OF CHILD
A private citizen may take a child into custody if the circumstances are
such that he/she could make a citizen's arrest if an adult were involved. Taking
a child into custody under this Section shall not be deemed an arrest.
38-21-04 NOTIFICATION OF PARENTS - RELEASE OF CHILD
When an officer takes a child into custody, he/she shall immediately notify
a parent or an adult person with whom the child lives if not the parent, or the
custodian. Such notification shall be made by contacting the parents) or
custodian personally or through the assistance of other officers or persons
unless notification can be and is, in fact, made by phone. If a parent or
custodian cannot, after due diligence be found or contacted, then such notice
shall be given to the nearest relative or to an adult person who is well
acquainted with the child. The parent or person notified shall be told why the
child has been taken into custody and where the child is being held. The child
shall then be released to the care of his/her parents) or other responsible
adult unless his/her immediate welfare of protection of the community requires
he/she be detained. Before the child is released, the parent or other person to
whom the child is released may be required by the person holding the child, to
sign a written promise on forms supplied by the Court, to bring the child to the
Court at a time set or to be set by the Court.
38-21-05 DETENTION OF CHILD
A child shall not be detained by the Tribal Police or at the police station
any longer than is necessary to obtain his/her name, age, residence, and other
identifying information and to contact his/her parents, guardian, or custodian.
If he/she is not thereupon released as provided in the preceding Section, he/she
must be taken without unnecessary delay to the Court or to the Adolescent
Residential Center or shelter designated by the Child Protection Program.
38-21-06 DETENTION IN JAIL
When it is absolutely necessary and in the best interest of a child and/or
the community for a youngster to be placed in the jail instead of the Adolescent
Residential Center, prior authorization must be granted by the Judge. In some
cases, a juvenile may be placed in jail due to:
1, being intoxicated
2. is high on drugs
3 is a danger to self
4 is a danger to others
5. is threatening to commit suicide.
Strict supervision must be provided to the child while incarcerated by either Adolescent Residential Center staff, Tribal Police Officers, and/or child Protection Program on call workers. As soon as the child is under control, he/she must be transferred to another juvenile facility, foster home, or returned to the natural parents.
38-21-07 DETENTION - REPORTS TO COURT
The officer or other person who takes a child to a detention or shelter
facility must notify the Court at the earliest possible opportunity that the
child has been taken into custody and where he/she was taken. The officer or
other person shall also promptly file with the Court a brief written report
stating the occurrences or facts which bring the child within the jurisdiction
of the Tribal Juvenile Court and give the reasons why the child was not
released.
38-21-08 RESTRICTIONS ON DETENTION
After immediate investigation by a duly authorized officer of the Court, the
Judge or other authorized officer shall, upon written promise to bring the child
to Court at a set time or without restriction, order the release of the child to
his/her parents, guardian, or custodian, if it is found that he/she can be
safely left in their care. If it is found that it is not safe to release the
child, the Judge or authorized officer may order that the child be held in the
Adolescent Residential Center or be placed in another appropriate facility,
subject to further order of the Court.
38-21-09 DETENTION - DISCRETION OF JUDGE
After immediate investigation by a duly authorized officer of the Court, the
Judge or other authorized officer shall, upon written promise to bring the child
to Court at a set tide or without restriction, order the release of the child to
his/her parents, guardian, or custodian, if it is found that it is not safe to
release the child, the Judge or authorized officer may order that the child be
held in the Adolescent Residential Center or be placed in another appropriate
facility, subject to further order of the Court.
THE FOLLOWING GUIDELINES SHALL HE MAINTAINED FOR DETENTION
1. During working hours when a child is in need of detention placement at
the ARC, the Court will hold an informal detention hearing to determine the need
and appropriateness of placement with approval of the Child Protection Program.
2. When a child is in need of detention placement during the night, on a
weekend, or on a holiday, the Child Protection Program on-call worker will be
notified for placement appropriateness and approval for continue placement.
