TITLE III 

CHAPTER 2 - CHILD ABUSE AND NEGLECT 

(Enacted 9-6-07)

 

Part 1 - General Provisions and Definitions 

3-2-101. Policy.  

The Confederated Salish and Kootenai Tribes (Tribes) recognize Indian children as the Tribes’ most important resource, and declare it to be the policy of the Tribes to treat Indian children in accordance with their paramount importance.  Indian children shall be entitled to a permanent, physical and emotional environment necessary to promote their successful development into productive, responsible adults.  It is the policy of the Tribes to prevent the unwarranted break-up of Indian families by adopting procedures that recognize family member rights while utilizing the best interests of the child standard.  Finally, it is the policy of the Tribes, when permanent out-of-home placements are necessary, that those placements be accomplished through guardianship and adoption in the child’s extended family; legal adoption outside the Tribes shall be the least preferred alternative.

3-2-102. Definitions.

(1)  “Adult” means any person who has reached his or her eighteenth (18th) birthday or has otherwise been emancipated by a court of competent jurisdiction.

(2) “Best Interests of the Child” means the physical, mental, and psychological conditions and needs of the child and any other factor considered by the court to be relevant to the child.

(3) “Child” means any person under 18 years of age, and for implementation of the title IV-E program, Allows the agency to provide foster care, adoption and, if applicable, guardianship assistance for eligible children up to 21 years of age if the child meets certain criteria established in section 475(8)(B) of the Fostering Connections to Success and Increasing Adoptions Act of 2008 (P.L. 110-351). 

(4) “Child Abuse or neglect” means:

(a) An Abused Child: One who has suffered or is likely to suffer a physical injury inflicted upon the child by other than accidental means, which causes or creates a substantial risk of death, disfigurement, impairment of bodily functions or serious physical or emotional harm, as determined by appropriate medical or professional personnel.  The following are examples of circumstances in which a child could be found to be an abused child, but as such are not intended to be all-inclusive:

(i) A child who has been excessively beaten or suffered other unusual or inappropriate corporal punishment;

(ii) A child who suffers injury to his or her psychological functioning, as determined by an appropriate professional person, as a result of psychological or other abuse;

(iii) A child who has been subjected to obscene or indecent sexual activities as sure, guidance, or approval of the child’s parent or guardian;

(iv) A child who has been a passenger in a vehicle driven by an intoxicated person, with the knowledge or approval of the child’s parent or guardian; and

(v) A child exposed to the criminal distribution of dangerous drugs as prohibited by Section 2-1-1401 (Mont. Code Ann. § 45-9-101 (2005)), the criminal production or manufacture of dangerous drugs, as prohibited by Section 2-1-1401 (Mont. Code Ann. § 45-9-110), the operation of an unlawful clandestine laboratory, as prohibited by Section 2-1-1401 (Mont. Code Ann. § 45-9-132), or consumption of dangerous drugs by the parent or custodian while in the physical presence of a child.  For the purposes of this subsection “dangerous drugs” means the compounds and substances described in Section 2-1-1401 (Mont. Code Ann. § 50-32-101).

(b) A Neglected Child: One whose parent or custodian fails to provide such food, clothing, shelter, medical attention, hygiene, education, or supervision as the child needs for development, although the parent or custodian was able to furnish such needs or has refused Tribal or other assistance for furnishing such needs, and such failure is likely to result in serious harm to the child as determined by appropriate medical or professional persons.

(c) An abandoned infant: One whose parent abandons the child outside of legal adoption. 

(5) “Child Custody Proceeding” means any voluntary or involuntary court action, informal or formal, but not including dissolution/divorce actions, that may result in the temporary or permanent removal of a child from his or her parents, guardian or guardian.  This definition shall not involve delinquency proceedings, except such proceedings involving acts which would not be deemed a crime if committed by an adult, or custody proceedings or parenting plans undertaken as a result of divorce.

(6) “Confederated Tribes” means the Confederated Salish and Kootenai Tribes of the Flathead Reservation.

(7) “Court” means the Tribal Court of the Confederated Salish and Kootenai Tribes, unless another court of competent jurisdiction is clearly specified or intended.

(8) “Tribal Social Services Department (TSSD)” means the Tribal Social Services Department of the Confederated Salish and Kootenai Tribes, which is under the supervision of the Department of Human Resource Development, and may be also known as Tribal Social Services Department (TSSD).

(9) “Domicile” means the place considered to the child’s home, according to the traditions and customs of the child’s Tribe, or the place where the child is living and is expected to continue living for an indefinite period of time.

(10) “Expert Witness” means a witness who is either:

(a) A member of the Tribal community who is an acknowledged expert on the cultural or spiritual traditions of the child’s tribe; or

(b) A professional person having a recognized education in medical, sociological, spiritual, or other fields which the court may determine relevant in child custody proceedings.

(11) “Extended Family” means any person related by blood,  marriage, or other affiliation, to the child having significant contacts with the child and who is viewed as an extended family member in accordance with the customs of the child’s Tribe.  Grandparents shall be given preference when extended family is sought for temporary placement of children (such as foster care) and permanent placement of children (such as guardianship and adoption).

(12) “Foster Care” means the placement of a child to reside with another family or person for a specified period of time.

(13) “Guardianship” means a judicially created relationship between the child and relative which is intended to be permanent and self-sustaining as evidenced by the transfer to the relative of the following parental rights with respect to the child: Protection; Education; Care and control of the person; custody of the person, and; decision making.   

(14) “Guardian ad Litem” means a person appointed by the Tribal Court to protect the legal rights and best interests of the child in a Tribal Court proceeding.  

(15) “ICWA” means the Indian Child Welfare Act, Public Law 95-608, 25 U.S.C. Section 1901 eq seq. (1978).  

(16) “Indian Youth or Indian Child” means a child of Indian descent who is either enrolled or enrollable in an Indian tribe, band, community or who is a biological descendant of an enrolled member and has significant contacts or identification with an Indian community.  

(17) “Parent” means any biological father or mother of an Indian child or any person who has adopted an Indian child by legal or traditional means.  

(18) “Permanency” means reunification of the child with the child’s parent, adoption, placement with a legal guardian, placement with a fit and willing extended family member as defined in Section 3-2-102 (10), or placement in another planned permanent living arrangement, until the child reaches 18 years of age unless extended by court order.  

(19) “Protected Child(ren)” also means ward(s) of the court.  

(20) “Putative Father” means the alleged biological father of a child born out of wedlock.  

(21) “Reservation” means the Flathead Reservation of the Confederated Salish and Kootenai Tribes.  

(22) “Residence” means the place where the child is presently living.  

(23) “Shelter Care” means the residential care of children in a shelter care facility or group home approved by Tribal Social Services Department (TSSD).  

(24) “Tribal Advocate” means a person who is allowed to represent another person in a Tribal Court proceeding according to qualifications set out by the Tribes’ Code provision.  

(25) “Tribal Child” means, for jurisdictional purposes under this Code, a child of Indian descent who is either enrolled or enrollable in an Indian tribe, band, community or who is a biological descendant of an enrolled member and has significant contacts or identification with an Indian community.  (Rev. 9-13-12)

3-2-103. Jurisdiction.  

The Tribal Court shall have jurisdiction over any child custody proceedings involving an Indian child residing or domiciled within the Flathead Reservation or having significant contacts with the Reservation community.  The court shall have exclusive jurisdiction over all child custody proceedings involving any Indian child who is a Tribal member of the Confederated Salish and Kootenai Tribes who resides or is domiciled within the Flathead Reservation or is a protected child of the Tribes.

(1) Transfers to Tribal Court Jurisdiction.  In any case where a court transfers legal custody of an Indian child subject to this jurisdiction to the Confederated Salish and Kootenai Tribal Court, to Tribal Social Services Department (TSSD) of the Confederated Salish and Kootenai Tribes, to any person other than a natural parent of the child, or to any agency or institution of the Tribes, the Tribal Court shall reserve jurisdiction over all future child custody proceedings involving that child, unless otherwise specified by a Tribal Court order, and the child shall become a Protected Child of the Tribes.  

(2) Limitation of Jurisdiction.  For purposes of Tribal Court jurisdiction, a Protected Child of the Tribes shall be a ward of the Tribal Court, and such wardship status shall continue until terminated by the Tribal Court or until the child reaches the age of eighteen (18)  years, unless extended by the court.  All children who are wards of the court by previous action of the Confederated Salish and Kootenai Tribal Court, or for any other reason, at the time of the adoption of this Code shall be considered Protected Children of the Tribes. (Rev. 9-13-12)

3-2-104. Rights and Responsibilities of Parents.  

Parents shall have the following rights and responsibilities:

(1) Right to legal representation as defined in Section 3-2-110;

(2) Right to notice to court proceedings as defined in Sections 3-2-604;

(3) Right to application of  procedural safeguards in the removal of the child from the home of his or her parents, to a change in the child’s placement, and to any determination affecting visitation privileges of parents.

(4) Responsibility to provide adequate food, clothing, shelter, medical attention, hygiene, consistent public or private school attendance or adequate home schooling, and supervision for the care of the child(ren) when within the home, or financial support when the child is placed outside of the home.

(5) Responsibility to assist and support the court in implementing the court’s orders concerning a child under the court’s jurisdiction, being subject to the court’s contempt powers if they fail to do so; and

(6) If so ordered by the court, the responsibility to pay for assessments and related costs, that may arise under this chapter, including the possibility that the person may be required to reimburse the Tribes for costs attributable to the supervision, care, custody, and treatment of the child including: participation in counseling, treatment, or other support services.  The court may order payment of assessments, related costs and reimbursements to be paid from per capita distributions to parents.  (Rev. 9-13-12)

3-2-105. Guardian ad Litem.  

