Statutes of the Pit River Tribe of California
Updated: 2005
Title
8. Family/Children's Code
Chapter 11. Child Abuse
Title 8. Family/Children's Code, Chapter 11. Child Abuse
Article
I - General Provisions
Article II - Reporting Abuse, Neglect and Abandonment
Article III - Investigation and Hearing Procedures
Article IV - Removal and Placement
Article V - Miscellaneous
SECTION 101. POLICY
To further the interests of the Tribe in protecting its children from abuse, and to facilitate the use of the Indian Child Welfare Department to prevent further abuse and stabilize the family, the Pit River Tribal Council finds that it is necessary and in the public interest to require mandatory reports and investigations of abuse of children.
SECTION 102. JURISDICTION
The Pit River Tribal Children's Court shall have exclusive original jurisdiction over all matters involving children as defined herein.
SECTION 103. LAW ENFORCEMENT ASSISTANCE
Whenever this Code, or any action taken pursuant to this Code, requires the assistance of law enforcement personnel, such assistance may be provided by the Pit River Tribal Police; moreover, law enforcement personnel from other jurisdictions (city, county, state, federal or other tribal) are hereby expressly authorized to provide such assistance where required and requested, and where such assistance would not otherwise conflict with said law enforcement personnel's jurisdiction and/or grant of authority.
SECTION 104. DOMICILE AND RESIDENCE
A child is conclusively presumed to be a resident or domicile of the country, state and/or tribe of the custodial parent and if there is no custodial parent then of the mother. A child's domicile or residence shall not be changed for the purpose of divesting the Pit River Tribal Court of its jurisdiction over a child. The court may restrain such a removal, as it deems necessary to protect the best interests of the child.
SECTION 105. PARENT RESPONSIBLE FOR ACTS OF CHILD
A parent is responsible for the acts of his or her child, regardless of that parent's status as a non-custodial parent, and shall pay any court ordered restitution. The court may modify the amount or type of restitution, as justice requires.
ARTICLE II. REPORTING ABUSE, NEGLECT AND ABANDONMENT
SECTION 201. OBLIGATION TO REPORT CHILD ABUSE, NEGLECT AND ABANDONMENT
Any physician, registered nurse, licensed practical nurse, community health representative, mental health professional, other health professional, staff of a residential care facility or group home, school principal, teacher or teacher's aide, social worker, foster care worker, law enforcement officer, or juvenile officer having reasonable cause to believe that a child is being or has recently been abused, neglected, or abandoned as defined in Chapter 2 of this Title, shall immediately report such abuse to a tribal official designated by the Children's Court and approved by the Tribal Council. Reports from persons not obligated to report are encouraged.
SECTION 202. IMMUNITY FOR GOOD FAITH REPORTS
Any person who in good faith makes a report pursuant to this Chapter or who testifies in any judicial proceeding arising from such report shall be immune from any civil or criminal liability because of such report or testimony.
SECTION 203. PENALTIES FOR REPORTS MADE IN BAD FAITH AND FAILURE
TO REPORT
Any person who fails to report a charge of abuse or makes a report pursuant to this Chapter in bad faith for the purpose of harassing those identified in the report, without reasonable cause to believe the report is true, shall be punished by a fine not to exceed $1,000.00. This Section does not preclude any criminal charges.
ARTICLE III. INVESTIGATION AND HEARING PROCEDURES
SECTION 301. WHOM TO REPORT TO
In all cases of reported abuse or neglect, when local law enforcement receives a report, it will notify the Indian Child Welfare Department. When the Indian Child Welfare (ICW) Department receives a report of abuse, it will notify local law enforcement.
SECTION 302. CONTENTS OF REPORT
Pursuant to the Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. § 3201-3211, and 18 U.S.C. § 1169, the following procedures shall be followed for reporting child abuse or neglect.