3. No child shall be held in a placement facility for more than thirty (30) days
without a treatment plan (a copy of which will be filed with the Court.) If the
child needs to remain in a placement facility longer than the thirty (30) to
ninety (90) day placement, the decision will rest with the placement agency. The
main focus will be to rehabilitate and reintegrate the child into the natural
home and community. A review hearing will be held prior to the ninety (90) day
placement expiration. Monthly progress reports will be submitted to the Court
from the referring agency.
4. No child under the age of twelve (12) or over the age of eighteen (18) years
shall be placed in a juvenile facility, except in exceptional situations and
then only at the discretion of the appropriate placement agency.
5. In situations where a juvenile is not being charged with a crime, but is in.
need of temporary placement, the referring agency, may request alternative
placement for the juvenile providing that the juvenile is at least fourteen (14)
years of age. The Court shall order the referring agency to develop a treatment
plan with a copy to the Court within thirty(30) days.
38-21-11 PRIMARY CONSIDERATION - WELFARE OF THE CHILD
1. In placing a child under the guardianship or legal custody of an
institution, the Court shall give primary consideration to the welfare of the
child, and whenever practical, may take into consideration the religious
preferences of the child and his/her parent and shall consider the factors set
forth in Section 38-21-09 and 38-21-10.
2. No child found to come within the jurisdiction of the Court under Section
38-21-02 of this Code, shall be committed to, or placed in an institution or
facility established for the care and rehabilitation of delinquent children,
unless such child is found to be delinquent for the commission of an act that
would be a crime or an offense if committed by an adult or unless said child has
once before, within a period of six (6) months, been found to be within the
jurisdiction of the Court.
38-21-12 ESTABLISHMENT OF CONDITIONS OF THE COURT
In support of a decree under Section 38-21-02 of this Code, the Court may
make an order setting forth reasonable conditions to be complied with by the
parents, the child, his/her custodian, or other person who has been made a party
to the proceeding, including but not limited to, restrictions on the child's
associates, occupation, and other activities and requirements, to be observed by
the parents or custodians.
38-21-13 HOSPITALIZATION OF CHILD
With respect to a child within the jurisdiction of the Court-, under this
Section, the Court may order hospitalization in an authorized hospital if the
Court finds, upon due notice to parents or guardian and special hearing
conducted in accordance with any applicable laws and regulations, that the child
is:
1. Mentally ill;
2. Because of his/her illness, likely to injure himself/herself or others if
allowed to remain at liberty, or is in need of custody, care or treatment in a
mental hospital.
38-21-14 COMMITMENT
The Court may make an order committing a child within its jurisdiction to an
authorized agency if the child has been found mentally deficient in accordance
with the provisions of applicable laws and regulations.
38-21-15 TERMINATION OF PARENTAL RIGHTS
The Court may terminate all parental rights, provide it complies with the
provisions of Chapter 39 of the Sisseton-Wahpeton Sioux Tribal Law and Order
Code.
OTHER DISPOSITION OF CASES
The Court may make any other reasonable orders which are for the best
interests of the child or are required for the Judicial Approved protection of
the public, pursuant to Section 28-21-06. The Court may combine several of the
above listed modes of adopted disposition where they are compatible.
38-21-17 REVIEW OF CASES
An order under this Chapter for the placement of a child with an individual
or an agency shall include a date set for review of the case by the Court with a
new date to be set upon each review. As a guide, when extended custody is
maintained over juveniles reviews should be submitted to the Court at least
every three (3) months.
