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Poarch Band of Creek Indians Tribal Code

[Includes amendments and additions dated through 2004]

§10 JUVENILE

Initials         &nbsp
Date 12-27-88
[Initials on original document.]

§10-1-1 JUVENILE COURT

A. Jurisdiction

There is hereby created the Poarch Creek Indian Juvenile Court which shall be presided over by the Tribal Court Judge in addition to any other duties which said Tribal Court Judge may have set out by Tribal Ordinance. The Juvenile Judge is hereby charged with the responsibility of hearing all juvenile cases and disposing of said cases in a manner which is in the best interest of the juveniles that come before the Court.

The Juvenile Court shall have jurisdiction over the following proceedings:

1) All proceedings in which a child is alleged to be a Juvenile Delinquent or a Child In Need of Care.

2) Proceedings for the adoption of a child.

3) Proceedings for the termination of parental rights.

4) Proceedings to determine custody of or appoint a legal guardian for a child, except where the Tribal Court has already taken jurisdiction for purposes of divorce and child custody.

B. Objective

The goal of the Juvenile Court shall be rehabilitation and guidance, not punishment. The Juvenile Court, in determining the appropriate disposition of each juvenile case, shall endeavor to select the alternative which is the least restrictive upon the juvenile, consistent with the goal of rehabilitation. The Court shall consider the recommendations of the Juvenile Department or its equivalent, the tribe's Public Safety social services and health departments and other interested social welfare agencies in determining the appropriate disposition of each case.

C. Authority

In disposition of a case involving a juvenile within its jurisdiction, the Juvenile Court shall have authority to make orders and arrangements for the care, custody and control of the juvenile, and may take such other actions and impose such restrictions and conditions on the juvenile's activities as the Juvenile Court may determine advisable and appropriate in the interest of the juvenile and the interests of the Tribe.

D. Removal from Reservation

The Juvenile Court may order or permit removal of a juvenile from the territorial jurisdiction of the Tribe by the person, facility, school, clinic or institution in whose custody the juvenile is, committed, on condition that such custodian will return the juvenile on order of the Court. Commitment of a juvenile to a person, facility, school, clinic or institution located off the Reservation should be made only in extreme cases where no other appropriate placement is available on the Reservation.

E. Continuing Jurisdiction

The Juvenile Court may retain continuing jurisdiction over a juvenile within its jurisdiction for as long as the Juvenile Court determines necessary for the rehabilitation of the juvenile, up to the juvenile's eighteenth (18th) birthday, and during such time of continuing jurisdiction the Court may conduct one or more review hearings and may enter such orders as it determines appropriate for the care, custody, control and rehabilitation of the juvenile.

F. Support Obligation

Any person who is obligated by law to support a juvenile within the jurisdiction of the Juvenile Court may be ordered by the Juvenile Court to pay support for such juvenile in an amount determined by the Court to be fair and reasonable. Such orders may be enforced in the same manner as other judgments for money, or by contempt power of the Court.

G. Civil Immunity of Social Worker in Judicial Capacity

No social worker shall be liable in any civil proceeding for any utterances or acts made or done by him in his judicial capacity.

 

§10-1-2 JUVENILE COURT PROCEEDINGS

A. Nature of Proceedings

All juvenile cases shall be regarded as civil matters and no criminal record shall exist for any juvenile who comes before the Juvenile Court as such.

B. Privacy

All hearings shall be private and closed to the general public except for the parties, their lawyers and any other person whose presence is required upon a finding of the same by the Court.

C. Persons Present in Juvenile Hearings

The court has broad discretion in determining who should or should not be present during juvenile hearings including the juvenile charged.

D. Court Record

A tape recording shall be made of all juvenile hearings and preserved throughout the period that said juvenile is subject to the orders of the Court.

E. Sealing of Records

The Poarch Creek Indian Juvenile Court shall vacate its order and findings, and order the sealing of the legal, social and law enforcement records of the Juvenile Court, the Tribal Public Safety Department and Tribal Social Services Department, and also any agency involved, if it finds that:

1. two (2) years have elapsed since the final discharge of the person from legal custody or supervision, or two (2) years after the entry of any other court order not involving custody or supervision; and

2. he has not been convicted of a felony or adjudicated delinquent, or in need of care, prior to the initiation of the sealing, and no proceeding is pending seeking such conviction or adjudication.

Reasonable notice of this action shall be given to all agencies, departments, and institutions involved, including Tribal Public Safety Department and Tribal Social Services Department.

Upon entry of the order, the proceedings in the case shall be treated as if they never occurred, and all index references shall be deleted, and the Juvenile Court and public safety officers and departments and institutions shall reply, and the person himself may reply, to any inquiry, that no record exists with respect to such person. Copies of the order shall be sent to each agency, department, institution, and official named within the records.

Inspection of the files and records included in the order may thereafter be permitted by the Juvenile Court only upon motion by the person who is the subject of such records, and only to those persons named in the action; provided, however, that the Juvenile Court, in its discretion, may by special order, in an individual case, permit inspection by, or release of, information in the records to any clinic, hospital, or agency which has the person under care or treatment, or to individuals or agencies engaged in fact-finding or research.

Any adjudication of delinquency or in need of care, subsequent to sealing, shall have the effect of nullifying the sealing order.

A person who has been the subject of a petition filed under Section 10-1-2 shall be notified of his rights under Section 10-1-4, at the time of his final discharge.

F. Use in other Proceedings

The adjudication, disposition, and evidence presented before the Juvenile Court shall be inadmissible as evidence against the juvenile in any proceeding in another court, including the Tribal Court.

G. Rules of Procedure

The procedures in the Juvenile Court shall be governed by the rules of procedure for the Tribal Court which are not in conflict with this Code.

 

§10-1-3 COOPERATION

The Juvenile Court is authorized to cooperate fully with any federal, state, tribal, public or private agency in order to participate in any diversion, rehabilitation or training program(s) and to receive grants-in-aid to carry out the purposes of this Code.

 

§10-1-4 DEFINITIONS

The following definitions shall apply in implementing the Juvenile Code:

1) Abandonment - leaving a child by a parent, custodian or guardian without support, control, supervision, or other necessities of life for such period of time in which a reasonable person would assume that said child has been in fact abandoned.

2) Adjudicatory Hearing - A proceeding in the Juvenile Court to determine whether a child has committed a specific "delinquent act" or is a "child in need of care" as set forth in a petition.

3) Adult - any person eighteen (18) years of age or older who is either: a member of the Tribe; is eligible for membership in the Tribe and is the biological child of a member of the Tribe or is the Indian child (natural or adopted) of a member of the Tribe.

4) Alcohol or Substance Abuse Facility - An appropriately licensed and supervised emergency shelter or facility for the care and treatment of juveniles with regard to alcohol and/or substance abuse problems.