(A) Whenever the law enforcement agency or Child Protective Services receive an initial report or referral from any person of the neglect or abuse of a child in Indian country or actions which would reasonably be expected to result in the neglect or abuse of a child in Indian country, the receiving agency shall:
(1) Immediately notify the appropriate officials of the other agency and the Tribal Prosecutor of such report and information, and
(2) Submit a copy of the written preliminary report required under subsection (C) of this Section to such agency and office.
(B) Where an initial report or referral of abuse involves an Indian child or where the alleged abuser is an Indian and the preliminary report indicates that a criminal violation has occurred, the law enforcement agency shall immediately report such occurrence to the Federal Bureau of Investigation or appropriate state law enforcement agency.
(C) The report may be made orally or in writing and shall contain as much of the following information as is known to the person making the report: the name, address, and age of the child, the name and address of the alleged perpetrator of the abuse, the nature and extent of the abuse, and any other pertinent information.
SECTION 303. DUTY TO INVESTIGATE; NOTICE TO PARENTS; PHYSICAL EXAMINATION;
CHILD'S CONSENT
(A) Upon receipt of an oral report of abuse or neglect, local law enforcement or Indian Child Welfare shall immediately cause an investigation to be made to determine the nature and extent of the abuse or neglect.
(B) If an investigation determines that abuse or neglect has occurred, local law enforcement or Indian Child Welfare shall take appropriate action, including, but not limited to, taking the child into protective custody, provision of remedial services or the filing of a petition for a dependent child.
(C) If a child is taken into protective custody, the removing agency shall take reasonable steps to immediately notify the parent and custodian, regardless of the time of day, that the child has been taken into custody, the reasons why, and general information about the child's placement.
(D) If the investigation determines that the abuse has resulted in a criminal violation and the child is an Indian or the suspected abuser is an Indian, the Federal Bureau of Investigation shall be notified.
(E) If a local law enforcement officer or Indian Child Welfare employee, when taking a child into protective custody, has reasonable cause to believe that the child has been abused physically or sexually, and that evidence of the abuse exists and is likely to disappear; he or she may petition the court, ex parte, to allow a physical examination for the purposes of preserving evidence, if the court finds it in the best interest of the child to have such an exam. However, a child of 11 years of age, or older, may refuse to consent to such an exam. If such an exam is ordered and consented to, it shall be conducted by a physician or licensed nurse trained to conduct such an investigation.
SECTION 304. INVESTIGATION OF REPORTS
(A) The official to whom the report is made shall inform the tribal prosecutor. The prosecutor shall assign the case for investigations to a tribal social worker, a court investigator, and/or a police officer as appropriate. In the alternative, the prosecutor may ask appropriate Bureau of Indian Affairs personnel to conduct an investigation. If the investigation reveals probable cause that abuse, neglect, or abandonment has occurred, the procedures outlined in Chapter 2 of this Title shall be initiated.
(B) Within 36 hours after receiving an initial report or referral of child neglect or abuse, the receiving agency shall prepare a written preliminary report which shall include, if available: the name, address, age, and sex of the child who is the subject of the report; the grade and the school in which the child is currently enrolled; the name and address of the child's parents or other person responsible for the child's care; the name and address of the alleged offender; the name and address of the person who made the report to the agency; a brief narrative as to the nature and extent of the child's condition or injuries, including any previously known or suspected neglect or abuse of the child or the child's siblings and the date of the suspected neglect or abuse; and any other information the agency or the person who made the report to the agency believes to be important to the investigation and disposition of the alleged neglect or abuse.
(C) Upon receipt of a report alleging neglect or abuse, the Child Protective Services, in conjunction with the law enforcement agency, shall:
(1) Convene a Multi-Disciplinary Team ("MDT"), comprised of personnel with experience and training in prevention, identification, investigation, cultural awareness and treatment of incidents of child neglect and abuse and family violence which shall provide advice, technical assistance and consultation in these areas, and assist in the investigation of such allegation;
(2) Take immediate and appropriate steps to secure the safety and well-being of the child or children involved;
(3) Provide appropriate services to the family; and
(4) Complete the investigation and prepare a written final report on such allegation within fifteen (15) days.