38-22-01 DISPOSITION OF CASES
38-22-02 FINDINGS OF JURISDICTIONAL FACTS (DISPOSITION OF CASE)
When a child is found to come within the provisions of Section 38-05-02 of
this Code, the Court shall so adjudicate and make findings of the facts upon
which it bases its jurisdiction over the child and shall enter its decree. Upon
such adjudication, the Court may make the following dispositions by Court order:
1. Place the child or in the case of an unborn child, the parent on probation
or under supervision in his/her own home, upon conditions determined by the
Court;
2. Place the child in the legal custody of a relative or suitable person, with
or within probation or protective supervision;
3. Vest placement rights over the child in the Child Protection Program, or a
child placement agency as defined herein, for placement in a foster home or
other facility, not including the South Dakota State Training School or any
institutions;
4. Commit the child to an authorized Government boarding school or training or
corrective institutions authorized to receive Indian children, except that a
child found to come within the Court's jurisdiction solely on. The grounds of
neglect or dependency under Section 38-05-02 of this Code, may not be committed
to any school or similar institution within or without the State, except for
reasons of delinquency and/or status offenses;
5. The Court may commit a child to an institution or facility for short-term
confinement, for the purpose of evaluation in accordance with accepted standards
for the care and treatment of delinquent children;
6. Place the child in an approved Indian boarding school, on a ranch, a forestry
camp, or other camp or similar facility, for care and for work, if possible,
provided that the person, agency, or association operating the facility has been
approved by the referring agency, or has complied otherwise with all applicable
Tribal laws;
7. If the Court has assurance that the responsibility to make payments will rest
on the child, and not his/her parents, guardian, or custodian, in order that the
child be required to make restitution for damages or loss caused by his/her
wrongful acts and may impose fines at its discretion;
8. Arrange for employment or work programs, to enable children to fulfill their
obligations under subsection (7) of this Section, and for other purposed which
deemed desirable by the Court;
9. In cases of violations of traffic laws or ordinances, the Court may, in
addition to any other disposition, restrain the child from diving for such
period of time as the Court;
10. Order that the child or in the case of an unborn child, the parent, be
treated by a physician, medical specialist, psychologist, counselor, or that
he/she receives other special care, and for such purposes may place the child,
the parent, in a hospital, primary residential treatment center, or other
suitable facility.
11. Appoint a guardian for a child or, in the case of an unborn child, the
parent where it appears necessary to do so in the interests of the child, and
may appoint a public or private institution or agency in which placement of the
child or, in the case of an unborn child, the parent is vested, as such
guardian.
38-22-03 REVIEW OF CASES
1. The period for review of a case shall be longer than every six (6)
months.
2. In any case where a child has been referred to a licensed social service
agency for adoptive placement and has not been placed within a one (1) year
period of time, the Court may transfer placement rights to another agency.
3. In any case situation where a parental rights have not been terminated and a
child continues under the care of social service agency, that agency will be
required to submit, at least every six (6) months, or at times specified by the
Court, a report indicating that services have been offered to the child's family
and describing the reasons for continued out-of-home placement.
38-23-01 JUDGEMENT AND ORDERS
38-23-02 JUDGEMENT
No judgement order, or decree of the Tribal Juvenile Court shall operate
after a child becomes eighteen (18) years of age unless the Court deems that it
is in the best interest of the individual or the Tribe to continue its
jurisdiction.
38-23-03 ORDERS - TERMINATION - RENEWALS
An order vesting placement of a child in an individual agency, or
institution shall be for an indeterminate period, but shall not remain in force
longer than two (2) years from the date in is entered, unless with two (2) year
period, the Court, after notice to the parties and a hearing, shall have
reviewed the order and found its renewal necessary to safeguard the welfare of
the child or the public interest, in which case, the order shall be extended for
a two (2 ) year period. The findings of the Court and the reasons therefore
shall be entered into the record with the review order or with the order denying
renewal. An order placing the parent of an unborn child in protective custody
shall be terminated or renewed or otherwise changed in accordance with, Chapter
36, The Alcohol and Drug Treatment Act.
38-23-04 ORDERS - MODIFICATION
The Court may set aside or modify any order or decree made by it; but no
modification of an order placing a child on probation shall be made upon an
alleged violation of the terms of probation, until there has been a hearing
after due notice to all persons concerned. Notice and hearing shall be required
in any other case in which the effect of modifying or setting aside an order,
may be to deprive a parent of the legal custody of the child, to place the child
in a child care facility or agency, or to transfer the child from one
institution or agency to another; except that transfer from one foster home to
another may be effected without notice and hearing.