In every Tribal Court judicial proceeding, upon the motion of any party or on its own motion, the court may appoint a Guardian ad Litem to protect the legal rights and best interests of the child. 

(1) The guardian ad litem is charged with the representation of the child’s best interests and shall perform the following general duties:

(a) to conduct investigations to ascertain the facts constituting the alleged abuse or neglect;

(b) to interview or observe the child who is the subject of the proceeding;

(c) to have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child’s siblings and parents or guardians; 

(d) to make written reports to the court concerning the child’s welfare;

(e) to appear and participate in all proceedings to the degree necessary to adequately represent the child’s best interests and make recommendations to the court concerning the child’s welfare;

(f) to ascertain and report to the court the wishes and/or desires of the child with respect to any action contemplated or taken by the parties or the court; and

(g) to perform other duties as directed by the court.

(3) Information contained in a report filed by the guardian ad litem or testimony regarding a report filed by the guardian ad litem is not hearsay when it is used to form the basis of the guardian ad litem’s opinion as to the best interests of the child.

(4) Any party may petition the court for the removal and replacement of the guardian ad litem if the guardian ad litem fails to perform the duties of the appointment.

3-2-106. Subpoena Power.  

Any party or the attorney or advocate for a party or the Tribal Court on its own motion may cause a subpoena to be served on a person whose testimony or appearance is desired.  It is not necessary to tender advance fees to the person served a subpoena in order to compel attendance.

3-2-107. Legislative Case Review and Advisory Committees.  

Legislative case review, advisory and other committees appointed from time to time by the Tribal Council shall be governed by the manual guidance adopted under Section 3-2-108 of this part.

3-2-108. Duties of TSSD.  

The Tribal Social Services Department (TSSD) shall perform the following duties.

(1) Within 180 days of adoption of this chapter, Tribal Social Services shall develop and recommend to the Tribal Council draft manual guidance to implement the requirements of this chapter. Upon approval by the Tribal Council, TSSD shall publish such manual guidance for comment. TSSD shall consider comment received and then recommend to Council final manual guidance to implement the requirements of this part.

(2) Tribal Social Services shall research, identify, and recommend to the Tribal Council such Financial resources, cooperative agreements, memorandums of agreement, and other programs that may be available to support Tribal Social Services activities and responsibilities.

(3) Tribal Social Services has the primary responsibility to provide the protective services Authorized by this chapter and has the authority pursuant to this chapter to take temporary or permanent custody of a child when ordered to do so by the court.

(4) Tribal Social Services shall respond to reports of known or suspected child abuse or neglect twenty-four (24) hours a day, seven (7) days a week.

(5) Tribal Social Services shall make reasonable efforts to prevent removal of a child from the child’s home and to reunify families that have been separated by the court.  Reasonable efforts include but are not limited to voluntary protective services agreements, development of individual written case management plans specifying Tribal Social Services efforts to reunify families, placement in the least disruptive setting possible, provision of services pursuant to a case management plan, and periodic review of each case to ensure timely progress toward reunification or permanent placement. In determining preservation or reunification services to be provided and in making reasonable efforts at providing preservation or reunification services, the child’s health and safety are of paramount concern.

(6) Tribal Social Services shall establish and maintain licensing standards for tribal foster family homes and child care institutions.  (Rev. 9-13-12)

3-2-109. Confidentiality.  

All court files and documents prepared in child custody proceedings governed by this chapter shall be held confidential, unless otherwise specified in this chapter.  This shall include reports to Tribal Social Services Department (TSSD), police officers, or other tribal personnel involved in child custody proceedings, summaries or records of hearings held hereunder, the names of children, families, or witnesses involved in proceedings under this chapter.  All such records shall be kept in a secure place by the clerk of the court, and shall be released only to judges, tribal advocates, social workers, or other tribal agencies and officers of the court, or any party to an action concerning the child, involved in any proceeding or official action concerning the child.  No other release of such information shall be allowed without an order of the Tribal Court Judge.  All records of child court proceedings shall be physically sealed when the child reaches the age of eighteen (18) years of age unless otherwise extended by the court.  Nothing in this section shall prohibit a tribal entity from reporting and releasing information to the public for the purposes of locating a child reported missing for any reason. (Rev. 9-13-12)

3-2-110. Representation.  

At their own expense, parents or guardians may be represented at each stage of child custody proceedings by an attorney or lay advocate.  In a proceeding for termination of parental rights, the Tribal Court will determine if the parent or guardians meet the definition of indigence as defined in Section 1-2-402, CSKT Laws Codified, and if so, the judge may appoint a tribal advocate for the parent or guardian, if so requested and if an advocate is available.  

3-2-111. Federal Rules of Evidence.  

The Tribal Court shall apply federal rules of evidence in all proceedings, except where otherwise indicated.

3-2-112. Appeals.  

Any order of the court involving the suspension or termination of parental rights, and any final order of the court, may be appealed according to the rules and practices of the Appeals Court of the Confederated Salish and Kootenai Tribes, Title 1, Chapter 2, Part 9, “Rules of Appellate Procedure,” CSKT Laws Codified.  Judicial decisions and orders shall not be appealed to the Tribal Council.

 

Part 2 - Reports and Investigations of Child Abuse and Neglect

3-2-201. Reports of Child Abuse and Neglect.  

Tribal Law and Order personnel and/or Tribal Social Services Department (TSSD) shall respond to reports of child abuse and neglect as follows.

(1) Upon the receipt of any report or information, from any source, regarding a tribal child who may be a child in immediate danger of harm, it shall be the duty of Tribal Social Services Department (TSSD) to immediately respond.  Tribal Social Services Department (TSSD) shall determine whether there is immediate danger of harm and substantiate the immediate danger of harm to the child due to parental, or guardian abuse resulting from or connected with abuse of alcohol, drugs, physical assault or sexual assault, and if necessary take action to remove the child from immediate harm.  Tribal Social Services Department (TSSD) may request Tribal Law and Order personnel to accompany them on a response visit.  If criminal charges are filed as a result of an investigation of child abuse or neglect, the Tribal Law and Order Department shall advise Tribal Social Services Department (TSSD) of the results of ongoing investigations.

(2) Upon the receipt of any report or information, from any source, regarding a tribal child who is being abused or neglected and deemed a child who is in need of care, and where there is no information causing a reasonable person to conclude there is a threat of immediate or apparent danger of harm, it shall be the duty of Tribal Social Services Department (TSSD) to investigate or cause to be investigated the report of abuse and neglect as set forth in the manual guidance. (Rev. 9-13-12)

3-2-202. Responsibility and Confidentiality of Reporting.  

Any individual who knows or suspects that a tribal child is in need of care should report to Tribal Social Services Department (TSSD), Tribal law enforcement personnel, the Tribal Court, or Centralized Intake (operated by the State of Montana).   The following individuals must report any known or suspected case of a tribal child who may be in need of care: physicians, surgeons, dentists, podiatrists, chiropractors, nurses, dental hygienists, optometrists, medical examiners, emergency medical technicians, paramedics, health care providers, teachers, school counselors, instructional aides, teacher’s aids, teacher’s assistants, bus drivers, administrative officers, supervisors of child welfare, truancy officers, child-care workers, head-start teachers, public assistance workers, workers in group homes or residential or day-care facilities, social workers, psychiatrists, psychologists, psychological assistants, licensed or un-licensed marriage, family or child counselors, persons employed in the mental health profession, law enforcement officers, probation officers, workers in juvenile rehabilitation detention facilities, and persons employed in a public agency responsible for enforcing statutes and judicial orders. (Rev. 9-13-12)

3-2-203. Administrative Appeal of Case Substantiation.  

The Tribal Social Services Department (TSSD) Program Manager shall  issue a written decision on the investigation of reports of child abuse or neglect with notice to the affected parties.  The decision may be appealed in writing to the TSSD Department Head within thirty (30) days of the issuance of the determination.

(1) The TSSD Department Head shall review the determination and issue an appeal decision within 30 days of receipt of the appeal.  If the determination is reversed, DHRD shall remove the documentation from all computerized tracking systems.  If the determination is upheld the case shall proceed following the requirements of this code.

(2) The decision shall not be appealed to the Tribal Council, nor discussed in Tribal Council meetings.  

(3) Administrative appeal of the substantiation letter does not suspend the time frames specified in this statute.  (Rev. 9-13-12)

3-2-204. Immunity from Liability.

(1) Anyone investigating or reporting any incident of child abuse or neglect under Section 3-2-201, participating in resulting judicial proceedings, or furnishing hospital or medical records as required by Section 3-2-205 is immune from any liability, civil or criminal that might otherwise be incurred or imposed unless the person was grossly negligent or acted in bad faith or with malicious purpose or provided information knowing the information to be false.

(2) A person who provides information pursuant to Section 3-2-202 that is substantiated by TSSD Social Services or a person who uses information received pursuant to Section 3-2-202 that is substantiated by Tribal Social Services Department (TSSD) to refuse to hire or to discharge a prospective or current employee, volunteer, or other person who through employment or volunteer activities may have unsupervised contact with children is immune from civil liability unless the person acted in bad faith or with malicious purpose.  (Rev. 9-13-12)

3-2-205. Admissibility and Preservation of Evidence.

(1) In any proceeding resulting from a report made pursuant to the provisions of this chapter or in any proceeding for which the report or its contents are sought to be introduced into evidence, the report or its contents or any other fact related to the report or to the condition of the child who is the subject of the report may not be excluded on the ground that the matter is or may be the subject of a privilege related to the examination or treatment of the child granted by Section 1-2-611 (3), (4), (5), (6), (7), (8), and (11), except the attorney-client privilege granted by Section 1-2-611 (2) (a) and (b) all in CSKT Laws Codified.