5) Child in need of care - A child in need of care includes a child or juvenile who:

a) has been abandoned by its parent, guardian or custodian; or

b) who is being or has been subjected to cruelty or physical, sexual or emotional abuse, by or through the willful act or omissions of its parent, guardian or custodian; or

c) lacks the parental care and control necessary for its well being because of the failure or inability of its parent, guardian or custodian to provide such care and control; or

d) has not been provided with adequate food, clothing, shelter, medical care, education, or any care or necessities essential to its well being by its parent, guardian or custodian; or

e) a child whose parent, guardian or custodian are unable to discharge their responsibilities to and for the child because of incarceration, emotional, physical or mental incapacity or immaturity; or

f) is without the special care made necessary by his emotional, physical or mental condition because his parent, guardian or custodian neglects or refuses to provide it; or

g) whose parent, guardian or custodians occupation, behavior, condition, environment or ,associations are such as to be injurious or dangerous to said child; or

h) whose parent, guardian or custodian has made arrangements for his placement in a manner detrimental to the welfare of the child or in violation of law; or

i) who, being subject to compulsory school attendance, is habitually truant from school; or

j) who habitually disobeys the reasonable and lawful demands of his parent, guardian or custodian, and is ungovernable and beyond their control; or

k) who comes within the provisions of delinquency but whose conduct results in whole or in part from parental neglect; or

l) who has committed an offense not classified as criminal; or

m) who has been sexually abused or sexually molested; or

n) who has been emotionally abused or neglected or has suffered or is likely to certainly suffer a physical injury, inflicted upon him by other than accidental means, which causes or creates a substantial risk of death, disfigurement, or impairment of bodily functions.

6. Compulsory School Attendance - All juveniles between the ages of seven (7) and sixteen (16) years of age are required to attend school daily while in session unless excused from attendance for that day by school authorities. The school attended may be a public school, an alternative school, an alternative course of instruction, a private or parochial school so long as the source of instruction is accredited by either the State or Tribe.

7. Consent Decree - A court order which suspends a "juvenile delinquent" or "child in need of care" proceeding prior to adjudication and continues the child and/or the family under supervision under terms and conditions negotiated with the social worker and agreed to by all parties.

8. Court or Juvenile Court - The Poarch Creek Indian Juvenile Court as established by 10-1-1 of the Poarch Band of Creek Indian Tribal Code, 1986.

9. Custodian - A person, other than a parent or legal guardian, to whom legal custody of the child as been given by court order, or who is acting in place of the parents.

10. Delinquent Act - An act committed by a juvenile, which if committed by an adult, would be a criminal offense under the Tribal Criminal Code.

11. Detention - Exercising authority over a child by physically placing them in any juvenile facility designated by the court and restricting the child's movement in that facility.

12. Dispositional Hearing - A proceeding in the Juvenile Court to determine how to resolve a case after it has been determined at the adjudicatory hearing that the child has committed a specific "delinquent act" or who is a "child in need of care".

13. Domicile - location or place where a person intends to remain permanently or indefinitely, and to which whenever absent he intends to return to.

14. Emergency Foster Home - Placement with a family whose home has been studied and approved by the court to accept emergency placements of children at any hour of the day or night.

15. Foster Hose - Placement with a family whose home has been studied and approved by the court to accept placement of children.

16. Guardian - A person assigned by a court of law, other than a parent, having the duty and authority to provide care and control of a child.

17. Guardian ad Litem - Any person appointed by the Court to protect the interest of a child in any proceeding to which he may be a party.

18. Informal Adjustment - Diversion process in which the child is diverted away from the judicial system through a probation agreement. The child does not appear in Court and is not labeled a "juvenile delinquent".

19. Intake Officer - The Tribal Court Clerk and any other person designated by the Tribal Court Judge whose primary role is to review petitions involving juvenile delinquent and child in need of care charges and if in order, allow the complainant to swear before said person and sign petition.

20. Interim Care - The status of temporary physical control of a child who is a child in need of care.

21. Juvenile - Any person under the age of eighteen (18) years and is either: a member of the Tribe; is eligible for membership in the Tribe and is the biological child of a member of the Tribe or is the Indian child (natural or adopted) of a member of the Tribe.

22. Juvenile Facility - Any juvenile facility designated by the Court (other than a school) that detains juveniles or restricts their movement, including secure juvenile detention facilities, alcohol or substance abuse treatment facilities, foster homes, and emergency foster homes.

23. Legal Custody - A legal status created by court order which vests in a custodian or guardian the right to have physical custody of a child and to determine where and with whom he shall live, and the right and duty to protect, train and discipline said child, to provide said child with food, shelter, medical care and any other powers and rights as determined necessary by the Juvenile Court. An individual granted legal custody shall exercise the rights and responsibilities personally, unless otherwise authorized by the Juvenile Court.

24. Parent - A natural or adoptive parent, but does not include persons whose parental rights have been terminated, nor does it include the unwed father whose paternity has not been acknowledged or established.

25. Probation - A legal status created by court order, following an adjudication involving the commission of a juvenile offense by the child, whereby the child is permitted to remain in his or her home under prescribed conditions and under supervision by an officer designated by the Court subject to return to court for further proceedings in the event of the failure of the child to comply with any of the conditions prescribed.

26. Protective Supervision - A legal status created by court order under which a juvenile offender is permitted to remain in his home or is placed with a relative or other suitable individual and supervision and assistance is provided by the Court, a health or social services agency or some other agency designated by the Court.

27. Residual parental rights and responsibilities - Those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship, including, but not necessarily limited to the right of visitation, consent to adoption, the right to determine religious affiliation and the responsibility to support.

28. Restitution - Financial reimbursement by the child to the victim, and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to persons, which are a direct and proximate result of the delinquent act. Restitution does not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses.

29. Runaway - A juvenile sixteen (16) years of age or younger who has left the home of his parent, guardian or custodian without permission with the apparent intention of not returning.

30. Secure Juvenile Detention Facility - A facility which:

a) contains locked cells or rooms which are separated by sight and sound from any adult inmates;

b) restricts the movement of those placed in the locked cells or rooms, and

c)complies with the other requirements of the Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. 5601 et. seq.

31. Tribal Council - The Tribal Council of the Poarch Band of Creek Indians.

32. Tribal Court - The adult court for the Poarch Band of Creek Indians.

33. Transfer to Tribal Court - Transferring a child from the jurisdiction of the Juvenile Court to the jurisdiction of the Tribal Court according to section 10-1-8 of this Code which results in the termination of the Juvenile Court's jurisdiction over that offense.

 

§10-1-5 RIGHTS OF PARTIES IN JUVENILE PROCEEDINGS

A. Privilege Against Self-Incrimination

A child alleged to be a "juvenile delinquent" or a "child in need of care" shall from the time of being taken into custody be accorded and advised of the privilege against self-incrimination.

B. Admissibility of Evidence

In a proceeding on a petition alleging that a child is a "juvenile delinquent" or a "child in need of care":

1. an out-of-court statement that would be inadmissible in a criminal matter in, tribal court shall not be received in evidence;

2. evidence illegally seized or obtained shall not be received in evidence to establish the allegations of a petition;

3. unless advised by counsel, the statements of a child made while in custody to a social worker, including statements made during a preliminary inquiry, informal adjustment or predispositional study, shall not be used against the child in determining the truth of allegations of the petition;

4. a valid out-of-court admission or confession by the child is insufficient to support a finding that the child committed the acts alleged in the petition unless it is corroborated by other evidence.

C. Fingerprinting and Photographs

A juvenile in custody shall not be fingerprinted nor photographed for criminal identification purposes except by order of the Tribal Juvenile Court. If an order of the Tribal Juvenile Court is given, the fingerprints or photographs shall be used only as specified by the Court.

D. Line Ups

The Juvenile Court may authorize a line up that includes a juvenile in custody as an alleged juvenile delinquent for identification purposes only if:

1. The juvenile and his parent, guardian or custodian give their written consent and

2. The juvenile is represented by counsel, spokesperson or advocate at the time of the line up.

E. Explanation of Rights

At his first appearance before the Juvenile Court, and at each subsequent appearance before the Court, the child alleged to be a "juvenile delinquent" or a "child in need of care" and the child's parent, guardian or custodian shall be informed by the Court of the following:

1. the allegations against him;

2. the right to an advocate or attorney at his own expense;

3. the right to testify or remain silent and that any statement made by him may be used against him;

4. the right to cross-examine witnesses;

5. the right to subpoena witnesses on his own behalf and to introduce evidence on his own behalf; and

6. the right to appeal to the Tribal Supreme Court; and

7. the possible consequences if the allegations in the petition are found to be true.


§10-1-6 JUVENILE DELINQUENT - TAKING INTO CUSTODY

A. Taking a Child Into Custody

A child may be taken into custody by a law enforcement officer when:

1. the child commits a delinquent act in the presence of the officer;

2. there is probable cause to believe that a child has committed a delinquent act, and there is reasonable cause for believing that before a court order can be obtained, the child may:

a. flee the jurisdiction or hide to avoid arrest; or

b. destroy or hide evidence of the commission of the offense; or

c. injure another person or property belonging to another person.
3. an appropriate order has been issued by the court authorizing the taking of a particular child.

B. Provisions of Rights

At the time the child is taken into custody as an alleged "juvenile delinquent", the arresting officer shall give the following warning:

1. you have the right to remain silent;

2. anything you say can be used against you in court;

3. you have the right to the presence of your parent, guardian, custodian and/or counsel during questioning;

4. you have the right to an advocate or attorney at your own expense.

C. Release or Delivery from Custody

A law enforcement officer taking a child into custody shall give the warnings listed in section 10-1-6(B) to any child he takes into custody prior to questioning and then shall do one of the following:

1. release the child to the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate; or

2. release the child to a relative or other responsible adult tribal member if the child's parent, guardian or custodian consents to the release; or

3. bring the child to the social worker, or deliver the child to a place of detention or foster care designated by the Juvenile Court, or to a medical facility if the child is believed to be suffering from a serious physical condition or illness which requires either prompt treatment or prompt diagnosis for evidentiary purposes, and promptly give oral or written notice thereof, together with a statement of the reason for taking the child into custody, to a parent, guardian or other custodian. Written notice, together with a statement of the reason for taking the child into custody shall also be given to the Juvenile Court promptly.

D. Criteria for Detaining Children

The social worker or other designated agent at the juvenile facility (as designated by the court) shall, immediately upon delivery of the child for custody, review the need for continued custody and shall release the child to his parent, guardian or custodian in order to appear at the hearing on a date to be set by the court, unless:

1. there is reasonable cause to believe that the child will commit a serious act causing damage to person or property of others or to himself; or

2. he has no parent, guardian, custodian, or other person able to provide supervision and care for him; or

3. there is reasonable cause to believe the child will run away so that he will be unavailable or further proceedings.

E. Notification of Family

Immediately upon taking a child into custody every reasonable effort shall be made to notify the child's parent, guardian or custodian. Such reasonable efforts shall include telephone and personal contacts at the home or place of employment or other locations where the person is known to frequent. If notification cannot be provided to the child's parent, guardian, or custodian, every reasonable effort shall be made to notify a responsible adult family member or other person as requested by the child.

F. Criteria for Selecting Juvenile Facility

If the social worker or juvenile official at the juvenile facility (as designated by the court) determines that there is a need for continued custody of the child in accordance with section 10-1-6(D) of this Code, then the following criteria shall be used to determine the appropriate juvenile facility for the child:

1. A child may be detained in a Secure Juvenile Detention Facility (as defined in section 10-1-4 of this Code) as designated by the Court only if one or more of the following conditions are met:

a. the child is a fugitive from another jurisdiction wanted for a felony offense; or

b. the child is charged with murder, sexual assault, or a crime of violence with a deadly weapon or which has resulted in a serious bodily injury; or

c. the child is uncontrollable and has committed a serious physical assault on the arresting officer or on other security personnel while resisting arrest or detention; or

d. the child is charged with committing one of the following acts which would be an offense if the child were an adult: vehicular homicide, abduction, rape, arson, burglary or robbery; or

e. the child is already detained or on conditioned release for another "delinquent act"; or

f. the child has a demonstrable recent record of willful failures to appear at juvenile court proceedings; or

g. the child has made a serious escape attempt; or

h. the child requests in writing that he be given protection by being confined in a secure confinement area and there is a present and immediate threat of serious physical injury to the child.

2. A child may be housed in a Juvenile Facility (as defined in section 10-1-4 of this Code) only if one of the following conditions exist:

a. one of the conditions described in section 10-1-6(F1) above exists; or

b. the child is unwilling to return home or to the home of an extended family member; or

c. the child's parent, guardian, custodian, or an extended family member is unavailable, unwilling, or unable to permit the child to return to his home; or

d. there is an evident and immediate physical danger to the child in returning home, and all extended family members are unavailable, unwilling, or unable to accept responsibility for temporary care and custody of the child.

3. A child may be referred to an Alcohol or Substance Abuse Facility (as defined in section 10-1-4 of this Code) if it is determined that there is a need for continued custody of the child in accordance with section 10-1-6(D) of this Code and:

(1) the child has been picked-up or detained for a "delinquent act" relating to alcohol or substance abuse,

(2) there is space available in an alcohol or substance abuse facility designated by the Court; and

(3) the child is not determined to be a danger to himself or others.

 

§10-1-7 JUVENILE DELINQUENT - DETENTION HEARING

A. Requirement of Detention Hearing

Where a child who has been taken into custody is not released, a detention hearing shall be held within seventy-two (72) hours, excluding weekends and holidays.

B. Purpose of Detention Hearing

The purpose of the detention hearing is to determine whether continued detention of a child is necessary pending further proceedings.

C. Notice of Detention Hearing

Notice of the detention hearing shall be given to the child and the child's parent, guardian or custodian and to any other person that the court determines to be proper and necessary to the proceeding as soon as the time for the detention hearing has been set. The notice shall contain:

1. the name of the Court;

2. the name, date of birth and address of the child who is the subject of the detention hearing;

3. a brief statement of the "delinquent act(s)" the child is alleged to have committed; and

4. the date, time and place of the detention hearing.

D. Detention Hearing Procedure

Detention hearings shall be conducted by the Juvenile Court separate from other proceedings. At the commencement of the detention hearing, the Court shall notify the child and the child's parent, guardian or custodian of their rights under section 10-1-5 of this Code. The general public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, and other persons requested by the parties shall be admitted.

E. Finding at Detention Hearing

The Court shall issue a written finding stating the reasons for release or continued detention of the child. If the Court determines that there is a need for continued detention, the Court shall specify in writing where the child is to be placed until the adjudicatory hearing.

 

§10-1-8 TRANSFER TO TRIBAL COURT

A. Transfer Petition

An officer of the court or the Juvenile Court itself, may, within five (5) days of the date of a delinquency petition has been filed, but before a hearing on the petition on its merits, file a petition requesting the Juvenile Court to transfer the child to the jurisdiction of the Tribal Court if the child is fifteen (15) years of age or older and is alleged to have committed an act which would have been considered a serious crime if committed by an adult.

B. Transfer Hearing

The Juvenile Court shall conduct a hearing to determine whether jurisdiction of the child should be transferred to Tribal Court. The transfer hearing shall be held within ten (10) days of receipt of the petition by the Court. Written notice of the time, place and purpose of the hearing is to be given to the child and the child's parent, guardian, or custodian and to any other person the Court determines to be proper and necessary at least three (3) days before the hearing. At the commencement of the hearing, the Court shall notify the child and the child's parent, guardian or custodian of their rights under section 10-1-5 of this Code.

C. Deciding Factors in Transfer Hearing

The following factors shall be considered when determining whether to transfer jurisdiction of the child to Tribal Court:

1. the nature and seriousness of the offense with which the child is charged;

2. the nature and condition of the child as evidenced by his age, mental, emotional and physical condition;

3. the nature and extent of the child's prior delinquency record; and

4. the nature of past treatment efforts and the nature of the child's responses to these efforts.

Transfer of a child fifteen (15) years of age or older for criminal prosecution terminates the jurisdiction of the Juvenile Court over the child with respect to any subsequent delinquent acts.

D. Standard of Proof in Transfer Hearing

The Juvenile Court may transfer jurisdiction of the child to Tribal Court only if the Court finds clear and convincing evidence that both of the following circumstances exist:

1. there are no reasonable prospects for rehabilitating the child through resources available to the Juvenile Court; and

2. the act(s) alleged committed by the child evidence a pattern of conduct which constitutes a substantial danger to the public.

E. Pre-Hearing Report in Transfer Proceedings

At least three (3) days prior to the transfer hearing, the petitioner shall prepare a pre-hearing report for the Juvenile Court and make copies of that report available to the child and the child's advocate, parent, guardian or custodian. The pre-hearing report shall address the issues described in sections 10-1-8(C) and 10-1-8(D).

F. Written Transfer Order

A child may be transferred to Tribal Court only if the Juvenile Court issues a written order after the conclusion of the transfer hearing which contains specific findings and reasons for the transfer in accordance with sections 10-1-8(C) and 10-1-8(D) above. This written order terminates the jurisdiction of the Juvenile Court over the child with respect to the juvenile acts) alleged in the petition. No child shall be prosecuted in the Tribal Court for a criminal offense unless the case has been transferred to Tribal Court as provided in this section.


§10-1-9 JUVENILE DELINQUENT - INITIATION OF PROCEEDINGS

A. Investigation by the Social Worker

The social worker shall make an investigation within twenty-four (24) hours of the detention hearing or the release of the child to his parent, guardian or custodian, to determine whether the interests of the child and the public require that further action be taken. Upon the basis of his investigation, the social worker may:

1. recommend that no further action be taken: or

2. suggest to the child and the child's parent, guardian or custodian that they appear for an informal adjustment conference under sections 10-1-9(B) and 10-1-9(C) of this Code; or

3. request the Juvenile Court to begin transfer to adult tribal court proceedings under section 10-1-8 of this Code; or

4. file a petition under section 10-1-9(D) of this Code.

B. Informal Adjustment

During the course of the preliminary investigation to determine what further action shall be taken, the social worker shall confer with the child and the child's parent, guardian or custodian for the purpose of effecting adjustments or agreements that make the filing of the petition unnecessary. The social worker shall consider the following factors in determining whether to proceed informally or to file a petition:

1. nature and seriousness of the offense;

2. previous number of contacts with the police, social worker or the Court;

3. age and maturity of the child;

4. attitude of the child regarding the offense; and

5. willingness of the child to participate in a voluntary program.

C. Informal Conference

After conducting a preliminary investigation, the social worker shall hold an informal conference with the child and the child's parent, guardian or custodian to discuss alternative courses of action in the particular case.

The social worker shall inform the child, the child's parent, guardian or custodian of their basic rights under section 10-1-5 of this Code. Statements made by the child at the informal conference shall not be used against the child in determining the truth of the allegations in the petition.

At the informal conference, upon the basis of the information obtained during the preliminary investigation, the social worker may enter into a written agreement with the child and the child's parent, guardian or custodian specifying particular conditions to be observed during an informal adjustment period, not to exceed six (6) months. The child and the child's parent, guardian or custodian shall enter into the agreement with the knowledge that consent is voluntary and they may terminate the adjustment process at any time and petition the Court for a hearing.

The child shall be permitted to be represented by counsel at his own expense at the informal conference.

If the child does not desire to participate voluntarily in a diversion program, the social worker shall file a petition pursuant to section 10-1-9(D) of this Code.

Upon the successful completion of the informal adjustment agreement, the case shall be closed and no further action taken in the case.

If the child fails to successfully complete the terms of his informal adjustment agreement, the social worker may recommend that a petition be filed in the case under section 10-1-9(D) of this Code.

D. Filing and Content of Petition

Proceedings against a juvenile for the commission of a delinquent act shall be instituted by the filing of a petition by any person who has knowledge of the facts alleged. The petition shall be entitled, "In the Matter of          &nbsp, a child" and shall contain the following information:

1. the name, date of birth, and address, if known, of the child;

2. the name and address, if known, of the child's parent, guardian or custodian;

3. a citation to the criminal statute or other law or ordinance which the child is alleged to have violated;

4. a plain and concise statement of facts upon which the allegations are based, including the date, time and location at which the alleged acts occurred; and

5. whether the child is in custody and, if so, the place of detention and time he was taken into custody.

All juvenile delinquent petitions shall be sworn to before an intake officer before filing with the Court.

Intake officers consist of the Tribal Court Clerk and any other person designated by the Tribal Court Judge.

E. Issuance of Summons

After a juvenile delinquent petition has been filed, the Court shall direct the issuance of summons to:

1. the child;

2. the child's parent, guardian or custodian;

3. the child's counsel/advocate;

4. any other person the court determines to be proper and necessary,

requiring them to appear personally before the Juvenile Court, at the time set, to answer the contents of the petition. A copy of the petition shall be attached to the summons.

If it appears to the Juvenile Court that the child needs to be placed in detention under Section 10-1-8(F), the summons shall also have attached an Emergency Pick-Up Order to take the child into custody immediately and take him to the place of detention designated by the Juvenile Court.

F. Service of the Summons

The summons shall be served upon the parties at least three (3) days prior to the hearing. The summons shall be delivered personally by a law enforcement official. If the summons cannot be delivered personally, the court may deliver it by registered mail. If the summons cannot be delivered by registered mail, it may be by publication. A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

 

§10-1-10 Child In Need Of Care - Consent Decree

A. Availability of Consent Decree

At any time after the filing of a juvenile delinquent petition, and before the entry of a judgment, the Court may, on motion of the social worker or that of counsel for the child, suspend the proceedings and continue the child under supervision in his own home under terms and conditions negotiated with the social worker and agreed to by all the parties affected. The Court's order continuing the child under supervision under this section shall be known as a "consent decree".

If the child objects to a consent decree, the court shall proceed to findings, adjudication and disposition of the case.

B. Duration of Consent Decree

A consent decree shall remain in force for six (6) months unless the child is discharged sooner by the social worker. Prior to the expiration of the six (6) months period, and upon the application of the social worker or any other agency supervising the child under a consent decree, the Court may extend the decree for an additional six (6) months in the absence of objection to extension by the child. If the child objects to the extension the Court shall hold a hearing and make a determination on the issue of extension.

C. Failure to Fulfill Terms and Conditions

If, either prior to a discharge by the social worker or expiration of the consent decree, the child allegedly fails to fulfill the terms of the decree, the social worker may file a petition to revoke the consent decree. Proceedings on the petition shall be conducted according to section 10-1-13 of this Code. If the child is found to have violated the terms of the consent decree, the Court may:

1. extend the period of the consent decree; or

2. make any other disposition which would have been appropriate in the original proceeding.

D. New Juvenile Delinquent Complaint

If, either prior to discharge or expiration of the consent decree, a new juvenile delinquent petition is filed against the child, the social worker may:

1. file a petition to revoke the consent decree in accordance with section 10-1-10(C) of this Code; or

2. file a petition on the basis of the new complaint which has been filed against the child.

E. Dismissal of Petition

A child who is discharged by or who completes a period under supervision without reinstatement of the original juvenile delinquent petition shall not again be proceeded against in any court for the same act alleged in the petition or an act based upon the same conduct, and the original petition shall be dismissed with prejudice. Nothing in this subsection precludes a civil suit against the child for damages arising from this conduct.

 

§10-1-11 JUVENILE DELINQUENT - ADJUDICATION PROCEEDINGS

A. Purpose and Conduct of Adjudicatory Hearing

Hearings on juvenile delinquent petitions shall be conducted by the Juvenile Court separate from other proceedings. The Court shall conduct the adjudicatory hearing for the sole purpose of determining whether the child has committed a "delinquent act". At the adjudicatory hearing, the child and the child's parent, guardian or custodian shall have the applicable rights listed in section 10-1-5 of this Code. The general public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, and other persons requested by the parties shall be admitted.

B. Notice of Hearing

Notice of the adjudicatory hearing shall be given to the child and the child's parent, guardian or custodian, the child's counsel or advocate and any other person the court determines to be proper and necessary for the hearing at least three (3) days prior to the hearing in accordance with sections 10-1-9(C) of this Code.

C. Denial of Allegations

If the allegations in the "juvenile delinquent" petition are denied, the Juvenile Court shall set a date to hear evidence on the petition.

D. Admission of Allegations

If the child admits the allegations of the petition, the Juvenile Court shall consider a disposition only after a finding that:

1. the child fully understands his right under section 10-1-5 of this Code, and fully understands the consequences of his admission;

2. the child voluntarily, intelligently, and knowingly admits all facts necessary to constitute a basis for Juvenile Court action; and

3. the child has not, in his statements on the allegations, set forth facts, which if found to be true, would be a defense to the allegations.

E. "Juvenile Delinquent" Finding After Admission

If the Court finds that the child has validly admitted the allegations contained in the petition, the Court shall make and record its finding and schedule a disposition hearing in accordance with section 10-1-13 of this Code. Additionally, the Court shall specify in writing whether the child is to be continued in an out of the home placement pending the disposition hearing.

F. "Juvenile Delinquent" Finding After Hearing

If the Court finds on the basis of proof clear and convincing evidence that the allegations contained in the petition are true, the Court shall make and record its finding and schedule a disposition hearing in accordance with section 10-1-13 of this Code. Additionally, the Court shall specify in writing whether the child is to be continued in an out of home placement pending the dispositional hearing.

G. Dismissal of Petition

If the Court finds that the allegations on the "juvenile delinquent" petition have not established clear and convincing evidence it shall dismiss the petition and order the child released from any detention imposed in connection with the proceeding.

 

§10-1-12 JUVENILE DELINQUENT - PREDISPOSITION STUDIES: REPORTS AND EXAMINATIONS

A. Predisposition Study and Report

The Court shall direct the social worker to prepare a written predisposition study and report for the Court concerning the child, the child's family, the child's environment, and any other matter relevant to the need for treatment or other appropriate disposition of the case when:

1. the child has been adjudicated as a "juvenile delinquent"; or

2. a notice of intent to admit the allegations of the petition has been filed.

B. Contents of Predisposition Study and Report

The report shall contain a specific plan for the child, aimed at resolving the problems presented in the petition. The report shall contain a detailed explanation showing the necessity for the proposed plan of disposition and the benefits to the child under the proposed plan. Preference shall be given to the dispositional alternatives which are least restrictive of the child's freedom and are consistent with the interests of the community.

C. Medical Assessment and Treatment for Alcohol or Substance Abuse

The Juvenile Court may order a medical assessment of a child detained for a "delinquent act" relating to or involving alcohol or substance abuse to determine the mental or physical state of the child so that appropriate steps can be taken to protect the child's health and well-being.

D. Pre-Adjudication Examination of Emotionally Disturbed or Developmentally Disabled Child

Where there are indications that the child may be emotionally disturbed or developmentally disabled, the Court, on a motion by the social worker or that of counsel for the child, may order the child to be tested by a qualified psychiatrist or psychologist prior to a hearing on the merits of the petition. An examination made prior to the hearing, or as a part of the predisposition study and report, shall be conducted on an outpatient basis unless the Court finds that placement in a hospital or other appropriate facility is necessary.

E. Pre-Disposition Examinations

The Court may order an examination of a child adjudicated as a "juvenile delinquent" by a physician, psychiatrist or psychologist. The Court may also, following the adjudicatory hearing, order the examination by a physician, psychiatrist or psychologist of a parent or custodian who gives his consent and whose ability to care for or supervise a child is an issue before the Court at the dispositional hearing.

F. Transfer for Diagnosis

The Court may order that a child adjudicated as a "juvenile delinquent" be transferred to an appropriate facility for a period of not more than sixty (60) days for purposes of diagnosis with direction that the Court be given a written report at the end of that period indicating the disposition which appears most suitable.

G. Submission of Reports

Evaluations, assessments, dispositional reports and other material to be considered by the Court in a juvenile hearing shall be submitted to the Court and to the parties no later than three (3) days before the scheduled hearing date. A declaration including reasons why a report has not been completed shall be filed with the Court no later than three (3) days before the scheduled hearing date if the report will not be submitted before the deadline. The Court may dismiss a petition if the necessary reports, evaluations or other material have not been submitted in a timely manner.

 

§10-1-13 JUVENILE DELINQUENT, DISPOSITION PROCEEDINGS

A. Purpose and Conduct of Disposition Hearing

Disposition hearings shall be conducted by the Juvenile Court separate from other proceedings. The Court shall conduct the disposition hearing to determine how to resolve a case after it has been determined at the adjudicatory hearing that the child has committed a specific "delinquent act". The Court shall make and record its dispositional order in accordance with sections 10-1-13(D) and 10-1-14 of this Code. At the disposition hearing, the child and the child's parent, guardian or custodian shall have the applicable rights listed in section 10-1-5 of this Code. Furthermore, the juvenile shall be advised of his right to appeal, the right to have an attorney or advocate at his own expense for appeal purposes and that he shall have a right to a transcript of the tribal court proceeding at his own expense for appeal purposes. The general public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, and other persons requested by the parties shall be admitted.

B. Notice of Disposition

Hearing Notice of the disposition hearing shall be given to the child and the child's parent, guardian or custodian, the child's counsel or advocate and any other person the court determines proper and necessary to the hearing at least three (3) days prior to the hearing in accordance with sections 10-1-9(C)of this Code.

C. Evidence and Reports

In the disposition hearing, the Court may consider all relevant and material evidence determining the questions presented, including oral and written reports, and may rely on such evidence to the extent of its probative value even though not otherwise competent. The Court shall consider any predisposition report, physician's report or social study it may have ordered and afford the child, the child's parent, guardian or custodian and the child's counsel or advocate an opportunity to raise arguments against the factual contents and conclusions of the report(s). The Court shall also consider the alternative predisposition report or recommendations prepared by the child or the child's counsel or advocate, if any.

D. Disposition Alternatives

If a child is found by the Court to be a "juvenile delinquent", the Court may make and record any of the following orders of disposition for the child's supervision, care and rehabilitation:

1. permit the child to remain with his parent, guardian or custodian, subject to such conditions and limitations as the Court may prescribe;

2. place the child in the legal custody of a relative or other suitable person, subject to such conditions and limitations as the Court may prescribe;

3. order the child to pay restitution (as defined in section 10-1-4 of this Code);

4. place the child under protective supervision (as defined in section 10-1-4 of this Code) under such conditions and limitations as the Court may prescribe;

5. place the child on probation (as defined in section 10-1-4 of this Code) under such conditions and limitations as the Court may prescribe; or

6. place the child in a juvenile facility designated by the Court, including alcohol or substance abuse emergency shelter, emergency foster home, foster home or secure juvenile detention facility (see section 10-1-4 of this Code for individual definitions).

 

§10-1-14 JUVENILE DELINQUENT REVIEW, MODIFICATION, REVOCATION, EXTENSION OR TERMINATION OF DISPOSITIONAL ORDERS

A. Review of Disposition Order

Dispositional orders are to be reviewed at the Court's discretion at least once every six (6) months.

B. Modification, Revocation, or Extension of Dispositional Order

The Court may hold a hearing to modify, revoke, or extend a disposition order at any time upon the motion of:

1. the child;

2. the child's parent, guardian or custodian;

3. the child's counsel or advocate;

4. the social worker;

5. the institution, agency or person vested with the legal custody of the child or responsibility for protective supervision.

C. Hearing to Modify, Revoke or Extend Disposition Order

A hearing to modify, revoke or extend the disposition order shall be conducted according to sections 10-1-13(A), 10-1-13(B), 10-1-13(C) and 10-1-13(D) of this Code.

 

§10-1-15 CHILD IN NEED OF CARE - INTERIM CARE

A. Limitations on Taking Into Custody

No child who is the subject of a proceeding alleging that the "child is in need of care" (as defined in section 10-1-4 of this Code) may be taken into custody unless such taking into custody is in accordance with the provision for "interim care" (as defined in section 10-1-4 of this Code) set forth in sections 10-1-15 of this Code.

B. Interim Care Without Court Order

A child may be taken into interim care by a law enforcement officer without order of the court only when:

1. the officer has reasonable grounds to believe that the child is in circumstances which constitute a substantial danger to the child's physical safety; or

2. a social worker or designated agent of a juvenile facility legally charged with the supervision of the child has notified a law enforcement agency that the child has run away from a placement ordered by the court under section 10-1-19 of this Code.

C. Procedure for Interim Care

A law enforcement official taking a child into custody under the interim care provisions of this Code shall immediately:

1. inform the child of the reasons for the custody;

2. contact the social worker who shall designate placement of the child in an appropriate juvenile facility as designated by the Court; and

3. take the child to the placement specified by the social worker, or in the event of the unavailability of a social worker, to an appropriate juvenile facility as designated by the Court.

D. Notification of Family

The law enforcement officer or the social worker shall immediately notify the child's parent, guardian or custodian of the child's whereabouts, the reasons for taking the child into custody, and the name and telephone number of the person who can be contacted for further information. Efforts to notify the child's parent, guardian or custodian shall include telephone and personal contacts at the home or place of employment or other locations where the person is known to frequent with regularity. If notification cannot be provided to the child's parent, guardian or custodian, the notice shall be given to a member of the extended family of the parent, guardian or custodian and to the child's extended family or other person as requested by the child.

E. Time Limitation on Interim Care

Under no circumstances shall any child taken into interim care under section 10-1-15(B) of this Code be held involuntarily for more than seventy-two (72) hours.

F. Restriction on Transportation

A child taken into interim care shall not be placed or transported in any police or other vehicle which at the same time contains an adult under arrest, unless this subsection cannot be complied with due to circumstances in which any delay in transporting the child to an appropriate juvenile facility would be likely to result in substantial danger to the child's physical safety. Said circumstances shall be described in writing to the supervisor of the driver of the vehicle within forty-eight (48) hours after any transportation of a child with an adult under arrest.

G. Voluntary Return Home

If a child has been taken into interim care under the provisions of section 10-1-15(B) of this Code and it is determined after initial investigation feasible to allow child to be returned home, said child shall be returned home as soon as possible if child and child's parent, guardian or custodian agree.

H. Refusal to Return Home

If the child refuses to return home and if no other living arrangements can be made, a social worker shall offer the child shelter in an appropriate juvenile facility as designated by the Court which is located as close as possible to the residence of the child's parent, guardian or custodian.

 

§10-1-16 CHILD IN NEED OF CARE - DETENTION HEARING

A. Requirement of Detention Hearing

Where a child who has been taken into custody is not released, a detention hearing shall be held within seventy-two (72) hours, excluding weekends and holidays.

B. Purpose of Detention Hearing

The purpose of the detention hearing is to determine whether continued detention of a child is necessary pending further proceedings.

C. Notice of Detention Hearing

Notice of the detention hearing shall be given to the child and the child's parent, guardian or custodian and to any other person that the court determines to be proper and necessary to the proceeding as soon as the time for the detention hearing has been set. The notice shall contain:

1. the name of the Court;

2. the name, date of birth and address of the child who is the subject of the detention hearing;

3. a brief statement of the allegations; and

4. the date, time and place of the detention hearing.

D. Detention Hearing Procedure

Detention hearings shall be conducted by the Juvenile Court separate from other proceedings. At the commencement of the detention hearing, the Court shall notify the child and the child's parent, guardian or custodian of their rights under section 10-1-5 of this Code. The general public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, and other persons requested by the parties shall be admitted.

E. Finding at Detention Hearing

The Court shall issue a written finding stating the reasons for release or continued detention of the child. If the Court determines that there is a need for continued detention, the Court shall specify in writing where the child is to be placed until the adjudicatory hearing.

 

§10-1-17 CHILD IN NEED OF CARE - INITIATION OF PROCEEDINGS

A. Filing and Content of Petition

Any person having knowledge of facts pertinent to a child in need of care may file a complaint with the Tribal Social Services Department or the Tribal Public Safety Department.

The social worker may initiate an investigation to determine whether there is cause to believe the child is in need of care as alleged. If the social worker determines there is cause to believe a child is in need of care, the social worker shall file a petition with the Tribal Juvenile Court. The petition shall be entitled, "In the matter Of, __________, a child" and shall contain the following information:

1. the name, date of birth, and residence of the child;

2. the names and residences of the child's parent, guardian or custodian;

3. a citation to the specific statutory provision of this Code which gives the Court jurisdiction of the proceedings.

4. a brief, concise statement of facts upon which the allegation that the child is in need of care is based.

5. if the child is in detention or shelter care, the place of detention or shelter care and the time he was taken into custody.

All child in need of care petitions shall be sworn to before an intake officer before filing with the Court. Intake officers consist of the Tribal Court Clerk and any other person designated by the Tribal Court Judge.

B. Issuance of Summons

After a child in need of care petition has been filed, the Court shall direct the issuance of summons to:

1. the child;

2. the child's parent, guardian or custodian;

3. the child's counsel/advocate;

4. any other person the court determines to be proper and necessary,

requiring them to appear personally before the Juvenile Court, at the time set, to answer the contents of the petition. A copy of the petition shall be attached to the summons.

If it appears to the Juvenile Court that the child needs to be placed in detention under Section 10-1-6(F), the summons shall also have attached an Emergency Pickup Order to take the child into custody immediately and take him to the place of detention designated by the Juvenile Court.

The summons shall advise the parties of their applicable rights under section 10-1-5 of this Code.

C. Service of the Summons

The summons shall be served upon the parties at least three (3) days prior to the hearing. The summons shall be delivered personally by a law enforcement official. If the summons cannot be delivered personally, the court may deliver it by registered mail. If the summons cannot be delivered by registered mail, it may be by publication. A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

 

§10-1-18 CHILD IN NEED OF CARE - CONSENT DECREE

A. Availability of Consent Decree

At any time after the filing of a petition alleging that a child is in need of care, and before the entry of a judgment, the Court may, on motion of the social worker or that of the child, his parents, guardian or custodian, or their counsel or advocate, suspend the proceedings and continue the child under supervision under terms and conditions negotiated with the social worker and agreed to by all the parties affected. The Court's order continuing the child under supervision under this section shall be known as a "consent decree".

B. Objection to Consent Decree

If the child or his parents, guardian or custodian object to a consent decree, the Court shall proceed to findings, adjudication and disposition of the case.

C. Court Determination of Appropriateness

If the child or his parents, guardian or custodian do not object, the Court shall proceed to determine whether it is appropriate to enter a consent decree and may, in its discretion, enter the consent decree.

D. Duration of Consent Decree

A consent decree shall remain in force for six (6) months unless the child is discharged sooner by the social worker. Prior to the expiration of the six (6) months period, and upon the application of the social worker supervising the child under a consent decree, the Court may extend the decree for an additional six (6) months in the absence of objection to extension by the child or his parents, guardian or custodian. If the child or his parents, guardian or custodian object to the extension the Court shall hold a hearing and make a determination on the issue of extension.

E. Failure to Fulfill Terms and Conditions

If, either prior to discharge by the social worker or expiration of the consent decree, the child fails to fulfill the expressed terms and conditions of the consent decree, the petition under which the child was continued under supervision may be reinstated in the discretion of the social worker. In this event, the proceeding on the petition shall be continued to conclusion as if the consent decree had never been entered.

F. Dismissal of Petition

After a child is discharged by the social worker or completes a period under supervision without reinstatement of the petition alleging that the child is in need of care, the petition shall be dismissed with prejudice.

 

§10-1-19 CHILD IN NEED OF CARE - HEARINGS AND DISPOSITIONS

A. Conduct of Hearings

Child in need of care hearings shall be conducted by the Juvenile Court separate from other proceedings. At all hearings, the child and the child's family, guardian or custodian shall have the applicable rights listed in section 10-1-5 of this Code. The general public shall be excluded from the proceedings. Only the parties, their counsel or advocates, witnesses and other persons requested by the parties shall be admitted.

B. Notice of Hearings

Notice of all child in need of care hearings shall be given to the child, the child's parent, guardian or custodian, their counsel or advocate, and any other person the Court determines proper and necessary to the hearing at least three (3) days prior to the hearing in accordance with sections 10-1-9(C) of this Code.

C. Adjudicatory Hearing

The Court, after hearing all of the evidence bearing on the allegations contained in the petition, shall make and record its findings as to whether the child is a child in need of care. If the Court finds on the basis of clear and convincing evidence that the child is a child in need of care, the Court may proceed immediately or at a postponed hearing to make disposition of the case. If the Court does not find that the child is a child in need of care it shall dismiss the petition.

D. Predisposition Studies, Reports and Examinations

The Court may order any appropriate predisposition study, report or examination under section 10-1-12 of this Code.

E. Disposition Hearing

In that part of the hearing on dispositional issues all relevant and material evidence helpful in determining the questions presented, including oral and written reports, may be received by the Court and may be relied upon to the extent of its probative value even though not competent had it been offered during the part of the hearings on adjudicatory issues. The Court shall consider any predisposition report, physician's report or social study it may have ordered and afford the child, the child's parent, guardian or custodian and the child's counsel or advocate an opportunity to raise arguments against the factual contents and conclusions of the report(s). The Court shall also consider the alternative predisposition report or recommendations prepared by the child or the child's counsel or advocate, if any.