38-23-05 ORDERS OF TERMINATION - NOTICE
Notice of an order terminating probation or protective supervision shall -be
given to the parents, guardian, custodian, and where appropriate, to the child.
38-23-06 EMERGENCY CUSTODY ORDERS
No child shall be held in custody for longer than one (1) year under an
emergency custody order unless by special order. This provision shall be in
effect for those emergency custody petitions filed after the date of enactment
of this provision. The duration of any emergency custody order taking the parent
of an unborn child into protective custody shall be subject to Chapter 36, The
Alcohol and Drug Treatment Act.
38-23-07 COURT ADJUDICATION - NOT CRIMINAL IN NATURE
An adjudication by the Tribal Juvenile Court that a child is within its
jurisdiction under Section 38-05-02 of this ordinance shall not be deemed a
conviction of a crime.
38-24-01 SUPPORT OF CHILDREN
38-24-02 BY PARENTS
When placement of a child is vested by the Court in an individual or agency
other than his/her parents or Government Boarding Schools, the Court may at the
initial hearing or any subsequent proceeding inquire into the ability of the
parents or any other person who may be obligated, to support the child and pay
any other expenses of the child, including the expenses of medical, psychiatric,
or psychological examination or treatment, provided under order of the Court.
The Court may, after due notice of a hearing on the matter, require the parents)
or other person to pay the whole, or part of such support and expenses,
depending upon their financial resources and other demands on their funds. The
amount so required to be paid at such intervals as the Court may direct, and
unless otherwise ordered, payment is to be made to the Clerk of the Tribal
Juvenile Court for transmission to the person or agency having placement of the
child or to whom compensation is due. The Clerk of Court shall have authority to
receive periodic payments toward the care and maintenance of the child, such as
social security payments made in the name of or for the benefit the child.
38-24-03 PROCEDURE FOR PAYMENT
No Court order issued under the preceding Section against a parent or other
person shall be entered unless summons has been served, a voluntary appearance
is made, or a waiver of service is given. The summons shall specify that a
hearing with respect to the financial support of the child will be held.
38-24-04 ENFORCEMENT OF SUPPORT ORDERS
1. An order entered under Section 38-24-02 and 38-24-03 against a parent or other person may be enforced by contempt proceedings, and shall also have the effect of a civil judgement at law. In addition to other remedies, the Court may issue an order to any employee, trustee, financial agency, or other person, firm, or corporation indebted to the parent or parents, or indebted to any other person ordered to make payments under this Code, to withhold and pay over the Clerk of Court, money due or to become due in excess of the lesser of the following:
(a) The amount ordered to be paid by the Court under Section 38-24-02 and 38-24-03 hereof; and
(b) One-forth (1/4) of the amount due or becoming due the parent or other person at each regular or usual payday or day of disbursement.
38-24-05 SUPPORT FROM OTHER SOURCES
If the Court finds that the parents) are unable to pay for full or partial
support, examination, treatment, and other expenses for the child, and that no
other provision for the payment of such support has been made, or if the
parents) or other person obligated to pay under Court order issued under this
Chapter, have failed to make such payment, or if summons could not be served
upon the parents) or other persons under Section 38-24-03 hereof, the Court
shall request the Child Protection Program or any other tribal or Public agency
or department of the United States, or the State with funds available for such
purposes to pay for such support and other expenses and if such department or
agency consents, it shall be so ordered by the Court.
38-24-06 PAYMENT DIRECTLY TO AGENCY - REPORT TO COURT - VISITS
Payments for child support may be made to a non-governmental agency in whom
the Court vests legal custody, provided that the agency shall make periodic
reports to the Court concerning care and treatment the child is receiving and
his/her response to such treatment. Such reports shall be made at such intervals
as the Court may direct, and shall be made with respect to every child at least
every three (3) months. The agency shall also afford an opportunity for a
representative of the Court to visit the child as frequently as the Court deems
necessary.