(D) If the investigation produces evidence that a child has been neglected or abused by a person other than the parent, guardian/custodian, the law enforcement agency or Child Protective Services shall immediately notify the child's parent or other person responsible for the child's care, and any other appropriate law enforcement authority having jurisdiction over the suspected neglect or abuse. If the investigation produces evidence that a child has been abused by an employee of the Tribe, the law enforcement agency or Child Protective Services shall notify the director of the appropriate tribal department of such evidence, and the director may suspend such employee, with or without pay, or terminate the employee. The employee shall be entitled to pursue any employment rights provided under the tribe's personnel policies and procedures.
(E) ICW, in conjunction with the law enforcement agency, shall develop protocols for the reporting, screening, investigation, and treatment of child neglect and abuse, and to clarify to law enforcement agency and responsibilities of the tribal departments and agencies involved in child welfare matters.
SECTION 305. INTERVIEWS AND EXAMINATIONS
(A) In any case where the law enforcement agency or Child Protective Services reasonably believe that the child has been subjected to neglect or abuse, officials of those agencies shall be allowed to take photographs, x-rays, medical and psychological examinations of the child and interview the child without first obtaining the consent of the parent, guardian/custodian.
(B) All examinations and interviews of a child who may have been subjected to neglect or abuse shall be conducted under the supervision of the Tribal attorney's office and in a manner that minimizes additional trauma to the child.
(C) The expense of such examinations and diagnostic tests shall be paid by the parents or guardian/custodian of the child, or if they are unable to pay, by ICW, which may seek reimbursement according to Tribal law.
SECTION 306. REPORT; PHOTOGRAPHING CHILD DURING INVESTIGATION
(A) The results of an investigation shall be prepared in a written report that shall be submitted to Indian Child Welfare within 36 hours of completion of the investigation. The report shall contain:
(1) Name, age, sex and address of the child that is the subject of the report; and
(2) Grade and the school in which the child is currently enrolled; and
(3) The name, address and age of the child's parents or other person responsible for the child's care; and
(4) The name, address and age of the alleged offender; and
(5) The name and address of the person making the report; and
(6) A brief narrative of the nature and extent of the child's injuries, the dates of the alleged abuse and any previously known or suspected abuse of the child or of the child's siblings; and
(7) Any other information that may be important to the investigation or disposition of the alleged abuse.
(B) As part of any investigation, local law enforcement or Indian Child Welfare may photograph any child subject of the investigation for the purposes of documenting and preserving evidence of the child's injuries. Photographs so taken shall be made a part of the report.
SECTION 307. PROTECTIVE CARE PETITION
(A) If the investigation produces evidence that the child has been neglected or abused and is in need of care, the Tribal Prosecutor shall file a Protective Care Petition with the Children's Court.
(B) The Petition shall set forth the following:
(1) The name, birth date, sex, residence and tribal affiliation of the child;
(2) The basis for the Court's jurisdiction;
(3) A plain and concise statement of the facts upon which the allegations of neglect or abuse are based, including the date, time and location at which the alleged neglect or abuse occurred;
(4) The names, addresses, social security numbers and tribal affiliation of the child's parents or guardians/custodians, if available;
(5) The names and addresses of the child's extended family and all former care givers, if available; and,
(6) If the child has been placed outside of the home, the facts necessitating the placement, the date and time of the placement, and where and with whom the child was placed.
(C) The Court shall schedule a hearing on the Petition within twenty (20) days from the date the Petition was filed. Upon petition or its own initiative, the Court may order that a social study of the child's home and family or an evaluation of matters relevant to the disposition of the case be made.
(D) Upon the filing of the Petition, the Court shall cause a Summons to be issued requiring the parents and any other persons necessary or proper to the proceedings to appear in Court at the time and place named therein. The Summons and Petition shall be personally served upon the party at least ten (10) days before the scheduled hearing. If the party to be served is not within the Reservation boundaries or personal service cannot be effected, the Summons and Petition may be served by certified or registered mail, with a return receipt requested. The Summons shall contain the following information:
(1) Identify the parties and the nature of the proceedings;
(2) State that the party served shall personally appear before the Court and respond to the Petition at a specified date and time;
(3) State that the party has the right to be represented by an attorney/advocate at her own expense in all proceedings under this Ordinance, to introduce evidence, to be heard on her own behalf, to examine witnesses, and to be informed of possible consequences of the proceedings.
SECTION 308. HEARING
(A) The purpose of the Hearing is to determine whether or not the child is in need of care and Court intervention and protective supervision are necessary to protect the best interests of the child.
(B) The hearing proceedings shall be on the record, but shall be closed to the general public. General rules of evidence and civil procedure shall be suspended.
(1) Any privilege against the disclosure of communications between spouses shall not apply and either party may testify as to any relevant matter.
(2) Evidence that the child has been neglected or abused or has sustained a non-accidental injury shall constitute prima facie evidence that shall be sufficient to support an adjudication that such child is in need of care.
(3) The child shall be represented by a Guardian Ad Litem ("GAL") appointed by the Tribal Court to speak on behalf of the best interests of the child. The GAL shall be knowledgeable about the protective, social, and medical needs of the child and the child's family. The GAL's fee shall be paid by the parents or guardian/custodian, or if such they are unable to pay, by the Court, which may seek reimbursement according to Tribal law.
(C) Whenever any party intends to call the child as a witness, it shall notify the Court no later than five (5) days before the hearing, unless enforcement agencys good cause is shown for short notice to the Court. Upon receipt of the notice, the Court may direct the child to be evaluated by an expert witness to determine if it is asserted that testifying in person would cause trauma to the child.
(1) The child may be allowed to testify if such testimony will not cause serious emotional or psychological harm to the child.
(2) If the Court determines that such testimony may cause serious emotional or psychological harm to the child, the child may testify by means of a videotape deposition or other appropriate method. If the Court allows these methods to be utilized, the Court shall specifically set out the reasons for this determination on the record.
(D) The Court shall hear testimony from the parties and make specific findings as to whether or not the allegations of the Petition are supported by the evidence and whether or not the best interests of the child will be served by Court intervention, protective supervision, or by removal from her home.
(1) Whenever removal and foster care placement of a child is recommended, the Court shall be satisfied that active efforts have been made to provide remedial and rehabilitation services designed to prevent the breakup of the family and that these efforts have proved unsuccessful.
(2) Whenever it appears from the allegations of the Petition, supported by a preponderance of the evidence, including the testimony of a qualified expert witness and, if available, the testimony of the parents or guardian/custodian, that the child's condition or the circumstances surrounding her care require that her custody be assumed to safeguard her welfare, the Court shall vest in the ICW or a qualified person the child's temporary care and custody.
SECTION 309. COURT FINDINGS
(A) The Court shall enter a written order with specific findings of fact and conclusions of law.
(B) If the Court concludes that removal or continued out of the home placement is not warranted, the child shall be returned immediately to the custody of her parents, custodian/guardian; provided however, that the Court may define the terms and conditions for returning the child to her home, continued Court jurisdiction and protective supervision.
(C) If the Court finds that removal or continued removal is in the best interests of the child, the Court shall determine:
(1) The proper placement of the child;
(2) The services or treatment to be provided to the child and the child's family to help address the circumstances underlying the removal; and
(3) The terms and conditions for placement of the child, returning the child to her home, and family visitation.
(D) Where the evidence demonstrates that the activities of a particular person in the household are the basis for the Court's finding that removal of the child is required, the Court may, pursuant to its civil regulatory authority, issue a restraining order preventing that person from residing in the residence in lieu of removing the child.
(E) The expense for any temporary care and custody shall be paid by the parents or guardian/custodian, or if they are unable to pay, by ICW which may seek reimbursement according to Tribal law.
ARTICLE IV. REMOVAL AND PLACEMENT
SECTION 401. EMERGENCY REMOVAL
(A) If a child is in imminent danger from her surroundings and removal from such surroundings is necessary to insure the child's safety, the law enforcement agency or Child Protective Services may remove the child from such surroundings without a Court order and place her in protective care or a foster home. A child shall be considered to be in imminent danger when:
(1) The failure to remove the child may result in an immediate and substantial risk of death, permanent or serious injury, or serious emotional harm to the child; or
(2) The parent, guardian/custodian is absent and it appears from the circumstances that the child's basic necessities of life are not being met, and proper arrangements have not been made by the parent, guardian/custodian to provide for such necessities.
(B) When a child is removed, the law enforcement agency or Child Protective Services shall make reasonable efforts to contact a member of the child's extended family.
(C) Such removal shall not exceed ninety-six (96) hours, within which time an Emergency Protective Care Petition shall be filed with the Court or the child shall be returned to her parent or guardian/custodian.
(D) If a Petition is filed, the procedures for removal shall be followed, provided that the Court shall schedule a hearing on the Petition within ten (10) days from the date the Petition was filed.
SECTION 402. REVIEW OF PLACEMENT AND SUPERVISION
(A) The Court may exercise continuing jurisdiction over the supervision of such child custody proceeding for so long as it deems necessary to protect the child's best interests. The status of all children who have come within the supervision of the Court shall be reviewed by the Court at least every three (3) months at a hearing to determine whether or not the placement conditions have been met and whether or not Court supervision shall continue.
(B) The first review following a formal hearing on the Petition shall be held within forty-five (45) days of the Court's decision.
(C) If continued Court supervision and intervention is necessary, the Court shall set forth the following in a written order:
(1) What services have been provided or offered to the parents or guardian/custodian to help address the circumstances underlying the removal;
(2) The extent of the parent or guardian/custodian involvement with the child or any reason why visitation and/or contact has been infrequent or not otherwise occurred;
(3) Whether or not the parents or guardian/custodian have been cooperative with the Court;
(4) Whether or not the parents or guardian/custodian should be required to participate in any additional treatment programs to help correct the underlying circumstances;
(5) Define a time frame in which the family can reasonably expect to be reunited, provided the circumstances underlying the removal have been satisfactorily addressed; and
(6) Any additional steps the Court deems necessary and appropriate.
SECTION 403. PLACEMENT PREFERENCES
(B) Whenever the Court has adjudged a child to be in need of protective or foster care, the child shall be placed in the least restrictive setting which most approximates a family and in which her special needs, if any, may be met. The child shall also be placed within reasonable proximity to her home, taking into account any special needs of the child. A placement preference shall be given, in the absence of good cause to the contrary and taking into consideration the child's age and maturity, to a placement with:
(1) Members of the child's family or extended family;
(2) Other members of the Pit River Tribe;
(3) A tribally approved foster home or facility for children which has a program suitable to meet the child's needs;
(4) Other Indian families.
(C) Where a child is placed outside of the Tribal community, the Tribal Court shall include in its order provisions for continuing contact between the child and the Tribal community.
SECTION 501. EMERGENCY AUTHORIZATION OF MEDICAL TREATMENT
(A) This Section shall apply to the emergency removal of a child who is in imminent danger.
(B) When a physician indicates that in her professional opinion, the life of the child would be greatly endangered or that there is a strong likelihood that the child would suffer permanent and/or serious harm without specified treatment, the protective or foster care parent or the Children's Court on an ex parte basis may authorize emergency medical treatment. Every effort shall be made to contact the child's parents and ICW before authorization is given. The child's parents or an extended member of the child's family shall be notified of the emergency treatment immediately thereafter.
SECTION 502. CHARACTER INVESTIGATIONS
(A) ICW shall compile a list of all positions which involve regular contact with, or control over, Indian children.
(B) ICW shall, in conjunction with the law enforcement agency, conduct an investigation of the character of each individual who is employed, or is being considered for employment by the Tribe, in a position listed in subsection (A) of this Section.
(C) The minimum standards of character that are to be prescribed under this Section shall ensure that none of the individuals employed in any position listed in subsection (A) have been found guilty of, or entered a plea of no contest or guilty to, any offense under federal, state or tribal law involving crimes of violence, sexual assault, molestation, exploitation, contact or prostitution, or crimes against persons.
SECTION 503. CENTRAL REGISTRY OF REPORTS; CONFIDENTIALITY OF RECORDS
(A) When an investigation has shown reasonable cause to believe that a child was abused or neglected, regardless if the cause is known, such incident, together with the name of the child and the family shall be reported to the Central Registry of Child Abuse in Indian Country, pursuant to 25 U.S.C. § 3204, or in the absence of such registry, to the central registry for the State of California.
(B) Notwithstanding any other provision of law, any and all reports of child abuse or neglect shall be kept confidential except when reports are required to be shared between tribal, federal and state agencies or as provided in subsection (C) of this section.
(C) Indian Child Welfare shall release records of child abuse and neglect, except the name of an individual reporting, to:
(1) Any law enforcement agency or child abuse registry of another tribe or state for the purposes of subsequent investigation of child abuse or neglect; or
(2) A physician requesting such information for the purposes of examination, care or treatment of a child who is the subject of a report; or
(3) The attorney of record for a child, parent or custodian in any proceeding involving the child; or
(4) A guardian ad litem, CASA, or court approved spokesperson for a child, parent or custodian in any proceeding involving the child; or
(5) A tribal or state child care licensing agency, but in such instance, only the name of the person suspected of abusing the child shall be released.
(D) Indian Child Welfare may release a report of abuse or neglect to any person or agency when it has determined that such disclosure is necessary to investigate, prevent or treat child abuse and neglect, and that such disclosure is in the best interests of the affected child. A disclosure may also be made for research and statistical purposes if all names of the child, child's family and alleged abuser are removed from the reports to be released.
(E) All records released under this section shall maintain their confidential nature and shall be kept confidential by the person or agency receiving such reports. Indian Child Welfare may refuse any request under subsections (A) to (D) of this section for records, after Indian Child Welfare has made a determination that the person or agency receiving the reports does not have sufficient control of the records to ensure confidentiality or has inappropriately released confidential material in the past.
(F) A person who violates subsection (A) or (E) of this section commits a violation punishable by a fine not to exceed $1000.00.
SECTION 504. MODIFICATION, REVOCATION OR EXTENSION OF COURT ORDERS
(A) Upon a motion of any party to the proceeding or any other person or entity who would have had the right to be a party to the proceeding, the Court may conduct a hearing to modify, revoke or extend a Court order made under this Ordinance.
(B) Any hearing to modify, revoke or extend a Court order shall be held in accordance with the procedures established by the Tribal Court.
SECTION 505. APPEALS
Appeals from decisions by the Children's Court under this Ordinance may be made by any party in accordance with the rules governing the Appellate Court of the Pit River Tribe.
SECTION 506. CERTAIN EVIDENTIARY PRIVILEGES WAIVED IN CHILD ABUSE
CASES
In any judicial proceeding resulting from a report of abuse or neglect, any privilege between husband and wife, psychotherapist-patient, physician-patient, nurse-patient, social worker-client or to staff members of schools shall not be grounds to exclude evidence regarding child abuse or neglect, or the cause thereof.
SECTION 507. GRANDPARENT VISITATION
The court shall determine the rights of a grandparent under Chapter 4, Annulment, Divorce and Child Custody, to have visitation with a grandchild when ordering an out of home placement for a child. Such visitation shall be continued unless the court finds that such visitation is not in the best interests of the child.
SECTION 508. SEVERABILITY
The provisions of this Chapter are severable. If any provision of this Chapter or its application to any person or proceeding is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this Chapter.