(2) A physician, either in the course of providing medical care to a minor or after consultation with TSSD Social Services, the prosecutor, or a law enforcement officer, may require x-rays to be taken when, in the physician’s professional opinion, there is a need for radiological evidence of suspected abuse or neglect.  X-rays may be taken under this section without the permission of the parent or guardian.  The cost of the x-rays ordered and taken under this section must be paid by the appropriate financial resource, or referred to the Tribes if no other financial resource is available. (Rev. 9-13-12)

 

Part 3 - Emergency Protective Care

3-2-301. Emergency Protective Care.  

Whenever a Tribal police officer or Tribal Social Services Department (TSSD) worker has probable cause to believe that a child is in immediate danger of harm and that the removal of the child from the child’s home residence is necessary to avoid harm, and if the court is unavailable to issue a custody order, or if the issuance of a custody order would involve a delay that would contribute to the risk of harm to the child, the police officer or Social Services worker may take the child into emergency protective care.

(1) Upon the removal of a child into emergency protective care, the Tribal police officer or TSSD Social Services worker shall:

(a) Immediately notify the child’s parents or guardian of such removal, and the reasons therefore.  If attempts to so notify the child’s parents and guardian are unsuccessful, then best efforts shall immediately be made to notify the child’s nearest relatives.

(b) Immediately notify the Tribal Social Services Department (TSSD) of such removal.

(c) If return of physical custody of the child can be accomplished without danger of harm to the child, the child shall be returned to the parents or guardian.

(d) If the return of the child to the child’s parents or guardian is impossible or would involve continued risk of such harm to the child, then the child shall be placed in the physical custody of a responsible adult member of the child’s extended family if such a person is available and if placement can be accomplished without risk of harm to the child.  In order to protect the privacy of the parents or guardian, the Tribal police officer or TSSD social worker shall contact the child’s relatives only to the extent necessary to investigate the case and determine whether appropriate placement can be made within the extended family.

(e) If emergency care as set forth above is not available, then the child shall be placed with a secure home, family, or shelter care facility having been approved for such placement by Tribal Social Services Department (TSSD).  A child shall not be placed in a jail facility or other environment where the child is in contact with persons in such a facility  accused or convicted of a crime or delinquent act.

(f) Upon placement of the child, the Tribal police officer or Tribal Social Services Department (TSSD) worker shall make a report to the Division Manager of Tribal Social Services Department (TSSD) containing a summary of the circumstances surrounding the emergency care and the basis therefore.

(g) In no case shall emergency protective temporary care extend beyond seventy-two (72) hours, exclusive of weekends and holidays.  

(h) At the expiration of this period, Tribal Social Services Department (TSSD) shall:

(i) cause the child to be returned to the child’s parents or guardian;

(ii) offer intervention services;

(iii) enter into a voluntary agreement or diversion process as referenced in Section 3-2-402; 

(iv)  have the child brought before a Tribal Court Judge for an emergency hearing to determine further placement of the child pending further proceedings in the case; or 

(v) file a petition for protective services pursuant to Section 3-2-302. (Rev. 9-13-12)

3-2-302. Petition for Emergency Protection and Emergency Protective Services.

(1)

(a)  In a case in which a child has been removed under Section 3-2-301 (1) (d), the prosecutor shall file a petition for immediate protection and emergency protective services.  In implementing the policy of this section, the child’s health and safety are of paramount concern.

(b) A petition for immediate protection and emergency protective services must state the specific authority requested and the facts establishing probable cause that a child is abused or neglected or in danger of being abused or neglected.

(c) A petition for immediate protection and emergency protective services must be supported by an affidavit signed by a representative of Tribal Social Services Department (TSSD) stating in detail the facts upon which the request is based.  The petition or affidavit of Tribal Social Services Department (TSSD) must contain information regarding statements, if any, made by the parents detailing the parents’ statement of the facts of the case.  The parents, if available in person or by electronic means, must be given an opportunity to present evidence to the court before the court rules on the petition.

(d) The petition for immediate protection and emergency protective services must include a notice advising the parents, parent, guardian, or other person having physical custody of the child that the parents, parent, guardian, or other person may have a support person present during any in-person meeting with a social worker concerning emergency protective services.  Reasonable accommodation must be made in scheduling an in-person meeting with the social worker.

(2) The person filing the petition for immediate protection and emergency protective services has the burden of presenting evidence establishing probable cause for the issuance of an order for immediate protection of the child.  The court shall consider the parents’ statements, if any, included with the petition and any accompanying affidavit or report to the court.  If the court finds probable cause, the court may issue an order granting the following forms of relief, which do not constitute a court-ordered treatment plan under Section 3-2-610:

(a) the right of entry by a peace officer or TSSD social worker;

(b) the right to place the child in temporary medical or out-of-home care, including but not limited to care provided by a noncustodial parent, kinship or foster family, group home or institution;

(c) a requirement that the parents, guardian, or other person having physical or legal custody furnish information that the court may designate and obtain evaluations that may be necessary to determine whether a child is a youth in need of care;

(d) the requirement that the perpetrator of the alleged child abuse or neglect be removed from the home to allow the child to remain in the home, if the perpetrator is subject to Tribal Court jurisdiction; 

(e) a requirement that the parent provide Tribal Social Services Department (TSSD) with the name and address of the other parent, if known, unless parental rights to the child have been terminated;

(f) a requirement that the parent provide Tribal Social Services Department (TSSD) with the names and addresses of extended family members who may be considered as placement options for the child who is the subject of the proceeding; and

(g) any other temporary disposition that may be required in the best interests of the child.

(3) An order for removal of a child from the home must include a finding that continued residence of the child with the parent is contrary to the welfare of the child or that an out-of-home placement is in the best interests of the child.

(4) The order for immediate protection of the child must require the person served to comply immediately with the terms of the order and to appear before the court issuing the order on the date specified for a show cause hearing.  Upon failure to comply or show cause, the court may hold the person in contempt or place temporary physical custody of the child with Tribal Social Services Department (TSSD) until further order.

(5) The petition shall be served as provided on the legal guardian and the person from whom the child was removed. (Rev. 9-13-12) 

3-2-303. Show cause hearing – order.

(1)

(a) A show cause hearing must be conducted within twenty (20) days of the filing of an initial child abuse and neglect petition unless otherwise stipulated by the parties pursuant to Section 3-2-401 or unless an extension of time is granted by the court, in either event no longer than sixty (60) days.  A separate notice to the court stating the statutory time deadline for a hearing must accompany any petition to which the time deadline applies.

(b) The court may grant an extension of time for a show cause hearing only upon a showing of substantial injustice and shall order an appropriate remedy that considers the best interests of the child.

(2) At the show cause hearing, the court may consider all evidence and shall provide an opportunity for a parent, guardian, or other person having physical or legal custody of the child to provide testimony.  Hearsay evidence of statements made by the affected child is admissible at the hearing.  The parent, guardian, or other person may be represented by legal counsel.  The court may permit testimony by telephone, audiovisual means, or other electronic means.

(3) At the show cause hearing, the court shall explain the procedures to be followed in the case and explain the parties’ rights as delineated in Sections 3-2-104 and 3-2-303 (2), and the right to challenge the allegations contained in the petition.  The parent, guardian, or other person having physical or legal custody of the child must be given the opportunity to admit or deny the allegations contained in the petition at the show cause hearing. 

(4) The court shall make written findings on issues including but not limited to the following:

(a) whether the child should be returned home immediately if there has been an emergency removal or remain in temporary out-of-home care or be removed from the home;

(b) if removal is ordered or continuation of removal is ordered, why continuation of the child in the home would be contrary to the child’s best interests and welfare;

(c) whether Tribal Social Services Department (TSSD) has made reasonable efforts to avoid protective placement of the child or to make it possible to safely return the child to the child’s home;

(d) financial support of the child including inquiry into the financial ability of the parents, guardian, or other person having physical or legal custody of the child to contribute to the costs for the care, custody, and treatment of the child and requirements of a contribution for those costs pursuant to Section 3-2-104 (5); and

(e) whether another hearing is needed and, if so, the date and time of the next hearing.  

(5) The court may consider:

(a) terms and conditions for parental visitation; and

(b) whether orders for examinations, evaluations, counseling, immediate services, or protection are needed.

(6) Following the show cause hearing, the court may enter an order for the relief requested or amend a previous order for immediate protection of the child if one has been entered.  The order must be in writing.  

(7) Adjudication of a child as a child in need of care may be made at the show cause hearing if the requirements of Section 3-2-302 (2) and (3) are met.  If not made at the show cause hearing, adjudication under Sections 3-2-608 and 3-2-609 must be made within the time limits required by Section 3-2-608 (1) unless adjudication occurs earlier by stipulation of the parties pursuant to Section 3-2-401 and order of the court.

(8) If the determination concerning reasonable efforts to prevent the removal is not made as specified above, the child is not eligible under the title IV-E foster care maintenance payments program for the duration of that stay in foster care. (Rev. 9-13-12)

3-2-304. Service of Process – Service by Publication – Effect.

(1) Except as otherwise provided in this chapter, service of process must be made as provided in the Federal Rules of Civil Procedure.  

(2) If a person cannot be served personally or by certified mail, the person may be served by publication as provided hereinafter in this section.  Publication constitutes conclusive evidence of service, and a hearing must then proceed at the time and date set, with or without the appearance of the person served by the publication.  At or after the hearing, the court may issue an order that will adjudicate the interests of the person served by publication.

(3) If a parent cannot be identified or found prior to the initial hearings allowed by Sections 3-2-302 and 3-2-303, the court may grant the following relief, pending service by publication on the parent who cannot be identified or found and based upon service of process on only the parent, guardian, or other person having legal custody of the child;

(a) immediate protection;

(b) temporary investigative authority; and

(c) temporary legal custody.

3-2-305. Service by Publication – Summons – Form.