38-25-01 APPEALS
38-25-02 PROCEDURES OF APPEALS
An appeal to the Tribal Court of Appeals may be taken from any order,
decree, or judgement of the Tribal Juvenile Court. Such appeal shall be taken in
the same manner in which appeals are taken from judgements or decrees of the
Tribal Court. Except as provided in Chapter 38 of this Code, the appeal must be
taken within thirty (30) days from the entry of the order, decree, or judgment
appealed from.
38-25-03 STAY PENDING APPEAL
Unless the Court stays its order, the pendency of an appeal shall not stay
the order or decree appealed from in a child's case. Where the order or decree
appealed from directs a change of legal custody of a child or order the
protective custody of a parent of an unborn child, the appeal shall be heard and
decided at the earliest practical time. The name of the child or of any parent
of an unborn child taken into protective custody will not appear on the record
of appeal.
38-26-01 MISCELLANEOUS PROVISIONS
38-26-02 DISOBEDIENCE - CONTEMPT
Any person who willfully violates or refuses to obey any order of the Court,
may be proceeded against for Contempt of Court. In the case of a juvenile on
probation disobedience of rules of probation shall be grounds to terminate the
probation.
38-26-03 PAYMENT OF FINES, PENALTIES, ETC.
Except as other wise provided by law, penalties and forfeiture imposed and
collected by the Court shall be considered as Tribal Court revenue for the
Tribal Court budgeting considerations. All Court revenues will be remitted to
the Tribal Treasurer on a weekly basis for deposit to the Tribal Court account,
as stated in Chapter 21, Section 21-15-04.
38-26-04 FILING FEES - WITNESS FEES, ETC., BY WHOM PAYABLE
There shall be no fees for filing a petition under Section 38-05-01 of this
Code, nor shall any fee be charged by any Tribal officers for such services of
process or for attendance in Court in any such proceedings. The cost of
publication of summons and expense of a trial of an adult person, when approved
by the Court, shall be paid by the Tribe.
38-26-05 RECORDS TO BE KEPT - ACCESSIBILITY
The Court shall keep records as may be required by the Judge. Records in
children's cases shall be withheld from public inspection, but said records may
be open to inspection by parents or guardians, and/or Attorneys involved in the
proceedings and agencies to which placement or supervision of a child has been
transferred may also have access to records; with careful monitoring by the
presiding Judge.
38-26-06 JUVENILE COURT RECORDS
Except as provided in Section 38-26-05, the Court records shall be sealed and
may be opened only at the discretion of the Judge and only upon a petition to
the Juvenile court, indicating the reasons for opening the records.
38-27-01 INFORMAL ADJUSTMENT HEARING
The Court may appoint a Hearing officer, who may hold informal conferences
with the minor and his/her parent(s), guardian or custodian to consider
alternatives to filing a petition if:
1. The admitted facts bring the case within the jurisdiction of the Court;
2. An informal adjustment of the matter would be in the best interest of the
minor and the Tribe;
3. The minor and his parent (s), guardian or custodian consent to an informal
adjustment with knowledge that the consent is voluntary. The alternatives may
consist of but are not limited to the following:
(a) Refer the minor, parent (s), guardian or custodian to a community agency for needed assistance.
(b) Order terms of supervision, calculated to assist and benefit the minor, which regulate the minor's activities, those activities to be within the ability of the minor to perform;
(c) Accept and monitor an offer of restitution if voluntarily made by the minor.
38-27-02 The Hearing Officer shall set forth in writing the adjustment agreement and conclusions reached at informal conferences and the disposition agreed to by the parties for remedying the situation. An informal adjustment period shall be six (6) months, unless said time is extended by the Court. The Hearing Officer shall review the minor's program every thirty (30) days. If at any time after the initial thirty (30) day period, but before the end of six (6) months, the Hearing officer concludes that positive results are not being achieved, the Hearing Officer shall recommend that a petition be filed.
