CHAPTER
30: CHILD WELFARE CODE
CONTENTS:
Subchapter
I: Preamble
Subchapter II: Jurisdiction
Subchapter III: Definitions
Subchapter IV: Organization and Function of the Tribal
Court
Subchapter V: Termination of Parental Rights
Subchapter VI: Placement Preferences
Subchapter VII: Adoption
Subchapter VIII: Power of Attorney and Guardianship
Subchapter IX: Emancipation
Subchapter X: Additional Matters
Subchapter XI: Records
Subchapter XII: Committees and Workers
Subchapter XIII: Foster Care Standards
Subchapter XIV: Group Home Standards
Subchapter XV: Child Care Licensing
HISTORY
NOTE:
Current
Ordinance:
Resolution
2003-85, adopted June 17, 2003, adopts Tribal Code Chapter 30: Child
Welfare Code and rescinds all earlier Child Welfare Codes.
Resolution
94-118, adopted September 20, 1994, adopts Tribal Code Chapter 30: Child
Welfare Code and rescinds all earlier Child Welfare Codes.
Reenacted
as part of the Tribal Code July 5, 1995, effective immediately.
Prior
Ordinances:
The
Tribe's first child welfare ordinance, the Juvenile and Children's Code
of the Sault Ste. Marie Tribe of Chippewa Indians, a/k/a Tribal Child
Welfare Code, was adopted by Board motion on November 25, 1980.
Amendments:
Resolution
1-28-81G, adopted January 28, 1981, implemented the Code by establishing
the Sault Ste. Marie Tribal Children's Tribal Court to exercise jurisdiction
under the Tribal Child Welfare Code.
Resolution
1-26-83B, adopted January 26, 1983, authorized Chippewa County Department
of Social Services protective services workers to act on the Tribe's
behalf under the Tribal Child Welfare Code in emergency situations.
Resolution
7-27-83, adopted July 27, 1983, added an appeals section to the Code.
The
next Child Welfare Code was adopted by Board motion on September 20,
1984. Amendments:
Resolution
6-17-85A, adopted June 18, 1985, added the last sentence to '30.710(3).
Resolution
6-17-85B, adopted June 18, 1985, inserted the current language of '30.301(4)(h).
Tribal
Resolution 10-20-87G, adopted October 20, 1987, amended the last sentence
of '30.710(3).
Tribal
Resolution 10-20-87H, adopted October 20, 1987, set placement priorities
for adoptive placement [now included as Subchapter XII].
Resolution
2-07-89D, adopted February 7, 1989, set foster care placement priorities,
'30.1202.
Resolution
2-07-89E. adopted February 7, 1989, set adoption placement priorities,
'30.1202.
Resolution
1-23-90, adopted January 23, 1990, added Subchapter XI: Foster Care
Home Licensing.
Resolution
No. 93-32, adopted March 22, 1993, repealed Tribal Resolutions 2-07-89D
and 2-07-89E and amended ''30.1201 and 30.1202.
Cases:
In
the Interest of D.S.P., 166 Wis 2d 464. 480 NW2d 234 (Wis S Ct 1992).
Appeal of a TPR of a tribal member's parental rights (the Tribe was
not involved in the appeal). The TPR was affirmed; two tribal social
services workers were 'qualified expert witnesses' under the ICWA.
In
the Interest of D.S.P., 157 Wis 2d 106, 458 NW2d 823 (Wis Ct App
1990). Same case as above, in the Tribal Court of Appeals.
In
the Matter of Kraft, 148 Mich App 682, 384 NW2d 843 (1986). Appeal
of a TPR of a tribal member's parental rights (the Tribe was not involved
in the appeal). The TPR was upheld under ICWA standards; a tribal mental
health social worker is a 'qualified expert witness' under the ICWA.
In
the Matter of Morgan, 140 Mich App 594, 364 NW2d 754 (1985). Appeal
of the TPR of a tribal member's parental rights. The Tribe joined in
the appeal. The TPR was vacated for failure to follow the ICWA standards.
SUBCHAPTER
I: PREAMBLE
30.101 Preamble.
This Chapter
constitutes the law of the Sault Ste. Marie Tribe of Chippewa Indians
on matters related to the care, custody and control of minor members,
and children of members of the Sault Ste. Marie Tribe of Chippewa Indians.