(1) Before service by publication is authorized in a proceeding under this chapter, Tribal Social Services Department (TSSD) shall file with the court an affidavit stating that, after due diligence, the person cannot be identified or found and stating the diligent efforts made to identify, locate, and serve the person.  The affidavit is combined with any other affidavit filed by Tribal Social Services Department (TSSD).  Upon complying with this subsection, Tribal Social Services Department (TSSD) may obtain an order for the service to be made upon the party by publication.  The order may be issued by either the judge or the clerk of court.

(2) Service by publication must be made by publishing notice three times, once each week for three (3) successive weeks:

(a) in a newspaper in a community in which the publication can reasonably be calculated to be seen by the person, based upon the last-known address or whereabouts, if known, of the person if in the state of Montana; or

(b) if no last-known address exists, if the last-known address is outside Montana, or if the identify of the person is unknown, in a newspaper in the county in which the action is pending, if a newspaper is published in the county, and, if a newspaper is not published in the county, in a newspaper published in an adjoining county and having a general circulation in the county.

(3) Service by publication is complete on the date of the last publication required by subsection (2).

(4) A summons required under this chapter must:

(a) be directed to the parent, legal guardian, other person having legal custody of the child, or any other person who is required to be served; and

(b) be signed by the clerk of court, be under the seal of the court, and contain:

(i) the name of the court and the cause number;

(ii) the initials of the child who is the subject of the proceedings;

(iii) the name of the child’s parents, if known;

(iv) the time within which an interested person shall appear;

(v) Tribal Social Services Department (TSSD)’s address;

(vi) a statement in general terms of the nature of the proceedings, including the date and place of birth of the child, the date and place of the hearing, and the phone number of the clerk or the court in which the hearing is scheduled; and

(vii) notification apprising the person served by publication that failure to appear at the hearing will constitute a denial of interest in the child, which denial may result, without further notice of this proceeding or any subsequent proceeding, in a judgment by default being entered for the relief requested in the petition.(Rev. 9-13-12)

3-2-306. Putative Fathers – Service by Publication – Continuation of Proceedings.  

(1) Reasonable efforts must be made to resolve issues of paternity, if any, as early as possible in proceedings under this chapter.  Tribal Social Services Department (TSSD) shall make every reasonable effort to obtain service of process of a petition on a putative father as defined in Section 3-2-304 (1).

(2) If a putative father cannot be served personally, the putative father may be served by publication as provided in Sections 3-2-304 and 3-2-305.

(3) Regardless of the provisions of subsections (1) and (2), if a putative father cannot be identified or found prior to the initial hearings, the court may grant the following relief, pending service by publication on the putative father and based upon service of process on only the parent, guardian, or other person having legal custody of the child:

(a) immediate protection;

(b) temporary investigative authority; and

(c) temporary legal custody.

(4) Throughout the proceedings, the court, in its discretion, may order Tribal Social Services Department (TSSD) to continue to attempt to identify, locate and serve a putative father.

(5) A court may order termination of the parental rights of a putative father under this chapter based on service by publication provided for in Section 3-2-306, if the provisions of subsections (2), (3) and (4) are met.  (Rev. 9-13-12)

 

Part 4 - Cooperative/Diversion Alternatives.

3-2-401. Stipulations.  

Subject to the approval by the court, the parties may stipulate to any of the following:

(1) the child meets the definition of a child in need of care by the preponderance of the evidence;

(2) a service treatment agreement, if the child has been adjudicated a child in need of care;

(3) the disposition; or

(4) extension of timeframes contained in this chapter, except for the time frame contained in Section 3-2-701 (permanency hearing).

3-2-402. Voluntary Protective Services Agreement.

(1)

(a) Tribal Social Services Department (TSSD) may provide voluntary protective services by entering into a written voluntary protective services agreement with a parent or other person responsible for a child’s welfare for the purpose of keeping the child safely in the home.

(b) Tribal Social Services Department (TSSD) shall inform a parent or other person responsible for a child’s welfare who is considering entering into a voluntary protective services agreement that the parent or other person may have another person of the parent’s or responsible person’s choice present whenever the terms of the voluntary protective services agreement are under discussion by the parent or other person responsible for the child’s welfare and Tribal Social Services Department (TSSD).  Reasonable accommodations must be made regarding the time and place of meetings at which a voluntary protective services agreement is discussed.

(2) A voluntary protective services agreement may include provisions for:

(a) a family group decision making meeting and implementation of a safety plan developed during the meeting;

(b) a professional evaluation and treatment of a parent or child, or both;

(c) a safety plan for the child;

(d) in-home services aimed at permitting the child to remain safely in the home;

(e) temporary relocation of a parent in order to permit the child to remain safely in the home;

(f) a thirty (30)-day temporary out-of-home protective placement; or

(g) any other terms or conditions agreed upon by the parties that would allow the child to remain safely in the home or allow the child to safely return to the home within the thirty (30)-day period, including referrals to other service providers.

(3) A voluntary protective services agreement is subject to termination by either party at any time.  Termination of a voluntary protective services agreement does not preclude Tribal Social Services Department (TSSD) from filing a petition pursuant to Section 3-2-601 in any case in which Tribal Social Services Department (TSSD) determines that there is a risk of harm to a child.

(4) If a voluntary protective services agreement is terminated by a party to the agreement, a child who has been placed in a temporary out-of-home placement pursuant to the agreement must be returned to the parents within two (2) working days of termination of the agreement unless a petition for emergency protective services is filed by Tribal Social Services Department (TSSD). (Rev. 9-13-12)

3-2-403. Voluntary Placement Agreement Limitation.  

In the event the child is not returned to the family home within 120 days after removal and the child’s removal from the home is based on a voluntary agreement signed by both parents and Tribal Social Services Department (TSSD), the Tribal Social Services Department (TSSD) worker shall submit a Report to Court to the Tribal Social Services Department (TSSD) Advocate or Tribal Attorney to initiate Temporary Protective Care Proceedings pursuant to Section 3-2-601.  (Rev. 9-13-12)

3-2-404. Informal Adjustment Conference.

(1) It shall be the duty of Tribal Social Services Department (TSSD), the Tribal Advocates, and the Tribal Court to encourage satisfactory, out-of-court solutions to cases under this Code prior to the final disposition hearing.

(2) Any party to a proceeding may request an informal adjustment conference.  The request shall be granted one time as a matter of right and thereafter at the discretion of the court.  The request may be made at any time, after the filing of a petition, up to the court’s issuance of the order following final disposition hearing.

(3) Such parties may be present at the conference as the court may direct.  The Judge may be present.  Alternatives to further proceedings may be discussed. 

(4) Any disposition of the case pursuant to such a conference must be voluntarily agreed to by all parties to the proceedings.  If such disposition is agreed to, the court shall enter a conference agreement, and this shall have the effect of a court order. 

(a) The conference agreement must address whether TSSD Social Service made reasonable efforts to reunify the family and whether it is contrary to the welfare/best interests of the child to remain in or return to the family home.

(b) The conference agreement may include the following dispositions:

(i) release of the child to the parent or guardian with no further action, and dismiss the case;

(ii) suspend the proceedings for a specified time, releasing the child to the parent, guardian, or other person as the court may direct, with appropriate remedial conditions; or

(iii) order final disposition of the case.

(5) The informal adjustment conference granted as a matter of right must occur within ten (10) working days of the request for the conference and an informal adjustment conference granted at the discretion of the court must both occur within ten (10) working days of the court’s decision to allow the conference.

(6) An informal adjustment conference granted by the court (as a matter of right or in the court’s discretion), or a conference agreement entered by the court shall not postpone or otherwise delay the permanency hearing as provided for in Section 3-2-701. (Rev. 9-13-12)

 

Part 5 - Temporary Investigative Authority

3-2-501. Temporary Investigative Authority.  

Tribal Social Services Department (TSSD) Advocate or a Tribal Attorney may petition the court for authorization to conduct an investigation into allegations of child abuse or neglect when necessary.  An order for temporary investigative authority may not be issued for a period longer than ninety (90) days.  (Rev. 9-13-12)

3-2-502. Burden of Proof.  

The person filing the petition has the burden of presenting evidence establishing probable cause of the issuance of an order for temporary investigative authority after the show cause hearing if applicable.

 

Part 6 - Temporary Protective Care 

3-2-601.  Petition for Temporary Protective Care.  

All court proceedings under this part shall be initiated by a petition entitled “Petition for Declaration of Child in Need of Care.”  Such petition shall be prepared and filed by the Tribal Social Services Department (TSSD) Advocate or a Tribal Attorney, and shall be accompanied by a Report to Court with findings of the designated Tribal Social Services Department (TSSD) worker recommending Temporary Protective Care.

(1) The petition shall contain the following information:

(a) The name and birth date of the child;

(b) The name of the parents or guardian of the child;

(c) The basis of the court’s jurisdiction;

(d) An allegation that the child is a child in need of care, and a plain statement of facts supporting this allegation;

(e) Any facts relevant to the present physical or legal custody of the child;

(f) A summary of efforts made by Tribal Social Services Department (TSSD) or others to prevent or eliminate the need for removal of the child from the family home;

(g) An allegation that it is contrary to the welfare of the child to remain in the home without an order granting temporary custody of the child with Tribal Social Services Department (TSSD); 

(h) Whether temporary custody of the child is requested by Tribal Social Services Department (TSSD);

(i) A statement of any other relief requested by Tribal Social Services Department (TSSD), including termination of any parental or guardian rights or appointment of a substitute guardian.

(2) Petition shall be accompanied by a Report to Court from Tribal Social Services Department (TSSD) which details facts supporting the petition.  (Rev. 9-13-12)

3-2-602. Reasonable Efforts Unnecessary.  

Reasonable efforts to prevent a child’s removal from home or to reunify the child and family are not required if Tribal Social Services Department (TSSD) obtains a judicial determination that such efforts are not required because the court determined that the parent has:

(a) subjected the child to aggravated circumstances, including but not limited to torture, chronic abuse, or sexual abuse, or chronic, severe neglect of a child;

(b) committed, aided abetted, attempted, conspired, or solicited deliberate or mitigated deliberate homicide of a child;

(c) committed aggravated assault against a child;;

(d) committed neglect of a child that resulted in serious bodily injury or death; or

(e) had parental rights to the child’s sibling or other child of the parent involuntarily terminated and the circumstances related to the termination of parental rights are relevant to the parent’s ability to adequately care for the child at issue. (Rev. 9-13-12)

3-2-603. Permanency Plan When Reasonable Efforts Not Necessary.  

In the event the court determines that reasonable efforts to prevent removal or reunify are not required, Tribal Social Services Department (TSSD) shall submit a Report to Court to the Tribal Social Services Department (TSSD) Advocate or Tribal Attorney within fifteen (15) days of the judicial determination (excluding weekends and holidays) which sets forth a permanency plan (as specified in Section 3-2-611 (3).  A hearing to present the permanency plan to the court shall be held within thirty (30) days from the time of the judicial determination that reasonable efforts to prevent removal or reunify were not required. (Rev. 9-13-12)

3-2-604. Notice.  

Written notice of any initial hearing or other hearing held under this chapter shall be given, at least five (5) days prior to hearing date, to all parents or legal guardians of the child, and to other persons as the court may direct.  A copy of the petition shall also be served no later than five (5) days prior to the hearing.

3-2-605. Service.  

Service for this section shall be made pursuant to the procedures specified in Section 3-2-304.

3-2-606. Intervention in Proceedings.  

Intervention into the proceedings shall be allowed as follows:

(1) Any extended family member shall be allowed to intervene as an interested party.

(2) Community counselors, spiritual leaders, and other persons may be allowed to intervene as interested parties at the discretion of the court.  Where applicable, the court shall follow the traditions and customs of the child’s Tribe regarding the involvement of such interested persons. 

(3) Notice of intervention shall be served by mail, by the clerk of the court, upon all parties to the proceedings at least five (5) days prior to hearing.  Such notice may be excused by the court if the court determines that lack of notice has not detrimentally affected the other parties.  If the court finds such detrimental effect, the court may:

(a)  deny intervention; or 

(b) continue the hearing date for an appropriate time.  (Rev. 9-13-12)

3-2-607. Right to Notice and Comment.  

The Tribal Court shall ensure that foster parents, pre-adoptive parents, and extended family caregivers of a child in foster care under the responsibility of the court are notified of any proceeding with respect to the child and are provided a right to be heard in any proceeding affecting the temporary or permanent placement of that child.  (Rev. 9-13-12)

3-2-608. Adjudication – temporary disposition – findings – order.

(1) Upon the filing of an appropriate petition, an adjudicatory hearing must be held within ninety (90) days of a show cause hearing held pursuant to Section 3-2-303.  Adjudication may take place at the show cause hearing if the requirements of subsection (2) are met or may be made by prior stipulation of the parties pursuant to Section 3-2-401 and order of the court.  Exceptions to the time limit may be allowed only in cases involving newly discovered evidence, unavoidable delays, stipulation by the parties pursuant to Section 3-2-401, and unforeseen personal emergencies.

(2) The court may make an adjudication on a petition under Section 3-2-601 if the court determines by a preponderance of the evidence that the child is a child in need of care.  Except as otherwise provided in this part, the Tribal Rules of Practice and the Federal Rules of Evidence apply to the adjudication and adjudicatory hearing.  Adjudication must determine the nature of the abuse and neglect and establish facts that resulted in Tribal Social Services’ intervention and upon which disposition, case work, court review, and possible termination are based.

(3) The court shall hear evidence regarding the residence of the child, paternity, if in question, the whereabouts of the parents, guardian, or nearest adult relative, and any other matters the court considers relevant in determining the status of the child.  Hearsay evidence of statements made by the affected child is admissible according to Federal Rules of Evidence.

(4)

(a) If the court determines that the child is not an abused or neglected child, the petition must be dismissed and any order made pursuant to Sections 3-2-302 or 3-2-303 must be vacated.

(b) If the child is adjudicated a child in need of care, the court shall set a date for a dispositional hearing to be conducted within twenty (20) days, as provided in Section 3-2-609, and order any necessary or required investigations.  The court may issue a temporary dispositional order pending the dispositional hearing.  The temporary dispositional order may provide for any of the forms of relief listed in Section 3-2-609 (3).

(5)

(a) Following the adjudicatory hearing, the court shall make written findings on issues, including but not limited to the following:

(i) which allegations of the petition have been proved or admitted, if any;

(ii) whether reasonable efforts to prevent or eliminate the need for removal of the children from the family home, and/or reasonable efforts to allow the children to return or remain in the family home have been made by Tribal Social Services Department (TSSD) and the specific efforts put forth;

(iii) whether it is contrary to the welfare of the children to return or remain in the family home without the services offered by Tribal Social Services Department (TSSD) and the reasons therefore.

(b) The court shall enter a temporary order, including but not limited to the following:

(i) examinations, evaluations, or counseling of the child or parents in preparation for the disposition hearing;

(ii) that Tribal Social Services Department (TSSD) shall evaluate the noncustodial parent or relatives as possible caretakers, if not already done;

(iii) that the perpetrator of the alleged child abuse or neglect be removed from the home, if the perpetrator is under the jurisdiction of Tribal Court, in order to allow the child to remain in the home;

(iv)  that Tribal Social Services Department (TSSD) shall continue efforts to notify the noncustodial parent; and

(v) any other relief deemed appropriate by the court.  (Rev. 9-13-12)

3-2-609. Disposition – hearing – order.

(1)Unless a petition is dismissed or unless otherwise stipulated by the parties pursuant to Section 3-2-401, or ordered by the court, a dispositional hearing must be held on every petition filed under this chapter within twenty (20) days after an adjudicatory order has been entered under Section 3-2-608.  Exceptions to the time limit may be allowed only in cases involving newly discovered evidence, unavoidable delays, stipulation by the parties pursuant to Section 3-2-401, and unforeseen personal emergencies.

(2)

(a) A dispositional order must be made after a dispositional hearing that is separate from the adjudicatory hearing under Section 3-2-608.  The hearing process must be scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues.  Hearsay evidence is admissible at the dispositional hearing.

(b) A dispositional hearing may follow an adjudicatory hearing in a bifurcated manner immediately after the adjudicatory phase of the proceedings if:

(i) all required reports are available and have been received by all parties or their attorneys at least five (5) working days in advance of the hearing; and 

(ii) the judge has an opportunity to review the reports after the adjudication.

(c) The dispositional hearing may be held prior to the entry of written findings required by Section 3-2-608 (5) (a).

(3) If a child is found to be a child in need of care under Section 3-2-608 (4) (b), the court may enter its judgment, making any of the following dispositions to protect the welfare of the child:

(a) permit the child to remain with the child’s custodial parent or guardian, subject to those conditions and limitations the court may prescribe;

(b) order the placement of the child with the noncustodial parent, superseding any existing custodial order, and dismiss the proceeding with no further obligation on the part of Tribal Social Services Department (TSSD) to provide services to the parent with whom the child is placed or to work toward reunification of the child with the parent or guardian from whom the child was removed in the initial proceeding;

(c) transfer temporary legal custody to Tribal Social Services Department (TSSD);

(d) order a party to the action to do what is necessary to give effect to the final disposition, including undertaking medical and psychological evaluations, treatment, and counseling that does not require an expenditure of money by Tribal Social Services Department (TSSD) unless Tribal Social Services Department (TSSD) consents and informs the court that resources are available for payment. Tribal Social Services Department (TSSD) is the payor of last resort after all family, insurance, and other resources have been examined;

(e) order further care and treatment as the court considers in the best interests of the child that does not require an expenditure of money by Tribal Social Services Department (TSSD) unless Tribal Social Services Department (TSSD) consents and informs the court that resources are available for the proposed care and treatment.  Tribal Social Services Department (TSSD) is the payor of last resort after all family, insurance, and other resources have been examined pursuant to Section 3-2-104 (5).

(4) If reasonable efforts have been made to prevent removal of a child from the home or to return a child to the child’s home but continuation of the efforts is determined by the court to be inconsistent with permanency for the child, Tribal Social Services Department (TSSD) shall make reasonable efforts to place the child in a timely manner in accordance with a permanent plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

(5) If the court finds that reasonable efforts are not necessary pursuant to Section 3-2-602 or subsection 3 (b) of this section, a permanency hearing must be held within thirty (30) days of that determination and reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

(6) If the time limitations of this section are not met, the court shall review the reasons for failure and order an appropriate remedy that considers the best interests of the child.  (Rev. 9-13-12)

3-2-610. Service Treatment Plans.

(1) The court may order a treatment plan if:

(a) the parent or parents admit the allegations of an abuse and neglect petition;

(b) the parent or parents stipulate to the allegations of abuse or neglect pursuant to Section 3-2-401; or

(c) the court has made an adjudication under Section 3-2-608 (2) that the child is a child in need of care.

(2) Every treatment plan must contain the following information:

(a) the identification of the problems or conditions that resulted in the abuse or neglect of a child;

(b) the treatment goals and objectives for each condition or requirement established in the plan.  If the child has been removed from the home, the treatment plan must include but is not limited to the conditions or requirements that must be established for the safe return of the child to the family.