F. Disposition Alternatives

If the Court finds that a child is a child in need of care, the Court may make and record any of the following orders of disposition, giving due weight to the need to preserve the unity of the family whenever possible:

1. permit the child to remain with his parents, guardian or custodian subject to those conditions and limitations the Court may prescribe, including the protective supervision (as defined in section 10-1-4 of this Code) of the child by the Tribal Social Services Department);

2. referral of the child and his parents, guardian or custodian to an appropriate social services agency for participation in counseling or other treatment program as ordered by the Court;

3. transfer legal custody of the child to any of the following if the child is found to be a child in need of care due to a breakdown in the parent-child relationship:

    a. a relative or other individual who, after study by the social worker or other agency designated by the Court, is found by the Court to be qualified to receive and care for the child, or;

    b. an appropriate agency for placement of the child in an appropriate juvenile facility (as defined in section 10-1-4 of this Code) for a period not to exceed thirty (30) days with simultaneous directed referral of the child to a social services agency for counseling and/or other social assistance. A child may be placed under this subsection for an additional period not to exceed ninety (90) days after a hearing to determine the necessity of an additional placement.

G. Restriction on Dispositional Placements

The child shall not be confined in an institution established for the care and rehabilitation of "juvenile delinquents" unless a child who is found to be in need of care is also found to be a "juvenile delinquent". Under no circumstances shall a child who is found to be in need of care be committed or transferred to a penal institution or other facility used for the execution of sentences of persons convicted of crimes.

H. Modification, Revocation or Extension of Disposition Order

The Court may hold a hearing to modify, revoke or extend a disposition order at any time upon the motion of:

1. the child;

2. the child's parent, guardian, or custodian;

3. the child's counsel or advocate;

4. the social worker;

5. the institution, agency or person vested with legal custody of the child or responsibility for protective supervision.

 

§10-1-20 JUVENILE RECORDS

A. Juvenile Court Records

A record of all hearings under this Code shall be made and preserved. All juvenile court records shall be confidential and shall not be open to inspection to any but the following:

1. the child;

2. the child's parent, guardian or custodian;

3. the child's counsel or advocate;

4. the social worker or other designated personnel directly involved in the handling of the case;

5. any other person by order of the court, having a legitimate interest in the particular case or the work of the court.

B. Law Enforcement Records

Law enforcement records and files concerning a child shall be kept separate from the records and files of adults. All law enforcement records shall be confidential and shall not be open to inspection to any but the following:

1. the child;

2. the child's parent, guardian or custodian;

3. the child's counsel or advocate;

4. law enforcement personnel directly involved in the handling of the case;

5. the social worker or other designated personnel directly involved in the handling of the case;

6. any other person by order of the court, having a legitimate interest in the particular case or the work of the court.

C. Sealing of Records

When a child who has been the subject of any juvenile court proceeding reaches his eighteenth (18th) birthday, or the disposition order is terminated if the disposition order extends beyond his eighteenth (18th) birthday, the Court shall order the Tribal Court Clerk to seal the records of both the law enforcement records and the juvenile court records.

 

§10-1-21 JUVENILE APPEALS

A. Who Can Appeal

Any party to a juvenile court hearing may appeal a final juvenile court order, including all adjudication and/or disposition orders except that the Tribe cannot appeal an adjudication order.

B. Time Limit for Appeal

Any party seeking to appeal a final juvenile court order or disposition shall file a written notice of appeal with the Court within fourteen (14) days of the final order or disposition.

C. Record

For purposes of appeal, a record of proceedings shall be made available to the child, his parent, guardian or custodian, and the child's counsel. Costs of obtaining this record shall be paid by the party seeking the appeal.

D. Stay of Appeal

A decree or disposition of a hearing may be stayed by such appeal.

E. Conduct of Proceedings

All appeals shall be conducted in accordance with the Tribal Code and Tribal Court Rules of Procedure so long as those provisions are not in conflict with the provisions of this Juvenile Code.

 

§10-1-22 REPORTING OF CHILD ABUSE, NEGLECT OR MOLESTATION

A. Mandatory Reporting

Persons who have a reasonable cause to suspect that a child has been abused, neglected or molested shall report the abuse, neglect or molestation to the Tribal Public Safety Department or the Tribal Social Services Department.

Persons mandated to report are as follows: any physician, resident, intern, or clinic personnel engaged in the admission, examination, care, or treatment of children; nurse, osteopath, chiropractor, podiatrist, medical examiner, coroner, dentist, optometrist, or any other health or mental health professional (including any psychiatrist, marriage counselor, psychologist); school principal, school teacher, pupil personnel worker, or other school official; social worker, homemaker aide, outreach worker; child day care center worker or other child care staff including foster parents, residential care or institutional personnel; law enforcement official; judge, attorney, court intake officer, tribal court clerk, or other judicial system official.

When a report is made to the Tribal Public Safety Department, said Department, shall inform the Tribal Social Services Department of the report.

B. Permissive Reporting

In addition to the persons listed above mandated to report child abuse, neglect or molestation, any other person who suspects abuse, neglect or molestation may make such a report and remain anonymous.

C. Contents of Report

The child abuse, neglect or molestation report shall provide the following information:

1. the name and address of the child;

2. the names and addresses of the child's parents or others responsible for his care;

3. the child's date of birth, sex and race;

4. family composition;

5. previous abuse, neglect or molestation of the child or his siblings, if known;

6. the nature and extent of the child's abuse, neglect or molestation;

7. the name, age, and address of the person alleged to be responsible for the child's abuse, neglect or molestation, if known;

8. the source of the report;

9. the name and address of the person or institution making the report, and where the reporting source can be reached;

10. the actions taken by the reporting source, including:

a. the taking of color photographs and/or x-rays;

b. removing the child from his home;

c. notifying the coroner or medical examiner;

d. any court actions.

D. Immunity from Liability for Reporting Child Abuse, Neglect or Molestation

Any person or agency reporting, in good faith, known or suspected instances of abuse, neglect or molestation shall be immune from liability, civil or criminal.

E. Privileged Communication

The privileged quality of communication between husband and wife and all professional persons and their clients or patient shall be eliminated for purposes of making a report, cooperating with the local Child Protective Services Unit and/or Tribal Child Protection Team, or giving evidence in court proceedings, with the exception of an attorney representing a client who is alleged to have abused, neglected or molested a child.

F. Penalty for Failure to Make Required Report

Any person mandated to report a case of known or suspected abuse, neglect or molestation who knowingly fails to do so or willfully prevents someone else from doing so shall be guilty of a misdemeanor.

G. Confidentiality of Record and Reports

All reports of known or suspected child abuse, neglect or molestation, and all records generated as a result of such reports, which could serve to identify a subject of the report (such as name and address) shall be confidential for any purposes other than:

1. to prevent or to discover abuse, neglect or molestation of children through the information contained in said reports; or

2. for investigation of child abuse, neglect or molestation by the Tribal Public Safety Department or other law enforcement agency; or

3. for use by a grand jury upon its determination that access to such reports and records is necessary in the conduct of its official business; or

4. for use by a court where it finds that such information is necessary for the determination of an issue before the court; or

5. for use by any person engaged in bona fide research or audit purposes provided, however, that no information identifying the subject of the report shall be made available to the researcher; or

6. for use by any person authorized by a court to act as a representative for an abused or neglected child who is the subject of a report; or

7. for use by a physician who has before him a child whom he reasonably suspects may be abused, neglected or molested; or

8. for use by an attorney, advocate or guardian ad litem in representing or defending a child or its parents or guardians in a court proceeding related to abuse, neglect or molestation of said child.

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