It may be cited as the Sault Ste. Marie Tribal Child Welfare Code, Tribal
Code Chapter 30.
30.102 Purpose.
The Child
Welfare Code shall be liberally interpreted and construed to fulfill
the following expressed purposes:
(1) To
provide for the welfare, care and protection of the children and families
within the jurisdiction of the Sault Ste. Marie Tribe of Chippewa
Indians.
(2) To
preserve unity of the family, preferably by separating the child from
his parents only when necessary.
(3) To
take such actions that will best serve the spiritual, emotional, mental
and physical welfare of the child and best interests of the Tribe
to prevent the abuse, neglect and abandonment of children.
(4) To
provide a continuum of services for children and their families from
prevention to residential treatment, with emphasis whenever possible
on prevention, early intervention and community based alternatives.
(5) To
secure the rights of and ensure fairness to the children, parents,
guardians, custodians and other parties who come before the Tribal
Court under the provisions of this Chapter.
(6) To
provide procedures for intervention in those state court proceedings
regarding Indian children and for transfer of jurisdiction over Indian
children from state and other tribal courts to the Sault Ste. Marie
Tribal Court whenever deemed necessary and/or appropriate.
(7) To
recognize and acknowledge the Tribal customs and traditions of the
Sault Ste. Marie Tribe of Chippewa Indians regarding childrearing.
(8) To
preserve and strengthen the child's cultural and ethnic identity whenever
possible.
SUBCHAPTER II: JURISDICTION
30.201 Territorial Jurisdiction.
The Tribal
Court shall have exclusive and original jurisdiction of all child welfare
proceedings, elsewhere defined in this Chapter, when the subject child
is a resident of or domiciled upon the Tribal lands of the Sault Ste.
Marie Tribe of Chippewa Indians.
30.202 Jurisdiction - Personal.
The Tribal
Court shall have and exercise the jurisdiction asserted in the foregoing
sections of this subchapter over persons in the following manner:
(1) Within
the exclusive territorial jurisdiction of the Tribal Court, the Tribal
Court shall have jurisdiction over proceedings involving any Indian
child.
(2) Within
the concurrent jurisdiction of the Tribal Court, the Tribal Court
shall have jurisdiction over proceedings involving a child who is
a member of the Sault Ste. Marie Tribe of Chippewa Indians or who
is eligible for membership and is the biological child of a Tribal
member.
(3) The
Tribal Court shall also have limited personal jurisdiction of persons
involved in proceedings entertained by the Tribal Court.
(4) The
Tribal Court shall have ancillary jurisdiction over any parents or
guardian, whether Indian or not, of a child otherwise properly within
the jurisdiction of the Tribal Court, and over any other person entering
an appearance in the proceeding, whether directly or through counsel,
and over any person, properly served, whose compliance or cooperation
with the Tribal Court's order is essential to the exercise of the
jurisdiction of the Tribal Court over the proceeding of which the
Tribal Court otherwise has jurisdiction.
30.203 Concurrent Jurisdiction in Case of Conflict.
In all
child welfare proceedings arising within the concurrent jurisdiction
of the Tribal Court, the Tribal Court shall determine, by allegations
in the petition and by testimony, whether a prior action has been commenced
in a Court of the State of Michigan involving the same child. In the
event such a proceeding has been commenced in a state court, the Tribal
Court shall decline a petition to assert original jurisdiction, but
may direct the legal representative of the Tribe to seek transfer of
the case to the Tribal Court pursuant to the transfer provisions of
the Indian Child Welfare Act, 25 USC §1911. If no state court proceeding
has been commenced, the Tribal Court shall proceed as in cases within
its exclusive and original jurisdiction, provided personal jurisdiction
exists as set forth in §30.202.
30.204 Orders of Other Courts.
Orders
of other courts involving children over whom the Tribal Court could
take jurisdiction shall be recognized by the Tribal Court after the
Tribal Court has determined:
(1) That
the other court exercised proper subject matter and personal jurisdiction
over the parties, and
(2) Due
process was accorded to all interested parties participating in the
other court’s proceeding.
30.205 Tribal Interest.
Because
of the vital interest of the Tribe in its children and those children
who may become members of the Tribe, the statutes, regulations, public
policies, customs and common law of the Tribe shall control in any proceeding
involving a child who is a member of the Tribe.
30.206 Transferred Jurisdiction.
Child welfare
proceedings transferred to the Tribal Court pursuant to the Indian Child
Welfare Act, or the provisions of any other state or federal law shall
be deemed to have been commenced within the original and exclusive jurisdiction
of the Tribal Court, and further proceedings in the cause shall be identical
with proceedings originally filed in the Tribal Court.
30.207 Transfer to State Court or Other Tribal Court.
In any
proceedings before the Tribal Court, the Tribal Court may transfer the
proceedings to an appropriate state court or another tribal court where
the state or the other Indian tribe has a significant interest in the
child and the transfer would be in the best interest of the child.
30.208 Transfer from Other Tribal Courts.
The Tribal
Court may accept or decline, under the procedures set forth in this
Code, transfers of child welfare cases from other federal, state, or
tribal courts.
30.209 Jurisdiction - Subject Matter.
(1) The
Tribal Court shall have and exercise the jurisdiction asserted in
the foregoing sections of this Subchapter and over all proceedings
under this Chapter in which it is alleged that an Indian child is
alleged to be a child-in-need-of-care.
(2) The
Tribal Court shall also have jurisdiction of all proceedings, otherwise
within the jurisdiction of the Tribal Court, in which the following
relief is sought:
(a)
Termination of parental rights.
(b)
Adoption of an Indian child.
(c)
A determination of custody, other than in divorce, or appointment
of a custodian or guardian for a child.
(3) Jurisdiction
obtained by the Tribal Court over a child is retained until terminated
in any of the following situations:
(a)
the child becomes an adult; or
(b)
the case is transferred by the Tribal Court to another tribal court;
or
(c)
when the Tribal Court enters an order terminating jurisdiction.
(4) Tribal
Court jurisdiction may be retained until a child reaches the age of
19 years, or completes high school, with the consent of the child.
30.210 Jurisdiction - Severability - Saving Clause.
Each of
the numbered sections and subsections of this Chapter shall be deemed
to be discrete and severable. If any provision of this Chapter granting
or asserting jurisdiction, whether territorial, personal, subject matter
or otherwise, shall be held to violate federal law or the Constitution
and Bylaws of the Tribe, or the United States Constitution, by the final
decision of any federal tribal court, or if any such provisions shall
be held invalid by the Secretary of the Interior, the validity of each
and every other provision shall be unaffected thereby and all such other
provisions shall remain in full force and effect.
SUBCHAPTER III: DEFINITIONS
30.301 General Provisions.
For the
purpose of this Chapter, certain terms are defined in this subchapter.
When not inconsistent with the context, words used in the present tense
include the future, words in the singular number include the plural
number, words in the plural include words in the singular, and words
in the masculine gender include the feminine gender. The word "shall"
is always mandatory and not merely directory.
30.302 Abandoned.
"Abandoned"
means the failure of the parent to provide reasonable support and to
maintain regular contact with his or her child when such failure resulted
in destruction of the parental role with the child. Abandonment shall
be judged according to customary practices in the Indian community.
30.303 Adult.
"Adult"
means a person eighteen (18) years of age or older, or otherwise emancipated
by order of a court of competent jurisdiction.
30.304 Agency.
"Agency"
means the Anishnabek Community and Family Services Department of the
Sault Ste. Marie Tribe of Chippewa Indians or other appropriate agency
designated by the court.
30.305 Anishnabek Community and Family Services.
“Anishnabek
Community and Family Services” or ACFS provides social services
for the tribal members of the Sault Ste. Marie Tribe of Chippewa Indians.
30.306 Approved.
"Approved"
means having been reviewed and accepted by a designated inspecting authority
or an agency that has jurisdiction.
30.307 Caseworker.
"Caseworker"
means the protective services worker, social services worker, probation
officer, law enforcement personnel or any person who performs the duties
and responsibilities set forth in §30.1219.
30.308 Child.
"Child"
means a person who is less than eighteen (18) years old and who has
not been emancipated by order of a court of competent jurisdiction or
a child not born yet especially at the happening of some event.
30.309 Child Abuse.
“Child
abuse” means harm or threatened harm to a child’s health or
welfare by a parent, legal guardian, or any other person responsible
for the child’s health or welfare, or by a teacher or teacher’s
aide, that occurs through nonaccidental physical or mental injury; sexual
abuse; sexual exploitation; or maltreatment.
30.310 Child Born Out of Wedlock.
"Child
born out of wedlock" means a child conceived and born to a woman
who is unmarried from the conception to the birth of a child, or a child
determined by judicial notice or otherwise to have been conceived or
born during a marriage but who is not the issue of that marriage.
30.311 Child-in-need-of-care.
"Child-in-need-of-care"
means a child:
(1) Who
has no parent, guardian or custodian with legal authority able or
willing to care for him.
(2) Who
has not been provided with adequate food, shelter, clothing or medical
care or education necessary for his health and well-being.
(3) Whose
parent, guardian or custodian has knowingly, intentionally or negligently
subjected the child to abuse as defined in §30.309 or place the
child in a situation that endangers his life or health.
(4) Who
is without proper parental care and control or supervision because
of the disappearance or the prolonged absence of his parent, guardian
or custodian.
(5) Whose
parent, guardian or custodian is unable to provide for the child because
of incarceration or hospitalization for physical or mental condition.
(6) Who
has been sexually abused or exploited, negligently or intentionally
by parent, guardian or custodian.
(7) Who
has been placed in custodial care for the violation of the law as
a result of parental pressure, guidance or approval.
(8) Who
has been born and tested positive to alcohol, cocaine or any other
controlled substance.
(9) Whose
parents, guardian, or custodian’s alcohol and other drug abuse/addiction
interferes with a person’s ability to meet parental responsibility
and/or causes harm or threatened harm to the child.
(10)
Whose parent has been convicted of a crime of a nature that demonstrates
the parent’s unfitness to adequately parent the child.
(11)
Tribal Court jurisdiction may be established for a child whose parent’s
rights have been terminated involuntarily, or voluntarily at the point
of involuntary termination, for another child due to serious and chronic
neglect or physical or sexual abuse, and prior attempts to rehabilitate
the parents have been unsuccessful.
30.312 Child Passenger Restraint Device.
"Child
passenger restraint device" means a device which meets all the
requirements of Federal Motor Vehicle Safety Standard No. 213 entitled
"Child Seating Systems", 49 C.F.R. §71.213,(1984) as
amended, which performs satisfactorily in a dynamic test, and which
is appropriate for the size and physical condition of the child being
transported.
30.313 Child Protection Team.
The Child
Protection Team is a team established to involve and coordinate the
child protection services of various agencies.
30.314 Child Welfare Committee.
"Child
Welfare Committee" means a committee appointed by the Tribal Board
of Directors to protect the best interests of the children of the Tribe
and promote the stability and security of the Tribe as set forth by
this code.
30.315 Controlled Substance.
Substances
identified or defined as a “controlled substance” under the
provisions of P.A. 1978, No. 368 of the State of Michigan, as amended
to the date of the offense.
30.316 Counsel.
"Counsel"
means a person who has been recognized by the Sault Ste. Marie Chippewa
Tribal Court as qualified to represent individuals in proceedings before
the Tribal Court.
30.317 Court Appointed Special Advocate (CASA).
"Court
Appointed Special Advocate" means a person appointed by the Tribal
Court to represent the interests of a child who is before the Tribal
Court.
30.318 Custodian.
"Custodian"
means a person, other than a parent or guardian, to whom legal custody
of the child has been given.
30.319 Custody or Legal Custody.
"Custody
or legal custody" means the status created by order of the Tribal
Court or any other court of competent jurisdiction. Unless otherwise
specified by said court custody or legal custody vests the following
rights and responsibilities:
(1) The
right to have physical custody of the child.
(2) The
responsibility to provide the child with food, shelter, education
and ordinary medical care. In an emergency, a custodian shall have
the authority to consent to surgery or other extraordinary medical
care.
(3) