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Ordinance
Number 93-05.
Original Date: January 16, 1993
Subject: Juvenile Code
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SILETZ JUVENILE CODE
Siletz
Tribal Code §8.400
§8.400 PURPOSE:
(a)
Authority and Purpose
It is
the purpose of this Ordinance to assure the future of the Confederated
Tribes of the Siletz Indians of Oregon ("Siletz" or "Tribe") by establishing
procedures to protect the best interests of Siletz children and of
the Tribe and its customs and culture, as required by the Siletz Constitution.
(b)
Policy
It shall
be the policy of the Tribe, with regard to the welfare of its youth,
to:
(1)
Protect the best interests of Siletz children by preventing the
breakup of Siletz families, and promote the stability and security
of the Tribe by establishing tribal standards for the conduct of
child custody proceedings involving Siletz children;
(2)
Protect and strengthen the cultural ties and ethnic identity of
its youth wherever possible;
(3)
Secure to each minor coming before the Tribal Juvenile Court such
care, guidance, and control, preferably in his or her own home,
as will serve both the child's best interests and welfare, and the
best interests of the Siletz Tribe;
(4)
Compel the parent, custodian, or guardian of a Siletz minor to provide
a proper physical and emotional home environment for the child,
and facilitate changes or improvement in the home environment where
necessary to protect the health, safety, and development of all
Siletz children;
(5)
Secure to any child removed from his or her home the care, guidance,
and control as nearly equivalent as that which the child should
have been given by its parents to help him or her develop into a
well-adjusted, responsible adult;
(6)
Foster cooperative intergovernmental relations regarding the welfare
of Siletz children between the Siletz Tribe and the State of Oregon,
and between the Siletz Tribe and other states and tribes;
(7)
Provide child welfare services to Siletz children and families that
are in accord with the traditions, laws and cultural values of the
Tribe;
(8)
Preserve the opportunity for Siletz children to learn about their
culture and heritage, and to become productive adult members of
the Siletz tribal community by experiencing their culture on a permanent
basis.
This Code
should be liberally construed to achieve these purposes.
§8.401 DEFINITIONS:
All terms
used in this Ordinance shall be interpreted in a broad fashion designed
to encourage the jurisdiction of other Siletz Tribal Court over children
who come under the protection of this Code, and to facilitate the authority
of the Tribal Court to act to protect the interests of Siletz children
and families.
This Ordinance
shall be interpreted in light of Siletz tribal laws, customs, and traditional
child-rearing practices. Terms not specifically defined in this Ordinance
shall be defined according to their normal usage, or as defined in the
Indian Child Welfare Act, 25 USC. §§ 1901 et seq.,
as appropriate.
As use
in this Ordinance, the terms listed below shall have the following meaning:
(1)
Abandon - When a parent leaves a youth without adequate communication
or fails to support a youth and there is no indication of the parent's
willingness to assume his/her parental role for a period exceeding
two (2) years;
(2)
Administrative Review - A system, utilizing a panel of no less
than three (3) appropriate persons, to review both the case plan and
the placement of each child receiving foster case maintenance payments
from state or federal funds;
(3)
Adult - Any person subject to the jurisdiction of the Siletz
Tribe who is either eighteen (18) years of age or older, married or
otherwise emancipated;
(4)
"Best Interests of the Child" - Either the preservation of
the connection between a Siletz child and his or her culture, family,
and Tribe in a setting that is stable, secure, safe, healthy and emotionally,
spiritually, socially, and intellectually enriching, and in which
the special needs of that child, if any, may be met, or the creation
of such a connection if one does not currently exist;
(5)
"Case Plan - A written document for each child under the jurisdiction
of the court which shall include a detailed service plan designed
to reunite the family, and which is designed to achieve placement
in the least restrictive, or most family-like, setting available,
and that is in close proximity to the Parents of the child. The case
plan shall include at a minimum a detailed list of the services to
be provided to the child and family, which will provide those services,
the time frame in which the services will be provided, what standard
will be considered compliance with the services, and the respective
responsibilities of the Tribal Social Services Department and the
family and the child in making the services available and in taking
advantage of such services. The case plan shall include, at a minimum,
all requirements of the Social Security Act of 1980, P.O. 96272, for
case plans where the child is receiving foster care maintenance payments
from federal or state funds;
(6)
Case Review System - A procedure to review the status of each
child in foster care no less than once every six (6) months by the
Tribal Court and Tribal Social Services Department or Administrative
Review Panel, if appropriate;
(7)
Court - The Siletz Tribal Youth Court when exercising jurisdiction
under this Code;
(8)
Custodian - A person, other than a parent or guardian, who
has been temporary physical care, custody and control of a youth,
including the duty to provide food, clothing, shelter, medical care,
education, and supervision to the youth;
(9)
Domicile - The permanent residence of an individual. The determination
of a domicile and residence shall be in accordance with Tribal law
and custom. The domicile of a minor is presumed to be that of his
or her mother unless proven otherwise;
(10)
Extended Family Member - A person who is a tribal member and
who has reached the age of eighteen (18) and who is the minor's grandparent,
aunt, or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin, step-parent, godparent, or
traditionally appointed custodian;
(11)
Foster Care - A social service that provides substitute family
care for a child for a planned period of time when the child's own
family cannot care for him or her. It includes all out-of-home care
that is not officially sanctioned by the Tribal Social Services Department.
Out-of-home care encompasses both voluntary and involuntary placements,
short or long-term placements, and temporary or emergency placement
with a family, group home, or institution;
(12)
Guardian - A person other than the minor's parent who is by
law responsible for the care and custody of that minor or his or her
estate;
(13)
Guardian ad-litem - An adult appointed by the Court to represent
a minor in any lawsuit to which he or she may be a party, for the
protection of the minor's best interests;
(14)
Indian Custodian - An adult tribal member to whom temporary
physical care, custody and control of the minor has been transferred
either by the minor's parents or as a result of Siletz tribal custom
and tradition;
(15)
Indian Tribe - Any Indian tribe, band, nation or other organizational
group, or community of Indians traditionally recognized as an Indian
tribe by the Tribal council or recognized as eligible for services
provided to Indians by the Secretary of the Interior because of their
status as Indians, including any native groups in Alaska that are
organized pursuant to the Alaska Native Claims Settlement Act as amended;
(what will happen in Noatak?)
(16)
Indian Youth - A youth who is under the age of eighteen years
and who is either enrolled in an Indian tribe or both eligible for
enrollment in an Indian tribe and a biological child of an enrolled
Indian;
(17)
Least Restrictive Placement - A placement that most approximates
a family environment and that is in close proximity to the minor's
parent(s);
(18)
Parent - Includes natural or adoptive parents; does not include
persons whose parental rights have been terminated, and excludes any
unwed father whose paternity has not been acknowledged or established;
(19)
Presenting Officer - An individual who has been appointed by
the Tribal Council to carry out the duties and responsibilities set
forth in this Code;
(20)
Qualified Elder, Historian or Other Tribal Representative -
An individual who, because of his or her knowledge and experience,
has been certified by the Siletz Tribal council to testify as to the
traditions and customs of the Siletz Tribe before any federal, state
or tribal court, or any administrative body;
(21)
Reservation - Means Indian country as defined in Section 1151
of Title 18 USC, and any lands not included under that definition,
title to which is either held by the United States in trust for the
benefit of any Indian tribe or individual or held by any Indian tribe
or individual subject to a restriction by the United States against
alienation;
(22)
Shelter Care - A home or other living facility used as a temporary
living place for a minor pending the return of the minor to his or
her family, or his or her placement in a residential facility designed
for a long-term placement which does not physically restrict the minor;
(23)
Siletz Minor - A child who is under the age of eighteen, and
who is either the child of a Siletz member, eligible for membership
in the Siletz Tribe, or of Siletz descent.
(24)
Youth in Need of Care - A child who has been found to be in
one or more of the following situations:
(a)
An abused child who has suffered or is likely to suffer a non-accidental
physical injury 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, or who has been sexually abused or subjected to the threat
of sexual abuse;
(b)
A neglected child is a child whose parent or custodian fails or
is unable to carry out their parental or custodial duties to the
extent that the child's physical or emotional health, safety, welfare
or intellectual development are harmed or threatened, including
the failure of such parent or other custodian to take advantage
of reasonably available public assistance and service programs designed
to furnish such needs where the parent or custodian cannot provide
such needs on their own; or
(c)
An abandoned or dependent child is a child whose parent or custodian
has left the child without reasonable arrangements for care and
supervision such that the physical or emotional health of the child
is affected or threatened, or child who has no parent or other custodian
able, willing, and available to fulfill parental duties.
§8.402 JURISDICTION:
(1)
The Court shall have original jurisdiction over any proceeding concerning
a minor alleged to be in need of care, termination of parental rights,
adoptions, guardianships, or emancipation which involves:
(a)
Any minor of Siletz descent who resides or is domiciled within the
Service Area of the Tribe as that term is defined by federal and
tribal law;
(b)
Any Siletz minor, regardless of his or her residence or domicile;
(c)
Any minor who is the child of Siletz members or of their spouses;
(d)
Any Siletz minor who has been placed in the temporary care of a
member of Siletz or in any care facility licensed by the Tribe for
placement of Indian youth;
(e)
Any minor by the consent of the parties with custody of said minor;
(f)
Any minor who resides within the Siletz Reservation.
(2)
In order to effectuate its powers under this Code, the Court shall
have jurisdiction over adults in aid of its powers under this Code,
and may make such orders as are necessary for the welfare of a minor.
(3)
When state, federal or other tribal courts have jurisdiction over
any of the matters provided for in this Code, the Court has concurrent
jurisdiction over the same matters, to the extent consistent with
federal law.
(4)
The limitations on jurisdiction in this Section are not intended to
reflect the Tribe's view as to the legally permissible limits of jurisdiction
but are merely designed to limit tribal activity in this area in accordance
with tribal priorities and resources.
§8.402 JURISDICTIONAL AGREEMENTS:
The Tribe
may enter into such intertribal and tribal-state agreements regarding
jurisdiction over child custody matters as it deems appropriate and
necessary to protect the best interest of Siletz minor.
§8.403 DUTY TO INVESTIGATE AND REPORT ABUSE AND NEGLECT:
(a)
Basis of Investigation - Persons who have a reasonable cause
to suspect that a minor has been abused or neglected shall report
the suspected abuse or neglect to the Tribal Social Services Department.
The Tribal Social Services Department, or a tribal law enforcement
agency, after one is established, shall immediately investigate all
allegations of abuse and neglect, and if appropriate, proceed according
to the provisions of this Code.
(b)
Persons Required to Report - Although any person may make a
report of suspected abuse or neglect to the proper tribal officials,
those persons who are required to report suspected abuse or neglect
include:
(1)
A physician, nurse, dentist, optometrist, or other mental health
professional;
(2)
A school principal, school teacher, or any other school official;
(3)
A child day care center worker or other child care staff, including
foster parent(s), residential care of institutional personnel;
(4)
A counselor of any kind;
(5)
A peace officer or other law enforcement official; and
(6)
A Judge, attorney, court counselor, Clerk of Court or other judicial
system official.
(c)
Anonymity - Any individual who files a report of suspected
abuse or neglect may, upon request and approval of the Court, remain
anonymous, except those individuals who are required to report abuse
pursuant to Subsection (E)(2), above.
(d)
Immunity from Liability - All persons or agencies reporting
in good faith, known or suspected instances of abuse or neglect, shall
be immune from either civil liability or criminal prosecution for
such report.
§8.404 RECORDS MAINTENANCE AND CONFIDENTIALITY:
(a)
Records - A record of all hearings under this Code shall be
made and preserved until the jurisdiction of the Court has ended.
(b)
Confidentiality of Proceedings/Records - All court files, documents,
or other material associated with a child custody proceeding that
is governed by this Code, including the release of the names of children,
families, or witnesses involved in said proceedings, shall be kept
confidential, unless released by order of the Court, and shall not
be open to inspection other than by court personnel or by any individual
other than the following:
(1)
The minor and his or her attorneys;
(2)
The minor's parent(s), guardian, or custodian and his or her attorney;
(3)
The tribal caseworker and the tribal attorney;
(4)
The presenting officer; or
(5)
Any other person who the Court determines has a valid reason to
see the records and for whom the Court issues a written order detailing
the reasons for permitting said person to review the records.
This
confidentiality provisions applies to all divisions and departments
of the Tribe, including social service and law enforcement agencies.
Disclosure of documents and material to authorized public agencies
in the performance of the official duties of those agencies, whether
tribal, federal, or state, does not violate the mandates of this section.
All
records included within this section shall be kept in a secure place
by the Court Clerk, and shall be released only pursuant to procedures
developed by the Chief Judge of the Court.
(c)
Oath of Confidentiality - Each person who inspects records
pertaining to child custody proceedings encompassed within this Code
is required to sign a written oath pledging to maintain the confidentiality
of the records. Failure to abide by this pledge shall constitute contempt
of court.
§8.405 MEDICAL EXAMINATIONS:
The Court
may order medical and/or psychological examinations for a minor or any
other party who is before the Court pursuant to this Code if the Court
determines, after a hearing, that the party's medical or psychological
health are relevant to the issues before the Court.
§8.406 PAYMENT OF FEES AND EXPENSES:
There
shall be no fee for filing a petition under this Code, nor shall any
trial officer charge any fee for the service of process or for the officer's
attendance in Court in any child custody proceedings. Witness fees shall
be payable in accordance with the rules of this Court. Such fees and
expenses and the cost of publication of summons shall, when approved
by the Court, be paid by either the parent (s?, guardian, or custodian
of the minor who is before the Court, or by the Tribe.
§8.407 RESPONSIBILITIES OF ADULTS:
(a)
Parental Responsibilities:
(1)
The parent of a child within the jurisdiction of the Tribal Court
may be made a party to a petition if the minor is alleged to be
a youth-in-need-of care.
(2)
The Court may order a minor's parent to submit to counseling, or,
if the Court has committed the minor for institutionalization, to
participate in any institutional treatment or counseling program,
including attendance at the site of the institution.
(3)
The Court shall order a minor's parent(s), guardian, or custodian
to pay the reasonable cost or portion of the costs of any court
proceedings pursuant to this Code, and of the support and treatment
of the minor, as the parent is financially able to pay, if:
(A)
The minor is adjudicated to be a youth-in-need-of-care; and
(B)
The Court orders that the minor be placed with an agency, institution,
or individual other than the minor's parent(s).
(b)
Responsibilities of Other Adults - The Court shall join as
a party in any child custody proceedings pursuant to this Code any
adult whose participation is necessary and proper for disposition
of the case pursuant to this Code.
§8.407 CONSOLIDATION OF CASES:
When more
than one minor is involved in the same situation that may later be found
to constitute abuse or neglect, the Court may consolidate the proceedings,
except that the Court may choose to hold separate hearings with regard
to disposition of the minors.
§8.408 MINOR'S TESTIMONY BY VIDEOTAPE:
The Court
may, within its discretion, permit a minor to testify by videotape,
or take other steps necessary to protect the minor in proceedings pursuant
to this Code, where necessary to protect the best interests of the minor.
§8.409 MODIFICATION OF COURT ORDERS:
(a)
Alternation of Court Order - The Court may, upon motion of
any of the following individuals, modify, revoke, or extend any of
its orders under this Code:
(1)
The minor and his or her attorney or legal representative;
(2)
The minor's parent(s), guardian, or custodian, and his or her attorney
or legal representative, if any:
(3)
The tribal caseworker; or
(4)
The presenting officer.
Any
hearing to modify, revoke, or extend a court order shall be conducted
pursuant to the Rules of Court.
(b)
Request for New Hearing by Parent(s), Guardian, Custodian -
A parent, guardian, or custodian of any minor whose status has been
adjudged in a proceeding pursuant to this Code, or any adult who is
affected by an order or judgment in a proceeding under this Code,
may at any time petition the Court for a new hearing on the ground
that new evidence has been discovered, which evidence was not known
at the time of the original hearing and which could not have become
available with due diligence. If the Court determines that there is
new evidence that might affect its previous order or judgment, the
Court shall order a new hearing and shall make such disposition of
the case as is warranted by all of the facts and circumstances and
by the best interest of the minor.
SILETZ
INDIAN CHILD WELFARE CODE, PART II
YOUTH IN NEED OF CARE PROVISIONS
§8.410
INITIATION OF YOUTH-IN-NEED-OF-CARE PROCEEDINGS:
(a)
Who May Initiate Proceedings. Any person may initiate youth-in-need-of-care
proceedings by filing a complaint with an enforcement officer alleging
that a child is a youth-in-need-of-care.
(b)
Contents of the Complaint. The complaint shall include:
(1)
The name, age and address of the minor who is subject of the complaint,
if known;
(2)
A plain and concise statement of the facts upon which the complaint
is based, including the date, time and location at which the alleged
facts occurred; and
(3)
The name of the complainant, which shall not be disclosed to anyone
other than a presenting officer, enforcement officer, tribal caseworker,
judicial officer, or judge, unless otherwise ordered by the Court.
(c)
Receipt of Complaint by Enforcement Officers.
(1)
Upon receiving a complaint under this Section, the enforcement officer
shall immediately notify the tribal caseworker. If the tribal caseworker
is unavailable, an enforcement officer shall immediately investigate
the complaint and determine whether further action is necessary.
Based on the investigation, a detailed written report shall be completed
and a copy sent to the tribal caseworker.
(2)
If the enforcement officer reasonably believes the minor is in immediate
and serious danger from his or her surroundings and removal is necessary
for the minor's safety or well being, the officer may take the minor
into emergency custody, provided that if a Youth Court judge or
judicial officer is available and there is sufficient time, the
enforcement officer shall first request an emergency custody order
as provided under this Code.
(3)
An enforcement officer who takes a minor into custody without first
obtaining an emergency custody order shall proceed as follows:
(A)
Immediately notify the tribal caseworker and request direction
as to whether the minor should be placed in emergency shelter
care and if so, where;
(B)
If the tribal caseworker cannot be reached, the officer may place
the minor in emergency shelter care but shall continue attempts
to notify the tribal caseworker. Placement of the minor shall
be in a facility approved by the Tribe for emergency shelter care;
(C)
Immediate and continuing efforts shall be made by both the enforcement
officer and the tribal caseworker to notify the minor's parent,
guardian or custodian as to the circumstances surrounding the
minor's custody.
(d)
Investigation of Complaint by Tribal Caseworker.
(1)
Upon receiving either a complaint under this Section or a notice
from a tribal enforcement officer, the tribal caseworker shall immediately
initiate an investigation of the complaint to determine whether
the interests of the minor and the tribal community require that
further action be taken. If circumstance requires it, the tribal
caseworker may request an enforcement officer to conduct the investigation.
(2)
The investigation shall cover the minor's home environment, history
and associations, the present condition of the minor and his or
her family, and recommendations as to the minor's future care. The
worker shall make conclusions as to the likely future of the family
if no intervention occurs. In cases involving the duty of financial
support, the study shall include such matters as earnings, assets,
financial obligations and employment;
(3)
Upon completion of the investigation, the tribal caseworker may
recommend to the presenting officer that.
(A)
No further action be taken;
(B)
A request for a mediation conference be filed; or
(C)
A petition for fact finding be filed.
(4)
If the presenting officer agrees with the tribal caseworker that
no further action need be taken, the minor shall be released immediately
if in custody.
(5)
The tribal caseworker shall not place a minor in shelter care or
take the minor into custody unless a Youth Court judge or judicial
officer has placed the minor in the custody of the Court and the
tribal caseworker reasonably believes that the youth is in an emergency
situation and requires shelter care.
§8.411 EMERGENCY CUSTODY:
(a)
Who Has Authority to Take Emergency Custody - A tribal representative
shall be designated to handle emergency custody of minors under this
Code. Once the Tribe has either established a law enforcement department
or contracted for law enforcement with another governmental agency,
the representative shall be a law enforcement officer. In the absence
of a law enforcement officer, the tribal representative shall be a
tribal social worker or some other person designated by the [General
Manager].
(b)
Conditions Permitting Emergency Custody - The tribal representative
shall take a minor into custody if:
(1)
He or she has reasonable cause to believe that the minor is a youth-in-need-of-care
and that removal is necessary because the minor is in immediate
danger from his or her surroundings;
(2)
An emergency custody order concerning the minor has been issued
by the Trial Court; or
(3)
He or she has reasonable cause to believe that a youth who is subject
to the Tribal Court's jurisdiction is leaving the jurisdiction of
the Court without permission.
(c)
Necessity for Emergency Custody Order - The Court shall issue
an order placing the minor in emergency custody if the Court finds
probable cause to believe that the minor is a youth-in-need-of-care,
and one or more of the following conditions exists
(1)
The minor is suffering from an illness or injury, and no parent,
guardian, custodian or other person is providing adequate care for
him or her;
(2)
The minor is in immediate danger from his or her surroundings, and
removal is necessary for the minors safety or well-being;
(3)
The minor will be subject to injury or abuse by others or by him
or herself if not placed in protective custody by the Court.
(4)
The minor has been abandoned by his or her parent(s), guardian,
custodian or other person;
(5)
No parent, guardian, custodian, or other person is able to provide
adequate supervision and care for the minor; or
(6)
The minor will run away, or be taken beyond jurisdiction of the
Court, and will be unavailable for further proceedings.
(d)
Emergency Placement
(1)
A minor in need of emergency placement may be placed, pending a
court hearing, with one of the following:
(A)
Extended family members who will be able to protect the health
and safety of the minor;
(B)
A foster care facility, located within the Siletz Service Area,
that has been licensed or approved by the Tribal Social Services
Department;
(C)
A private family home, located within the Siletz Service Area,
that has been licensed or approved as a foster home by the Tribal
Social Services Department;
(D)
A shelter care facility, located within the Siletz Service Area,
that has been approved by the Tribal Social Services Department;
(E)
A shelter care facility, located outside the Siletz Service Area,
that has been approved by the Tribal Social Services Department;
(F)
A foster home, located outside the Siletz Service Area, that has
been approved by the Tribal Social Services Department.
(2)
No child who is determined to be a youth-in-need-of-care shall be
determined in either a detention facility or a jail.
(e)
Releasing a Minor from Custody
(1)
The tribal representative who takes a minor into custody shall:
(A)
Release the minor, immediately, to the minor's parent, guardian,
or custodian and issue verbal instructions or warnings as may
be appropriate: or
(B)
If the tribal representative is not a tribal caseworker, deliver
the minor immediately to the caseworker or to shelter care designated
by the Court, or to a medical facility if the minor is believed
to be in need of medical attention. If the minor is not delivered
to the caseworker, the tribal representative shall notify the
caseworker as soon as possible of the circumstances of the custody
and the location of the minor.
(2)
The tribal caseworker, immediately upon arranging for custody of
the minor or upon placement of the minor, shall review the need
for custody and shall:
(A)
Notify the parent, guardian, or custodian within twenty-four hours
of learning that custody of the child has been taken; or
(B)
Release the minor to his or her parent, guardian, or custodian
unless the child requires shelter care;
(C)
A minor taken into custody under this section shall be released
to his or her parent, guardian, or custodian within five (5) days
of the time that he or she has been taken into custody unless
the Court issues an order continuing custody of the child with
the Tribe. In the event of a dispute regarding a minor's release
from custody during the first five (5) days of custody, the child
welfare caseworker and the social services director shall have
complete authority, in the absence of a Court Order, to determine
if the minor is to remain in custody.
§ 8.412 PRELIMINARY INQUIRY:
(a)
Policy - The purpose of a preliminary inquiry is to determine
the best interests of the minor and the Tribe with regard to any action
to be taken with regard to a child once he or she is taken into emergency
custody. In determining the child's best interests, the Court shall
examine whether reasonable cause exists to believe the alleged act,
abuse, or neglect was committed and whether continued custody is necessary
pending further proceedings.
(b)
Time Frame - A preliminary inquiry involving a child shall
be held within five (5) days from the time that the child is placed
in emergency custody. If the child has been released from emergency
custody, the preliminary inquiry shall be held within ten (10) days
from the date the child is released from emergency custody. If a child
has not been placed in emergency custody, the preliminary inquiry
shall be held within (10) days of the filing of the petition, if it
has not been dismissed.
(c)
Attendance of Parent(s), Guardian, Custodian - If the minor's
parent(s), guardian or custodian is not present at the preliminary
inquiry, the Court shall determine what efforts have been made to
notify them and to obtain their presence. If it appears that further
efforts are likely to produce their appearance in court, the Court
shall recess for not more than twenty-four (24) hours and shall direct
the presenting officer to make continued efforts to obtain their presence.
§8.413 INFORMAL RESOLUTION:
(a)
When Permitted - Within ten (10) days after the preliminary
inquiry, the caseworker may hold an informal resolution conference
with the minor and the minor's parent(s), guardian, custodian, or
legal representative to discuss alternatives to filing a petition
under subsection - of this Code if:
(1)
The admitted facts bring the case within the jurisdiction of the
Court;
(2)
An informal resolution of the matter would be in the best interests
of the minor and the Tribe; and
(3)
The minor and his or her parent(s), guardian, custodian, or legal
representative voluntarily consent to an informal resolution.
(b)
Written Agreement Between Parties - As a result of the informal
resolution conference, the caseworker may enter an agreement with
the minor, the minor's parent(s), guardian, custodian, or legal representative,
in which the caseworker may:
(1)
Refer the minor and his or her parent(s), guardian, custodian, or
legal representative to a community agency for needed assistance;
(2)
Order terms of supervision which:
(A)
Regulate the activities of the minor and his or her parent(s);
(B)
Are calculated to assist and benefit the minor, parent(s), guardian,
or custodian; and
(3)
Recommend that the presenting officer file a petition pursuant to
this Code if it appears that no other alternative will be in the
best interests of the minor and the Tribe.
(c)
Acceptance of Agreement by Presenting Officer
(1)
The tribal caseworker must inform the parties at the start of any
informal resolution process that the presenting officer has authority
to review and approve or disapprove any agreement that may be reached
pursuant to subsection (D) (2) of this section. In the event that
an agreement is reached between the tribal caseworker and the minor,
the minors parent(s), guardian, custodian, or legal representative,
the caseworker shall set out in writing both the agreement, and
the conclusions reached at the informal adjustment conference. The
parties must sign the agreement before the presenting officer may
review it.
(2)
The presenting officer shall review the informal agreement after
the parties sign it. The presenting officer shall accept or reject
the agreement within five (5) days of receiving it. If the presenting
officer rejects the agreement, he or she shall make written comments
indicating what conditions must be incorporated into the agreement
to make it acceptable.
(3)
The presenting officer shall file a copy of the approved agreement
with the Court, and shall provide a copy of the agreement.
(d)
Time Frame - An informal adjustment agreement shall not exceed
six (6) months in length, except that the time period may be extended
upon order of the Court.
(e)
Periodic Review of Agreement - The tribal caseworker shall
review the family progress every thirty (30) days. If, after the initial
thirty (30) day period, but before the end of six (6) months, the
caseworker concludes that the terms of the agreement as it is being
followed are not serving the best interests of the minor, the caseworker
shall recommend that the presenting officer file a petition pursuant
to this Code.
(f)
Dismissal of Petition - If the parties follow and fulfill the
terms of the agreement, and the caseworker does not recommend that
a petition be filed during the informal resolution period, the presenting
officer shall dismiss the petition at the expiration of the agreement.
(g)
Exclusion of Statements in Future Hearing - If a petition is
filed, no statements made during the course of the informal resolution
conference, whether written, oral, or demonstrative, may be used against
the minor or any of the parties or witnesses.
§8.414 PETITION:
(a)
Standard - If the Court determines that there is no probable
cause to believe that the minor is a youth-in-need-of-care, the case
shall be dismissed without prejudice and the minor shall be released.
If the Court determines that there is probable cause to believe that
the minor is a youth-in-need-of-care, but that the minor is not in
need of emergency custody, the minor shall be released to the custody
of his or her parent(s), guardian or custodian, under the protective
supervision of the Tribe, pending final disposition of the petition.
(b)
Caseworker Review/Petition - The tribal caseworker shall review
and investigate all complaints filed pursuant to this Code, and shall
file a petition with the Court upon a preliminary determination that
a child is a youth-in-need-of-care The form of the petition shall
be a form authorized pursuant to an order of the Court. The petition
shall state:
(1)
The specific sections of this Code which give the Court jurisdiction;
(2)
The provision of this Code or relevant court order which is alleged
to have been violated;
(3)
The name, address, and age of the minor who is the subject of the
petition;
(4)
The names of all parties who have made allegations concerning the
petition;
(5)
The facts upon which any allegations relating to the petition are
based, including the date, time, and location where the alleged
facts occurred, including any alleged witnesses; and
(6)
If the minor is in shelter are, or other custody, the time and date
that the minor was placed in such care and the reasons for that
placement.
The
presenting officer may assist in the preparation of any petition
under this Code.
§8.415 ADJUDICATORY HEARING ON PETITION:
(a)
Time Frame for Hearing - The Court shall hold an adjudicatory
hearing on the petition within thirty (30) days after the petition
is filed. Failure to comply with the time limits set out in this Section,
without good cause shown, shall result in the dismissal of he petition
and prevent any future filing of a petition based on the same facts.
(b)
Notice - Notice of a hearing on the petition, or on any matter
related to the petition or the minor, shall be given to the parties
as required by the Rules of Court.
(c)
Summons - Summons on the petition shall be issued and served
as required by the Rules of Court:
(1)
At least five (5) days prior to the hearing, the court shall issue
a summons to:
(A)
The youth; and
(B)
The youth's parent(s), guardian or custodian; or
(C)
Any person who the Court believes is necessary for the hearing;
and
(D)
Any person who the parties believe necessary for the hearing.
(2)
The summons shall contain the name of the Court, and the date, time
and place of the hearing.
(3)
A copy of the petition shall be attached to the summons.
(4)
The summons shall be delivered personally by a tribal law enforcement
officer or appointee of the Court. If the summons cannot be delivered
personally, it may be delivered by registered mail. If the summons
cannot be delivered personally or by registered mail, any other
method reasonably designed to give notice to the necessary persons
shall be sufficient.
(d)
Purpose of Hearing - The Court shall hear testimony concerning
the circumstances which gave rise to the petition. The Court shall
conduct the hearing for the purpose of determining if a minor is a
youth-in-need-of-care.
(e)
Least Restrictive Disposition - If the Court finds that the
minor is a youth-in-need-of-care, the Court shall dispose of the child
in a manner that is consistent with the child's best interests and
which is the least restrictive setting for the child, pursuant to
§
of this Code.
(f)
Finality of Court Order - A finding by the Court that the minor
is a youth-in-need-of-care shall be considered to be a final order
for purposes of appeal.
SILETZ INDIAN CHILD WELFARE CODE, PART III
DISPOSITION AND PLACEMENT PROVISIONS
§8.416
POLICY:
The removal
of a minor from his or her home for either temporary foster care placement,
long-term placement, or termination of parental rights must result from
a judicial determination that continued custody would be contrary to
the health and welfare of the minor. Reasonable efforts shall be made
to prevent or eliminate the need to remove the minor from his or her
home, and reasonable efforts shall be made to make possible the minor's
return to his or her home, before foster care placement, termination
of parental rights, or long-term placement can be instituted, provided
however, that nothing in this section shall prevent the emergency removal
of a child as allowed by this Code. Where more than one minor is removed
from a home, it shall be the Tribe's policy to keep all of the children
so removed in a single placement or shelter. This policy shall take
precedence over any conflicting placement preferences within this Code.
§8.417 PRE-DISPOSITIONAL REPORT:
(a)
Contents - The Court shall order the caseworker to prepare
a report to the Court for the disposition of a minor who is a youth-in-need-of-care.
The dispositional report shall be filed at least five (5) days before
the dispositional hearing, except by order of the Court. The report
shall:
(1)
Contain a specific plan for the care and assistance to the minor
or his or her parent(s), guardian or custodian which is calculated
to resolve the problems presented in the petition. The plan shall
provide for the least restrictive available alternative to the minor,
and shall be consistent with both the minor's and the Tribe's best
interests;
(2)
Contain a detailed explanation showing the necessity for the proposed
dispositional plan and the benefits to the minor and his or her
parent(s), guardian or custodian under the proposed plan;
(3)
If the caseworker recommends placement of the minor with someone
other than the minor's parent(s), guardian or custodian, the report
shall contain specific reasons for not recommending placement of
the minor with his or her parent(s), guardian or custodian.
(b)
Reports Offered by Parties - Copies of all predispositional
reports shall be served on the minor (or his or her legal representative),
and his or her parent(s), guardian, or custodian at least five (5)
days priori to the dispositional hearing. Any part may submit a separate
pre-dispositional report to the Court, which shall include his or
her own recommendations for consideration by the Court, within the
same time period set forth above.
§8.418 DISPOSITIONAL HEARING:
(a)
Time - A dispositional hearing shall take place not more than
twenty (20) days after the hearing on the petition. The dispositional
hearing may be held immediately after the hearing on the petition
if:
(1)
Either the presenting officer or one of the parties requests that
the disposition hearing be expedited because of extraordinary circumstances;
or
(2)
The Court determines that an expedited dispositional hearing is
in the best interests of the child.
The
time for the dispositional hearing shall be set at the fact finding
hearing and such announcement shall constitute notice to all the parties
of the dispositional hearing.
(b)
Purpose - The Court shall hear testimony at the dispositional
hearing for the purpose of determining the proper disposition of the
youth.
(c)
Evidence to the Considered by Court - The Court shall consider:
(1)
The pre-dispositional report submitted by the tribal caseworker;
(2)
Any alternative pre-dispositional reports submitted for review;
and
(3)
Any and all evidence presented by any party contesting the factual
contents and conclusions of the pre-dispositional reports submitted
for consideration.
(d)
The dispositional order constitutes a final order for purposes of
appeal.
§8.419 DISPOSITION OF YOUTH-IN-NEED-OF-CARE:
(a)
Priority of Dispositional Alternatives - Upon making a finding
that a minor is a youth-in-need-of-care, the Court may order any of
the following dispositions, which are listed in order of priority:
(1)
Permit the minor to remain with his or her parent(s), guardian or
custodian under protective supervision, subject to such limitations
and conditions as the Court may prescribe;
(2)
Place the minor with an extended family member under protective
supervision within the boundaries of the Service Area, subject to
such limitations and conditions as the Court may prescribe;
(3)
Place the minor in a foster home that has been licensed or approved
by the Tribe within the Service Area, under protective supervision,
subject to such limitations and conditions as the Court may prescribe;
(4)
Place the minor in a shelter care or residential facility under
protective supervision, as designated by the Court;
(5)
Place the minor in a foster home or extended family member's home
that has been approved by the Tribe, outside the Service Area, subject
to such limitations and conditions as the Court may prescribe;
(6)
Transfer legal custody of the minor to an agency responsible for
the care of youth-in-need-of-care, or to an extended family member
or other person who the Court finds to be qualified to receive and
care for the minor, subject to such limitations and conditions as
the Court may prescribe;
(7)
Recommend the initiation of proceedings for the termination of parental
rights;
(8)
Recommend that either full or partial emancipation be ordered; or
(9)
Place the minor in a long-term placement, considering long-term
guardianship as an alternative to adoption or termination of parental
rights.
(b)
Conditions Upon Parties - The Court has the authority to impose
conditions or limitations upon a minor, his or her parent(s), guardian,
custodian or any other party pursuant to this Code in order to protect
the best interests of the minor. The conditions or limitations shall
be designed to improve the condition of the child if he or she is
found to be a youth-in-need-of-care. Such conditions or limitations
include, but are not limited to:
(1)
Counseling or therapy;
(2)
Restrictions or visitation with one or both parents;
(3)
Payment of support or other necessary costs;
(4)
Participation in Tribal-sponsored activities;
(5)
Restrictions on associations;
(6)
Curfew restrictions; and
(7)
Any other conditions or dispositions which the Court finds are necessary
to protect the best interests of the minor.
(c)
Party Receiving Custody Must Agree to Submit to Tribal Court Jurisdiction
- Whenever the minor is placed in a home or facility located outside
of the Siletz Service Area, the Court shall require the party receiving
custody of the minor to sign an agreement that:
(1)
The minor will be returned to the Court upon Court Order; and
(2)
The party receiving custody of the minor consents to the jurisdiction
of the Tribal Court.
Absent
such a signed agreement, any person or institution accepting placement
of a minor pursuant to this Ordinance shall be deemed to have consented
to Tribal Court jurisdiction for purposes of determination of the
child's placement, and to return such child to the Court upon request
or order of the Court.
§8.420 REVIEW OF DISPOSITIONAL ORDER:
(a)
Time Frame for Court's Review - The Court will review dispositional
orders within its discretion; provided, however, that within six (6)
months of the original dispositional hearing and every six (6) months
thereafter so long as the child remains within the jurisdiction of
the Court, the child is in short term or temporary care, or the child
is in a placement which is not within the preferences of this Code,
the Court shall review the status of a child to:
(1)
Determine the continuing need for appropriateness both of the Court's
continuing jurisdiction and of the placement;
(2)
Determine the extent of compliance with the case plan;
(3)
Determine the extent of progress made toward easing or lessening
the cause that initially required the placement in foster care;
and
(4)
Project a likely date by which the minor may be returned home or
placed for adoption or legal guardianship.
(b)
Modification of Disposition - The Court may modify a dispositional
order at any time upon motion and a showing of good cause. Any of
the following individuals may initiate the motion:
(1)
The minor;
(2)
The minor's parent, guardian or custodian;
(3)
The tribal caseworker; or
(4)
The presenting officer.
The
tribal caseworker shall monitor the agreed disposition throughout
its term. If the tribal caseworker finds that there has been a failure
to comply with the terms of the agreed disposition, he or she may
recommend that the presenting officer file a motion for modification
of the dispositional order with the Court.
§8.421 PERMANENCY PLANNING HEARING:
(a)
Time Frame - Within eighteen (18) months of the original placement
the Court shall hold a permanency planning hearing in accordance with
this Code to determine the long-term status of the minor. The permanency
planning hearing may be combined with the periodic review.
(b)
Evidence Considered by Court - The Court shall review the reports
of the Tribal Social Services Department, and shall consider any other
evidence and testimony, including evidence concerning the parent(s)
or guardian's treatment or efforts at rehabilitation.
(c)
Standard - The Court shall return a minor to the physical custody
of his or her parent(s) unless by a preponderance of evidence it finds
that returning the minor would cause a substantial risk to the physical
or emotional well-being of the minor. The burden is on the Tribal
Social Services Department to prove that the minor will be at risk
if returned to his or her parent(s).
(c)
Dispositional Alternatives - If the Court determines not to
return the minor to his or her parent(s) pursuant to subsection (3)
above, the Court may order, but is not limited to, any of the following
dispositions:
(1)
Placing the minor with guardian, who shall be appointed by the Court;
(2)
Maintaining the minor in foster care for a further, specified period
of time;
(3)
Maintaining the minor in foster care on a permanent or long-term
basis; or
(4)
Recommending that parental rights be terminated and that the minor
be placed for adoption.
(d)
Periodic Review by Court - If the Court determines to continue
placement of the minor pursuant to subsection 4(a), (b), or (c) above,
the Court shall, every six months after the initial permanency planning
hearing, continue periodic reviews of the placement in order to determine:
(1)
The appropriateness of the placement;
(2)
The appropriateness of, and extent of compliance with, the permanency
plan for the minor; and
(3)
The adequacy of services provided to the minor and his or her parent(s)
under the permanency plan.
(e)
18th Month Review - By the end of the eighteenth (18th) month
of foster care, the Tribal Social Services Department shall make a
decision regarding the long-term placement of the minor; provided,
however, that it is within the Court's discretion to extend the foster
placement of a minor if the Court determines that substantial progress
has been made by the parent(s), and that it is in the best interest
of the minor.
(f)
Need for Subsequent Hearings - Subsequent permanency planning
hearings need not be held if:
(1)
The minor has been adopted;
(2)
The minor is a ward of a guardian; or
(3)
The minor is in long-term foster placement that is intended to be
permanent in nature.
(g)
Notice to Parties of Change in Minor's Placement - The removal
of the minor from his or her parent(s) home, change of the minor's
placement, or a determination affecting a parent(s), guardian, or
custodian's legal right to custody of a minor shall require notice
of such change to the parties, and the Court shall conduct a review
hearing upon the written request of any party.
(h)
Recommendation by Caseworker - The Tribal Social Services Department
shall have the duty to recommend long-term options for a minor within
the jurisdiction of the Court. The caseworker shall submit a report
at least five (5) days before the periodic review hearing conducted
before the Tribal Court. This report shall discuss compliance with
the placement preferences of the Tribe, the long term prospects of
reuniting the minor with his or her family, the placement options
available to the minor, and the caseworker's recommendations concerning
which placement would serve the best interests of the minor.
(i)
All Court records and records of the Tribal Social Services Department
regarding placement of a minor within the jurisdiction of the Court
under this Code are confidential, and shall be made available only
to the following:
(1)
A party and his or her legal representative;
(2)
The minor's parent(s), guardian, or custodian;
(3)
Such other persons who the Court determines have a valid reason
to review those records; and
(4)
The Court, if such records are not already part of the Court records.
(j)
Continuing Jurisdiction of Court - For dispositional purposes,
jurisdiction over a minor under this Code shall continue until he
or she reaches eighteen (18) years of age, unless such jurisdiction
is terminated prior thereto by order of the Court.
SILETZ INDIAN CHILD WELFARE CODE, PART IV
TERMINATION OF PARENTAL RIGHTS SECTION
§8.422
PURPOSE:
The purpose
of this section is to provide a means by which the Court may order termination
of a parent-child relationship in both voluntary and non-voluntary situations.
It is further the purpose of this chapter to provide meaningful and
clear standards to be applied to termination proceedings and to ensure
competent, stable, and on-going care of the minor by prompt and final
adjudication.
§8.423 POLICY:
Non-voluntary
termination of parental rights over a child is a serious matter and
an action that the Court may take only after all remedies have been
exhausted in an attempt to maintain the stability of the family or to
maintain a minimum level of positive contact between the child and his
or her family, including extended family.
§8.424 EFFECT ON MINOR'S OTHER RIGHTS:
An adjudication
of termination of parental rights shall have no effect on any of the
following:
(a)
The minor's enrollment status as a member of the Tribe;
(b)
The minor's degree of blood quantum;
(c)
The minor's rights of inheritance from his or her natural parents;
or
(d)
The minor's relationship with his or her extended family members,
where appropriate.
§8.425 STANDARD FOR TERMINATION:
The Court
may terminate a parent's rights when the Court finds, beyond a reasonable
doubt, that:
(a)
The parent is unfit;
(b)
The conduct or condition of the parent is such as to render him or
her unable to care for that child and that such conduct or condition
is unlikely to change within one (1) year; and
(c)
Continued contact between the minor and the parent on any basis is
not in the minor's best interests.
§8.426 FACTORS TO BE CONSIDERED BY THE COURT:
In making
determinations pursuant to subsection (D), above, the Court shall consider,
but is not limited to, any of the following factors:
(a)
The parent has abandoned the minor and made no effort to contact the
minor for more than a two (2) year time period;
(b)
The parent's emotional illness, mental illness, or mental deficiency
is of such duration or nature as to render the parent unable to care
for the ongoing physical, mental and emotional needs of the minor
within one (1) year from the date of determination of illness;
(c)
The parent has abused or neglected the minor, as those terms are defined
in this Code;
(d)
The parent has imbibed excessive amounts of intoxicating liquors or
illegal substances or drugs over a period of one (1) or more years;
(e)
The parent has been imprisoned for a period of one (1) or more years;
(f)
A competent court has rendered an adjudication of a plea of guilty
by the parent to the charge that the parent, either intentionally,
recklessly, willfully, or wantonly caused the death or injury of a
minor's sibling;
(g)
The parent has failed to provide a home or reasonable substitute physical
care and maintenance for the minor where custody of the minor has
been lodged with others;
(h)
The parent has failed to maintain regular visitation or other contact
with the child as designated in a plan to reunite the child with the
parent, and has failed to attempt to rectify any problems that may
have inhibited the parent from doing so;
(i)
The parent has failed to maintain consistent contact or communication
with the child over a period of two (2) or more years, and that failure
is not the result of interference or intimidation by any other individual,
whether that individual is employed by the Tribe in any way, or is
a physical custodian of the child at any time during the pendency
of any child custody proceedings pursuant to this Code;
(j)
Attempts by the Tribal Social Services Department to aid the parent
in rehabilitation efforts have been unsuccessful, and the parent has
not made any substantial progress toward rehabilitation on his or
her own; or
(k)
The minor was left alone under such circumstances that the identity
of the parent is unknown and cannot be ascertained, despite diligent
searching, and the parent has not come forward to claim the minor
within six (6) months after the date on which the minor was found.
§8.427 BEST INTEREST OF THE MINOR:
In considering
termination of parental rights, the Court shall give primary consideration
to the best interests of the minor as shown by the minor's physical,
mental, and emotional condition and needs.
§8.428 INITIATION BY PETITION:
Any proceedings
concerning the non-voluntary termination of parental rights under this
Code shall be initiated only when the presenting officer has filed a
petition seeking termination of the parent-child relationship, pursuant
to subsection (G) of this section. The petition shall include:
(a)
The name, age, residence, and tribal status of the minor who is the
subject of the petition;
(b)
The names, residences and tribal status, if known, of the minor's
parent(s), guardian or custodian;
(c)
A citation to the specific section of this Code which gives the Court
jurisdiction over the termination proceeding;
(d)
A brief and concise statement of the facts and circumstances supporting
the request for termination of the parent-child relationship.
§8.429 HEARING:
(a)
A hearing shall be held within thirty (30) days after the presenting
officer has filed a petition to terminate a parent-child relationship.
The Court shall conduct the hearing for the purpose of determining
whether parental rights should be terminated based upon a finding,
supported by evidence beyond a reasonable doubt, of the following:
(1)
The parent abandoned the minor;
(2)
The parent willfully and repeatedly caused physical injuries to
the minor, which caused or created a substantial risk of death,
disfigurement or impairment of bodily functions;
(3)
The parent will fully and repeatedly committed acts of sexual abuse
on the minor, or permitted another individual to commit the same;
or
(4)
The parent has voluntarily agreed to terminate his or her parental
rights.
(b)
The hearing shall be conducted in accordance with the Rules of Court.
The Court shall schedule and give notice of a hearing pertaining to
the termination of parental rights to the following individuals at
least ten (10) days before the hearing:
(1)
The minor;
(2)
The minor's parent(s);
(3)
The minor's guardian or custodian, if any;
(4)
Any other persons who the Court deems appropriate.
(c)
The Court shall issue a summons, which shall include a petition for
termination of parental rights, attached to the notice of the hearing,
and deliver a copy thereof to all necessary of those individuals listed
in this subsection.
§8.430 REPORTS PERTAINING TO THE TERMINATION OF PARENTAL RIGHTS:
(a)
At least ten (10) days before any hearing pertaining to the termination
of parental rights, the tribal caseworker, in consultation with the
Tribal Youth Board, shall prepare and present a written report to
the Court. The report shall contain:
(1)
The findings, opinions and recommendations, if any, of all professionals
consulted regarding the termination of the parent-child relationship;
(2)
The social history both of the parent and the minor; and
(3)
Any and all other facts that are necessary and pertinent to the
proper adjudication of parental rights.
The
Tribal Youth Board shall serve a copy of the report upon the parent
whose parental rights are being terminated, and upon his or her attorney,
if any, at least ten (10) days before the termination of parental
rights hearing.
(b)
A parent who is the subject of a hearing under this section of this
Code has the right to file a written report of his or her own with
the Court. The Court shall provide the presenting officer with a copy
of the report at the time that the parent files it.
(c)
The Court may, in its discretion, order other individuals or agencies
to submit written reports to the Court concerning the termination
of the parent-child relationship. At least ten (10) days before the
termination of parental rights' hearing, the Court shall serve upon
the parent who is the subject of the parental termination hearing,
and upon his or her attorney, copies of any additional reports filed
with the Court pursuant to this subsection.
(d)
The Court may, in its discretion, subpoena experts who have knowledge
of the parent-child relationship which is the subject of the hearing,
including physicians, psychiatrists, mental health professionals,
social workers, and any individual from the community who is cognizant
of the traditional child-rearing methods and attitudes of the Tribe.
The Court may subpoena the presence of any other witnesses or persons
who the Court determines have a direct interest in the case. If the
proposed witness(es) are not subject to tribal subpoena, the Court
may request that they appear and testify, or seek aid from the nearest
court with jurisdiction over the witness(Es) in obtaining a subpoena.
§8.431 COURT APPOINTED ADVOCATE FOR MINOR:
In any
proceeding for non-voluntary termination of parental rights, or any
rehearing or appeal thereon, the Court may, within its discretion, appoint
an advocate to represent the minor as his or her counsel or guardian
ad litem, if the court determines that the interests of the child will
not be represented by any parties to the proceeding. The Court may appoint
a guardian ad litem for the child in voluntary termination of parental
rights proceedings.
§8.432 JUDGMENT ORDERING DISPOSITION: If the Court terminates
an individual's parental rights, the Court shall issue a judgment detailing
its decision and the reasons for the decision and ordering the disposition
of the minor as follows:
(a)
Place the minor with an extended family member; or
(b)
Place the minor in a foster care or shelter care facility which has
been approved by the Tribe; and, in either case,
(c)
Place the minor in long-term placement and proceed to the Adoption
Section of this Code.
§8.433 FINALITY OF ORDER:
A judgment
of non-voluntary termination of parental rights is a final order for
purposes of appeal.
§8.434 VOLUNTARY TERMINATION OF PARENTAL RIGHTS:
The Court
may terminate parental rights for any parent who desires to voluntarily
terminate his or her parental rights. In exercising jurisdiction over
a voluntary termination proceeding, the Court shall require that:
(a)
No voluntary termination of parental rights shall be accepted by the
Court prior to ten (10) days after the birth of the child to whom
the parent seeks to sever his or her parental rights;
(b)
No voluntary termination shall occur until a written report has been
submitted to the Court by a recognized social services agency of the
Tribe, indicating that social services and counseling have been offered
to the parent, that the consequences of the parent's actions have
been fully explained to, and are understood by the parent, and that
such action is in the best interest of the minor; or
(c)
If a parent has waived his or her right to appear at the termination
hearing, such waiver is executed, in writing, before a judge of the
Court, and that the waiver is knowing and voluntary.
(d)
In any proceeding for voluntary termination of parental rights, if
the Court has reasonable doubt concerning the emotional state of mind
of the parent, or of the parent's ability to fully understand the
consequences of his or her decision, the Court shall place the child
with the Tribal Social Services Department for a period not to exceed
thirty (30) days, in order to allow he parent to consider his or her
decision. The Court shall further order legal and psychological counseling
for the parent in order to assure his or her understanding of the
consequences of his or her decision. A report indicating that counseling
has been completed shall be made to the Court. Immediately after the
end of the thirty (30) days period, the Court shall conduct a hearing
and:
(1)
Return custody of the child to the parent;
(2)
Process the petition for voluntary termination of parental rights;
or
(3)
Extend the period for no more than thirty (30) additional days to
allow further counseling At the expiration of the further counseling,
the Court shall resume the hearing and proceed as permitted by this
Code.
(e)
Any minor freed for placement through a parent's voluntary termination
of his or her parental rights shall be placed according to the provisions
of this Code.
SILETZ INDIAN CHILD WELFARE CODE, PART V
LONG-TERM PLACEMENT PROVISIONS
§8.435
GUARDIANSHIP:
(a)
Policy - It shall be the policy of the Siletz Tribe to prefer
guardianship as a long-term placement option for tribal children over
either adoption or long-term foster care.
(b)
Authority to Appoint - The Tribal Court is empowered to appoint
a guardian, either of the minor's person or of his or her estate or
both, subject to the requirements of other provisions of this Code.
Appointment of a guardian ad litem shall not be subject to
the requirements of this subsection.
(c)
Initiation of Hearing - A guardianship hearing under this Section
shall be initiated by:
(1)
A petition of any person on behalf of the minor; or
(2)
A petition of the minor if he or she is twelve (12) years of age
or older; or
(3)
A motion by the Court.
(d)
Contents of Petition - The petition for guardianship shall
include:
(1)
The name, age, residence, and Indian status of the minor;
(2)
The name, age, residence, and Indian status of the prospective guardian;
(3)
The name, age, residence and Indian status of the minor's parent(s);
(4)
A statement of the specific facts which form the basis for the petition
and the Court's jurisdiction; and
(5)
A description of any previous Court hearings concerning the minor.
(e)
Notice to Parties - The Court shall give at least ten (10)
days notice of the date, time, place, and purpose of the guardianship
hearing to the person currently having custody and are of the minor,
to the minor's parent(s) if parental rights have not been terminated,
to the tribal caseworker, to the petitioner and to such other persons
as the Court deems appropriate.
(f)
Caseworker Report - The tribal caseworker shall prepare and
present a written report to the Court at least three (3) days before
the guardianship hearing. The report shall contain:
(1)
Information concerning the qualifications of the proposed guardian;
and
(2)
The tribal caseworker's recommendations concerning the proposed
guardianship.
(g)
Standard - In appointing a guardian, the Court shall be guided
by the best interests of the minor; provided, however, that if the
minor is twelve (12) years of age or older, the Court shall consider
the youth's preference in appointing a guardian.
§8.436 ADOPTION:
(a)
Policy - It is the policy of the Siletz Tribe that its children
should be adopted only as a matter of last resort, and that alternative
long-term placements that maintain the connection between the minor
and his or her parent(s) and family, such as guardianship and long-term
foster care, should be considered first. A decree of adoption shall
not terminate the legal relationship between the minor and the minor's
natural family members, except by order of the Court.
(b)
Who May Be Adopted - The following persons may be adopted pursuant
to this Code:
(1)
A minor who is subject to the jurisdiction of the Siletz Tribal
Court;
(2)
An adult, both of whose parents are dead, and who is subject to
the jurisdiction of the Siletz Tribal Court.
(c)
Who May File Petition - The following persons may file a petition
to adopt a Siletz minor:
(1)
Any adult;
(2)
An individual who is legally separated from his or her spouse may
file a petition to adopt without the consent of the other spouse;
(3)
Married persons who maintain a home together must both petition
for adoption; provided, however, that if one of the spouses is the
natural parent of the child to be adopted, the natural parent shall
not be party to the petition.
(d)
Preference in Adoption - Preference in adoption shall be given
in the following order:
(1)
Any adult member of the minor's extended family shall be given in
the following order:
(2)
Any adult member of the minor's extended family who is either a
member of, or eligible for membership in, any other federally-recognized
Indian tribe, or any married couple, one of whom meets the requirements
of this subsection;
(3)
Any adult member of the minor's extended family who is either a
member of, or eligible for membership in, any other Indian tribe
or cultural group, regardless of whether that group has status as
a federally-recognized Indian tribe, or any couple, one of whom
meets the requirements of this subsection;
(4)
If this order of preference cannot be met, for good cause shown,
then placement will be permitted with any person who has knowledge
of anyone with a desire to foster the minor's tribal affiliation
and special needs;
(5)
A non-Indian married couple; or
(6)
A non-Indian individual.
(e)
Initiation of Proceedings by Petition - Any person(s) wishing to adopt
shall initiate the proceedings by filing a verified petition, under
oath, with the Tribal Court. The petition shall contain:
(1)
The full name, residence, place of birth, date of birth and sex
of the minor to be adopted, with documentary proof of the date and
place of the birth of the minor to be adopted;
(2)
Documentary proof of the minor's membership status in the Tribe,
if such proof exists;
(3)
The full name, date and place of birth, occupation of the adoptive
parent(s), statement of relationship to the minor, documentary proof
of the adoptive parent(s)' Indian heritage or tribal membership;
(4)
Proof of consent to the adoption;
(5)
The names and addresses, if known, of all persons whose consent
to the adoption is required, but who have not consented, and the
facts and circumstances which excuse any lack of consent;
(6)
The names and addresses of all persons who have or claim a right
of custody to or visitation with the child, or who are required
to make payments of money for the support of the child; and
(7)
The reasons the petitioner desires to adopt the minor.
(f)
When Adoptions Permitted - Adoptions of Siletz children will
be permitted only when one or more of the following have occurred:
(1)
The minor's parent(s)' rights have been terminated, either voluntarily
or involuntarily;
(2)
The minor has been abandoned by his or her parents; or
(3)
The parent has been declared mentally incompetent by a competent
tribunal.
(g)
Written Consent Required - Written consent to an adoption is
required of the following pe