(c) the projected time necessary to complete each of the treatment objectives;

(d) the specific treatment objectives that clearly identify the separate roles and responsibilities of all parties addressed in the treatment plan, including Tribal Social Services Department (TSSD) specific responsibilities to make reasonable efforts to assist the parents in their efforts toward reunification; and

(e) the signature of the parent or parents or guardian, unless the plan is ordered by the court.

(3) A treatment plan may include but is not limited to any of the following remedies, requirements, or conditions:

(a) the right of entry into the child’s home for the purpose of assessing compliance with the terms and conditions of a treatment plan;

(b) the requirement of either the child or the child’s parent or guardian to obtain medical or psychiatric diagnosis and treatment through a physician or psychiatrist licensed in the state of Montana;

(c) the requirement of either the child or the child’s parent or guardian to obtain psychological treatment or counseling;

(d) the requirement of either the child or the child’s parent or guardian to obtain and follow through with alcohol or substance abuse evaluation and counseling, including evaluation and treatment for alcohol and drug abuse, if necessary;

(e) the requirement that either the child or the child’s parent or guardian be restricted from associating with or contacting any individual who may be the subject of a Tribal Social Services Department (TSSD) investigation;

(f) the requirement that the child be placed in temporary medical or out-of-home care;

(g) the requirement that the parent, guardian, or other person having physical or legal custody furnish services, or apply for services that the court may designate.

(4) A treatment plan may not be altered, amended, continued, or terminated without the approval of the parent or parents or guardian pursuant to a stipulation and order or order of the court.

(5) A treatment plan must contain a notice provision advising parents:

(a) of timeliness for hearings and determinations required under this chapter;

(b) that the Tribe is required by federal and Tribal laws to hold a permanency hearing to determine the permanent placement of a child no later than twelve (12) months after a judge determines that the child has been abused or neglected or twelve (12) months after the first sixty (60) days that the child has been removed from the child’s home;

(c) that if a child has been in foster care for fifteen (15) of the last twenty-two (22) months, Tribal law presumes that an alternative permanent living arrangement for the child in the best interests of the child and the Tribes are required to file a petition to effectuate such permanent living arrangement; and

(d) that completion of a treatment plan does not guarantee the return of a child and that completion of the plan without a change in behavior that caused removal in the first instance may result in termination of parental rights. (Rev. 9-13-12)

3-2-611. Permanency Planning.

Concurrent with temporary protective care Tribal Social Services Department (TSSD) shall conduct planning for a permanent living arrangement for the child in need of care.  Such permanent living arrangement can be reunification with parents, long term custody, guardianship with a fit and willing extended family member, and/or adoption as specified in Section 3-2-801 (7). 

(1) A child is considered to have entered foster care the earlier of:

(a) the date of the first judicial finding that the child has been abused or neglected, or;

(b) sixty (60) days after the date from when the child was removed from the family home.

(2) In the event Temporary Protective Care is not terminated within eleven (11) months from the date that a child is considered to have entered foster care, Tribal Social Services Department (TSSD) shall submit a Report to Court to the Tribal Social Services Department (TSSD) Advocate or Tribal Attorney which sets forth a permanency plan for permanent placement of the child.

(3) The Report to the Court prepared by the TSSD Social worker shall contain the following information:

(a) Tribal Social Services Department (TSSD) worker’s efforts to effectuate the permanency plan for the child;

(b) Options for the child’s permanent placement;

(c) Statement of the reasons for excluding higher priority options; and

(d) Statement of the proposed Permanency Plan, including specific time lines for achieving the plan. (Rev. 9-13-12)

3-2-612. Permanency Placement Options.  

Permanent placement options for any child in need of care placed in temporary protective care shall be in the following order of priority:

(a) with the parent or parents;

(b) a member of the child’s extended family as defined in Section 3-2-102(10);

(c) an Indian foster home licensed, approved by Tribal Social Services Department (TSSD), or specified by the Indian child’s tribe;

(d) a foster home licensed, approved, or specified by the Indian child’s tribe;

(e) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or

(f) an institution for children approved by Tribal Social Services Department (TSSD).  (Rev. 9-13-12)

 

Part 7 - Long-Term Care - Permanent Living Arrangement

3-2-701. Permanency hearing.

The court shall hold a permanency hearing as follows:

It is the goal of the Salish and Kootenai Tribes to create permanency for its children who are unable to remain with their birth family and are under the supervision of Tribal Social Services. To further that goal, it is the intent of CSKT that no more than 30% of the total number of children in foster care will have been in care for 24 months or more.  TSSD will strive to locate a permanent home for any child who has been in care for more than one year, will identify priorities in placement alternatives, will develop strategies to place children in permanent homes and work to eliminate barriers to the identified strategies.   

(1) The court shall hold a permanency hearing as follows.

(a) The court shall hold a permanency hearing within thirty (30) days of a determination that reasonable efforts to provide preservation or reunification services are not necessary under Sections 3-2-602 or 3-2-609 (3) (b).

(b) The court shall hold a permanency hearing no later than twelve (12) months after the initial court finding that the child has been subjected to abuse or neglect or twelve (12) months after the child’s first 60 days of removal from the home, whichever comes first.

(c) Within twelve (12) months of a hearing under subsection (1) (b) and every twelve (12) months thereafter until the child is permanently placed in either an adoptive or a guardianship placement, the court shall conduct a hearing and issue a finding as to whether Tribal Social Services has made reasonable efforts to finalize the permanency plan for the child.

(d) A permanency hearing is not required if the proceeding has been dismissed, the child was not removed from the home, the child has been returned to the child’s parent or guardian, or the child has been legally adopted or appointed a legal guardian.

(e) The permanency hearing may be combined with a hearing that is required in other sections of this part or with a review held pursuant to Sections 3-2-608 (2) or 3-2-609 (6) if held within the applicable time limits.  If a permanency hearing is combined with another hearing or a review, the requirements of the court related to the disposition of the other hearing or review must be met in addition to the requirements of this section.

(2) At least five (5) working days prior to the permanency hearing, Tribal Social Services shall submit a report regarding the child to the entity that will be conducting the hearing for review.  The report must address the TSSD Social Service’s efforts to effectuate the permanency plan for the child, address the options for the child’s permanent placement, examine the reasons for excluding higher priority options, and set forth the proposed plan to carry out the placement decision, including specific times for achieving the plan.

(3) At least five (5) working days prior to the permanency hearing, the guardian ad litem or an attorney or advocate for a parent or guardian may submit an informational report to the court for review.

(4) Before or at the permanency hearing, the court shall consult with the child, in an age-appropriate manner, regarding the proposed permanency or transition plan for the child.  In any permanency hearing held with respect to the child, including any hearing regarding the transition of the child from foster care to independent living, procedural safeguards shall be applied to assure the court or administrative body conducting the hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency or transition plan for the child.

(5) The court’s order must be issued within twenty (20) days after the permanency hearing.   If a member of the child’s extended family has requested that custody be awarded to that family member, or that a prior grant of temporary custody with that family member be made permanent, Tribal Social Services shall investigate and determine if awarding custody to that family member is in the best interests of the child.  The Tribal Social Services shall provide the reasons for any denial to the court.  If the court accepts the Tribal Social Services’ custody recommendation, the court shall inform any denied family member of the reasons for the denial to the extent that confidentiality laws allow.  The court shall include the reasons for denial in the court order if the family member who is denied custody requests it to be included.

(6) The court shall approve a specific permanency plan for the child and make written findings on:

(a) whether the permanency plan is in the best interests of the child;

(b) whether Tribal Social Services has made reasonable efforts to finalize the plan;

(c) other necessary steps that Tribal Social Services is required to take to effectuate the terms of the plan; and

(d) whether termination of parental rights is in the best interests of the child.

(7) In its discretion, the court may enter any other order that it determines to be in the best interests of the child that does not conflict with the options provided in subsection (8). 

(8) Permanency options include:

(a) reunification of the child with the child’s parent or guardian;

(b) adoption;

(c) appointment of a guardian pursuant to Section 3-2-903; or

(d) long-term custody if the child is in a planned permanent living arrangement and if it is established by a preponderance of the evidence, which is reflected in specific findings by the court that:

(i) the child is being cared for by a fit and willing relative;

(ii) the child has an emotional or mental handicap that is so severe that the child cannot function in a family setting and the best interests of the child are served by placement in a residential or group setting;

(iii) the child is at least 16 years of age and is participating in an independent living program and that termination of parental rights is not in the best interests of the child;

(iv) the child’s parent is incarcerated and circumstances, including placement of the child and continued, frequent contact with the parent, indicate that it would not be in the best interests of the child to terminate parental rights of that parent; or

(v) the child meets the following criteria:

(A) the child has been adjudicated a child in need of care;

(B) Tribal Social Services has made reasonable efforts to reunite the parent and child, further efforts by Tribal Social Services would likely be unproductive, and reunification of the child with the parent or guardian would be contrary to the best interests of the child;

(C) there is a judicial finding that other more permanent placement options for the child have been considered and found to be inappropriate or not to be in the best interests of the child; and

(D) the child has been in a placement in which the foster parent or relative has committed to the long-term care and to a relationship with the child, and it is in the best interests of the child to remain in that placement.

(9) The court may terminate a planned permanent living arrangement upon petition of the birth parents or Tribal Social Services if the court finds that the circumstances of the child or family have substantially changed and the best interests of the child are no longer being served.

(10) In the case of a child who will not be returned to the parent, the court shall consider in state and out of state placement options.  In the case of a child placed out of the state in which the home of the parent(s) of the child is located , the court shall determine whether the out of state placement continues to be appropriate and in the best interests of the child.

(11) In the case of a child who has attained the age of 16, the court shall consider the services needed to assist the child to make the transition from foster care to independent living. (Rev. 9-13-12)

 

Part 8 - Termination of Parental Rights

3-2-801. Methods of Termination of Parental Rights.

The following shall be the exclusive methods of termination of parental rights:

(1) Voluntary relinquishment of parental rights; or

(2) Involuntary termination.

In the involuntary suspension or termination of parental rights, the Tribal Court shall determine whether suspension of parental rights or termination of parental rights is preferred based on the best interests of the child.  Parental rights of a natural or adoptive parent may be severed permanently.  Upon the permanent termination of parental rights, the person assuming the traditional parental rights shall be deemed an adoptive parent.  (Rev. 9-13-12)

3-2-802. Involuntary Termination of Parental Rights. 

(1) The process for involuntary termination of parental rights shall be initiated by the filing of a petition entitled “Petition to Terminate Parental Rights.”  The petition shall contain the following information:

(a) the name, age, and residence of each living parent of the child;

(b) the name, age and current residence of the child;

(c) the jurisdictional basis of the Tribal Court over the matter;

(d) a statement of facts indicating that termination of parental rights is in the best interests of the child;

(e) any facts related to the physical care or custody of the child, past or present, which may be Relevant to the petition; and

(f) recommendations for inheritance rights of the child and natural parents, including proposed disbursement of the child’s Per Capita payments, and recommendations for residual rights of the parents, including visitation and communication as specified in Section 3-2-803.

(2) Each parent not having voluntarily consented to relinquishment of parental rights shall be Given written notice of the proceedings pursuant to Section 3-2-304.

(3) No termination of parental rights may be ordered unless the court determines by proof beyond a reasonable doubt that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.  No termination of parental rights may be ordered unless, in addition, the court determines that the risk of serious emotional or physical damage to the child will continue due to circumstances that are irremediable by further efforts of the court and Tribal Social Services.

(4) When the Tribes files or joins in a petition to terminate parental rights, it concurrently begins to identify, recruit, process, and approve a qualified adoptive family for the child.  (Rev. 9-13-12)

3-2-803. Inheritance and Residual Rights.

The termination of parental rights shall not adversely affect the child’s rights and privileges as an Indian, nor as a member of any tribe to which the child is entitled to membership, nor shall it affect the child’s enrollment status with the child’s tribe, nor shall it interfere with child’s cultural level and traditional and spiritual growth as a member of the Indian community.

(1) If the court terminates parental rights, the court shall include in its order that the court has considered the question of inheritance and residual parental rights, and the court shall determine as follows:

(a) Consideration of inheritance rights:

(i) that the inheritance rights of the child and natural parents have been terminated; or

(ii) that the inheritance rights of the child or natural parents, or both, shall be continued, with such conditions as the court may place; and 

(b) Determination of parental rights:

(i) that all of the natural parents’ rights to the child have been terminated; or

(ii) that the natural parents may enjoy certain residual parental rights.  Such parental right may include:

(A) the right to communication;

(B) the right to visitation;

(C) the right or obligation to contribute to support or education;

(D) the right to be consulted regarding the child’s religious affiliation, major medical treatment, marriage, or other matters of major importance in the minor child’s life; or

(E) such other residual rights as the court may deem appropriate, considering the circumstances.

(2) The court may grant similar residual rights to extended family members upon the termination of parental rights.

(3) Nothing in this Code shall prohibit a parent whose parental rights have been terminated under judicial process to petition the court to restore the parent to certain residual parental rights. (Rev. 9-13-12)

3-2-804. Timelines and Exceptions. 

(1) The Tribe will file a petition (or, if such a petition has been filed by another party, seek to be Joined as a party to the petition) to terminate the parental rights of a parent(s):

(a) whose child has been in foster care under the responsibility of the Tribe for 15 of the most recent 22 months. The petition must be filed by the end of the child’s fifteenth (15th) month in foster care. In calculating when to file a petition for termination of parental rights, the Tribe:

(i) Will calculate the 15 out of the most recent 22 month period from the date the child entered Foster care as defined at section 475(5)(F) of Title IV-E of the Social Security Act.; 

(ii) Will use a cumulative method of calculation when a child experiences multiple exits from and entries into foster care during a 22 month period;

(iii) Will not include trial home visits or runaway episodes in calculating 15 months in foster care, and;

(iv) Only applies section 475(5)(E) of Title IV-E of the Social Security Act to a child once if the Tribe does not file a petition because one of the exceptions below applies.

(b) whose child has been determined by a court of competent jurisdiction to be an abandoned infant (as defined under Tribal law). The petition to terminate parental rights is made within 60 days of the judicial determination that the child is an abandoned infant, or;

(c) who has been convicted of one of the following felonies (Murder of another child or parent, voluntary manslaughter of another child of the parent, aiding or abetting, attempting, conspiring, or soliciting to commit such a murder or such a voluntary manslaughter  or  a felony assault that results in serious bodily injury to the child or another child of the parent) . Under such circumstances, the petition to terminate parental rights is to be made within 60 days of a judicial determination that reasonable efforts to reunify the child and parent are not required.

(2) The Tribe may elect not to file or join a petition to terminate the parental rights of a parent of This section if:

(a) At the option of the Tribe, the child is being cared for by a relative;  

(b) Documentation is available to the court that a compelling reason for determining that filing such a petition would not be in the best interests of the individual child, or;  

(c) The Social services agency has not provided to the family, consistent with the time period in the case plan, services that the Tribe deems necessary for the safe return of the child to the home, when reasonable efforts are required.  (Rev. 9-13-12)

3-2-805. Voluntary Relinquishment of Parental Rights.  

A parent may voluntarily relinquish parental rights by appearing before a Judge and knowingly and voluntarily without influence of fraud or duress, execute a written consent to relinquish parental rights, pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. Section 1902, et. seq., (ICWA) and the Tribal Children’s Code.  (Rev. 9-13-12)

3-2-806. Adoption Following Voluntary Relinquishment of Parental Rights or Involuntary Termination of Parental Rights.  

The court may allow adoption of a child whose parents have had their parental rights terminated or relinquished in accordance with the provisions of Section 3-1-106, CSKT Laws Codified.  (Rev. 9-13-12)

 

Part 9 – Suspension of Parental Rights. 

3-2-901. Methods of Suspension of Parental Rights.

The following shall be the exclusive methods of suspension of parental rights:

(a) Voluntary consent to suspension of parental rights, or;

(b) Involuntary suspension of parental rights. In the involuntary suspension of parental rights, the Tribal Court shall determine whether suspension of parental rights or termination of parental rights is preferred based on the best interests of the child. (Rev. 9-13-12)

3-2-902. Involuntary Suspension of Parental Rights.  Parental rights may be suspended involuntarily.

(1) The process for involuntary suspending parental rights shall be initiated by the filing of a Petition entitled “Petition to Suspend Parental Rights.”  The petition shall contain the following information:

(a) The name, age, and residence of each living parent of the child;

(b) The name, age and current residence of the child;

(c) The jurisdictional basis of the Tribal Court over the matter;

(d) A statement of facts indicating that suspension of parental rights is in the best interests of the child;

(e) Any facts related to the physical care or custody of the child, past, or present, which may be relevant to the petition, and;

(f) Each parent not having consented to the suspension of parental rights shall be given written notice of the proceedings pursuant to Section 3-2-304.

(2) The court shall hold a hearing upon the petition and shall determine if clear and convincing evidence exists to find that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child that will continue due to circumstances that are  irremediable by further efforts of the court and Tribal Social Services.

(3) If the court suspends the parental rights, the court shall enter an order which contains the following:

(a) The jurisdiction of the court;

(b) The duration of the suspension;

(c) A factual finding that suspension of parental rights is in the child’s best interests, and;

(d) Specific residual rights of the parents.  Such parental right may include:

(i) the right to communication;

(ii) the right to visitation;

(iii) the right or obligation to contribute to support or education;

(iv) the right to be consulted regarding the child’s religious affiliation, major medical treatment, marriage, or other matters of major importance in the minor child’s life; or

(v) such other residual rights as the court may deem appropriate, considering the circumstances.

(e) The court may grant similar residual rights to extended family members upon the suspension of parental rights.  (Rev. 9-13-12)

3-2-903. Voluntary Consent to Suspension of Parental Rights.  

Parents may voluntarily consent to suspend their parental rights.  

(1) A parent may execute a written consent for suspension of parental rights.  Such consent shall Be executed before an adult witness and shall not be invalidated by reason of the minority of the consenting parent.  

(a) The written consent shall state the name and date of birth of the consenting parent and each Child included in the voluntary consent;

(b) The written consent shall set forth the duration of the consent to suspension of parental rights;

(c) The written consent shall set forth any residual rights that the consenting parent is requesting, including but not limited to communication, visitation, contact and information.  (Rev. 9-13-12)

3-2-904. Customary Adoption or Guardianship Following Voluntary Consent to Suspension of Parental Rights or Involuntary Suspension of Parental Rights.  

The court may allow customary adoption or guardianship of a child whose parents have had their parental rights suspended or have consented to suspension of parental rights in accordance with the provisions of Part 10 or Part 11 of this Chapter.  (Rev. 9-13-12

 

Part 10 - Guardianship 

3-2-1001.  Guardianship.  

A formal guardianship may be created by petition and order of the court

(1) The process for creation of a guardianship shall be initiated by the filing of a petition entitled “Petition for Guardianship.”  The petition shall be filed in the name of the proposed guardians and shall contain the following information:

(a) The name, age and residence of each living parent of the child;

(b) The name, age, and residence of the child;

(c) The name, age, and residence of the proposed guardian(s);

(d) The jurisdictional basis of the Tribal Court over the matter;

(e) A statement of the facts indicating that guardianship is in the best interests of the child;

(f) The duration of the proposed guardianship;

(g) Whether the guardianship is consented to by each living parent of the child, and if not, any facts excusing such consent, including any facts related to the physical care or custody of the child, past or present, which may be relevant to the petition;

(h) A full statement of the value of any property of the child’s, or of which the child is expected to become entitled to during the duration of the guardianship, and recommendation for the disposition of Per Capita payments during the guardianship period.  (Rev. 9-13-12)

(2) Summary Order. The written consent of each parent consenting to the guardianship shall be filed with the petition. If each living parent has consented to the guardianship in writing as provided in Section 3-2-903, and the court determines that the guardianship is in the best interests of the child, the court may enter a summary order of guardianship without holding a hearing on the Petition.  

(3) Hearing required.  If the guardianship has not been consented to in writing by each living Parent of the child, a hearing must be held to determine if the guardianship is in the best interests of the child. Each such parent not having consented shall be given written notice of the proceedings pursuant to Section 3-2-304.

(a) At the hearing, if a non-consenting parent appears and contests the guardianship, he petition Shall be denied unless the court determines, upon clear and convincing evidence, that the guardianship is in the best interests of the child, and the non-consenting parent is unable to furnish a home for the child which is more beneficial to the needs and the normal development of the child than the home of the proposed guardian.  (Rev. 9-13-12)

3-2-1002. Order of Guardianship.  

Upon a determination that the petition should be granted, the court shall enter an order of guardianship.  Such order shall contain the following:

(1) the jurisdictional basis of the court;

(2) the name of the guardian or guardians;

(3) the duration of the guardianship;

(4) a factual finding that the guardianship is in the best interests of the child and the reasons therefor, 

(5) an order requiring the guardian to obtain authorization of the Court prior to change of residency off-reservation and/or out-of-state; and

(6) any specific conditions of guardianship, including residual rights of the parents.  (Rev. 9-13-12)

3-2-1003. Termination of Guardianship.

(1) The guardianship shall terminate upon any of the following:

(a) The duration specified in the order;

(b) The further order of the court, terminating guardianship, following a Petition to Terminate Guardianship having been filed, written notice provided to all parties of the date and time of hearing, and a hearing being held, or;

(c) The death of the guardian or other circumstances creating a practical inability of the guardian to care for the child.

(2) Upon termination of the guardianship, all legal parental rights shall be returned to the person, persons or agency having such rights prior to the creation of the guardianship.  (Rev. 9-13-12)

 

Part 11 – Customary Adoption

3-2-1101. Customary Adoption.

A customary adoption may be created by petition and order of the court.  The basis for a customary adoption shall be determined by the proposed customary parent’s relationship to the child.  If the court determines that the proposed customary parent is a member of the child’s extended family or community, or otherwise has significant ties or bond to the child, the court may order a customary adoption.

(1) The process for creation of a customary adoption shall be initiated by the filing of a petition Entitled “Petition for Customary Adoption.”  The petition shall be filed in the name of the Proposed customary parents and shall contain the following information: 

(a) The name, age and residence of each living parent of the child; 

(b) The name, age, and residence of the child; 

(c) The name, age, and residence of the proposed customary parent(s); 

(d) The jurisdictional basis of the Tribal Court over the matter; 

(e) A statement regarding the relationship of the proposed customary parent(s) to the child; 

(f) A statement of the facts indicating that customary adoption is in the best interests of the child; 

(g) The duration of the proposed customary adoption; 

(h) Whether the customary adoption is consented to by each living parent of the child, and if not, any facts excusing such consent, including any facts related to the physical care or custody of the child, past or present, which may be relevant to the petition;

(i) A full statement of the value of any property of the child’s, or of which the child is expected to become entitled to during the duration of the customary adoption, and recommendation for the disposition of Per Capita payments during the customary adoption period.  

(2) Summary Order. The written consent of each parent consenting to the customary adoption Shall be filed with the petition.  If each living parent has consented to the customary adoption in writing as provided in Section 3-2-903, and the court determines that the proposed customary parent is a member of the child’s extended family or community, or otherwise has significant ties or bond to the child, and further that the customary adoption is in the best interests of the child, the court may enter a summary order of customary adoption without holding a hearing on the Petition.   

(3) Hearing required.  If the customary adoption has not been consented to in writing by each Living parent of the child, a hearing must be held to determine if the customary adoption is in the Best interests of the child.   

(a) Each such parent not having consented shall be given written notice of the proceedings pursuant to Section 3-2-304. 

(b) At the hearing, if a non-consenting parent appears and contests the customary adoption, the petition shall be denied unless the court determines, upon clear and convincing evidence, that the customary adoption is in the best interests of the child, and the non-consenting parent is unable to furnish a home for the child which is more beneficial to the needs and the normal development of the child than the home of the proposed customary parent(s). (Rev. 9-13-12)

3-2-1102. Order of Customary Adoption.  

Upon a determination that the petition should be granted, the court shall enter an order of customary adoption.  Such order shall contain the following:

(1) The jurisdictional basis of the court;

(2) The name of the customary parent(s);

(3) The duration of the customary adoption;

(4) A factual finding that the customary parent is a member of the child’s extended family or community, or otherwise has significant ties or bond to the child; 

(5) A factual finding that the customary adoption is in the best interests of the child and the reasons therefor, and;

(6) Any specific conditions of the customary adoption, including rights of the parents. (Rev. 9-13-12) 

 

Part 12 - Referrals Under the Indian Child Welfare Act

3-2-1201. Purpose.  

The purpose of this Part is to provide for the speedy and effective procedures for the processing of referrals under the Indian Child Welfare Act of 1978 from State or Tribal Courts, in order to best protect the interests of the child of the Confederated Salish and Kootenai Tribes and the interests of the Tribes.  It is intended that the Tribes will investigate cases referred to them, and will act to transfer to the Tribal Court those cases in which transfer is in the best interests of the child.  The procedures found in this Section are aimed at producing a thoughtful and wise decision in the matter of transfers.  (Rev. 9-13-12)

3-2-1202. Receipt of Referrals.  

Referral of cases shall be received by the person or persons who shall be designated, from time to time, to the Secretary of Interior and upon the Federal Register, to receive such referrals.  Upon receipt of referral, each person so receiving shall immediately deliver the referral to the Chief Judge of the Tribal Court, or in the absence of the Chief Judge to a designated Associate Judge of the Tribal Court, and shall immediately also deliver a copy of the referral to the Clerk of the Tribal Court.  (Rev. 9-13-12)

3-2-1203. Duties of the Clerk of Court.  

The Clerk of the Tribal Court, upon receipt of such referral by a Tribal Judge, shall document in a record all essential information relevant to the referral, including:

(1) the source of the referral;

(2) the names and addresses of the child and parent, guardian, or guardian;

(3) the date of the referral;

(4) the form of the scheduled proceedings in the outside court; and

(5) the Tribal affiliation and blood quantum of the child, if known.  (Rev. 9-13-12)

3-2-1204. Duties of the Chief Judge of the Tribal Court.  

The Chief Judge of the Tribal Court, or such Associate Judge as the Chief Judge may designate, shall receive referral and, in consultation with the Tribal Attorney where practicable, shall immediately determine if it is necessary to request the twenty (20) day extension to prepare the case, and, if so, shall direct the Tribal Attorney to so request.  (Rev. 9-13-12)

3-2-1205. Investigation of Referral.  

(1) Upon receipt of referral and request of the twenty (20) day extension, the Chief Judge shall investigate the referral or direct appropriate Tribal personnel to assist in the investigation.  The investigation shall include the following.

(a) Contact appropriate sources to determine the child’s membership status of the Tribes.

(b) Investigate and determine whether the child custody referral is one properly referred to the Tribes under the Indian Child Welfare Act.

(c) Contact the parent or guardian of the child, and notify them of the fact of referral to the Tribes and the Tribes’ considering transfer of the case to Tribal jurisdiction.  Contact shall be made by personal delivery of the notice of the parent or the guardian, where practicable.  Where such personal service is not practicable, then notice shall be given by registered mail with return receipt requested.

(d) Contact social, medical, legal, or other sources to obtain necessary information regarding the circumstances of the case;

(e) Make a decision as to whether the transfer of the case would be appropriate and in the best interests of this child.  The court may consider the past and present residences of the child, the child or the child’s family ties with the Tribes or the Tribal community, any special conditions of the child in the ability of Tribal or reservation facilities to deal with such conditions, whether jurisdiction should be taken before or after the adjudication state of the proceedings, considering the location of witnesses, documents, and other evidence and the existence of subpoena and other process limitations of Tribal jurisdictions;

(f) Consider continuity in the child’s surroundings and emotional contact;

(g) Determine the wishes of the child’s family, extended family, and other interested persons; and

(h) Notify the parent, guardian, or guardian of the child, and all other interested persons having contacted the Tribal Court, of the decision regarding transfer.  Notification to parent, guardian, or guardian shall be by registered mail, return receipt requested.

(2) If the Chief Judge of the Tribal Court shall deter mine that the transfer is in the best interests of the child, the said Chef Judge shall file or cause to be filed a petition with the referring court for transfer of jurisdiction to the Tribal Court.  In addition, the court shall cause to be filed with the referring court a notice of willingness to accept jurisdiction, such affidavits, consents of parent or parents, and other documentation as may be necessary.

(3) Determine whether, without transfer, the court should intervene in the proceedings in the referring court, and, if so, cause such intervention procedures to be initiated. 

(4) The Chief Judge of the Tribal Court shall complete the above duties within ten (10) days after receiving the notice of referral, unless request has been made, in writing by registered mail, for the twenty (20) day extension as provided in the Indian Child Welfare Act.  (Rev. 9-13-12)

3-2-1206. Proceedings upon transfer.  

When transfer of a case has been made by a referring court, the Chief Judge of the Tribal Court shall immediately notify Tribal Social Services Department (TSSD) and a petition under this chapter shall be filed at the earliest practicable date.  (Rev. 9-13-12)

 

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