38-28-01 NON-DISCLOSURE
The name of any person who reports suspected child abuse shall not be
disclosed to any person unless the person who reported such abuse specifically
requests such disclosure or a judicial proceeding results from such report.
38-29-01 REPORT AN INVESTIGATION
Reports may be made to the Tribal Court Prosecutor, a Police Officer, Social
worker, or the Child Protection Program., Anyone participating in good faith in
the making of a report pursuant to the Sisseton-Wahpeton Sioux Tribal Juvenile
Code provisions shall have immunity from any liability, civil or criminal, that
'Might otherwise be incurred or imposed and shall have the same immunity with
respect to participation in any court proceeding resulting from such report.
Reports shall be reduced to writing and contain the following:
1. Name, age, and address of children) alleged to be abused;
2. Name and address of person or caretaker in charge of children) who is subject
of the report;
3. Name and address of alleged perpetrator;
4. Nature and extent of the abuse;
5. Persons who might have been aware of the abuse;
6. Dates) and locations) of when and where the alleged abuse occurred;
7. Any other pertinent information known to the person making the report.
38-30-01 PENALTY FOR FAILURE TO REPORT CHILD ABUSE
Any Person who has reasonable cause to suspect or witnesses abuse of child,
including an unborn child, shall report the suspected or witnessed abuse to a
Police Officer, Child Protection Program worker, Social Worker, or Tribal
Judicial Approved prosecutor immediately. Any person who, without good cause
fails to report abuse or suspected child abuse shall be Council Adopted guilty
of an offense and upon conviction thereof shall be sentenced to imprisonment for
a maximum of one (1) year in jail' or to a fine not to exceed five thousand
dollars ($5,000), or to both such fine and imprisonment, plus Court costs.
38-30-02 Persons over whom the Sisseton-Wahpeton Sioux Tribe does not have jurisdiction and who have failed to report suspected child abuse of those children under the jurisdiction of the Sisseton-Wahpeton Sioux Tribe shall be reported to the Criminal Investigator, who shall conduct an investigation into the allegations and submit his/her findings to the proper jurisdiction for probable prosecution.
38-31-01 CURFEW
It shall be unlawful for any minor child under the age of eighteen (18)
years, to be abroad and unaccompanied by his/her parent, guardian, custodian, or
a person (s) of lawful age having charge of the minor child by arrangement and
direction of said minor child's Parent, guardian or custodian, while in or at
places within the jurisdiction of the Sisseton-Wahpeton Sioux Tribe, between the
hours of 10:00 P.M. and 6:00 A.M., unless the minor is attending a school. Or
church function, at which time the curfew will then be 11:00 PM. During the
school year, the above curfew hours will be in effect; however, during the
school vacation for the summer, the curfew hours will be from 11:00 P.M. to 6:00
A. M. (Also, see Section 38-03-36 (11).
38-32-01 PARENTAL LIABILITY Any person, firm, association, or corporation (private or public), including the Tribe and its political subdivisions, which suffer damages to real or personal property or who suffer personal injury through malicious and willful act of a minor child under the age of eighteen (18) who resides with its parents shall have a course of action against and recover from the parents of such child in a civil suit.
38-32-02 In each case, the amount of recovery against one or both of the parents shall be limited to actual damages of $750 and court costs, and shall not apply to damages caused by Judicial Approve the operation of a motor vehicle by the minor child. Council
38-33-01 INTOXICATING BEVERAGES AND CONTROLLED SUBSTANCES
It shall be unlawful for any child under the age of eighteen (18) years to
purchase, attempt-to-purchase, consume, or be under the influence of
intoxicating beverages, or any controlled substance, or for any person to cause
or contribute to any such child consuming or being under the influence of
intoxicating beverages or any controlled substance. (Also, see Section 38-03-36
(8).
38-34-01 SEVERABILITY
If any clause, sentence, paragraph, section, or part of this code shall, for any
reason be adjudicated by any Court of competent jurisdiction, to be invalid or
unconstitutional, such judgement shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section, or part thereof directly involved in the
controversy in which judgement shall have been rendered.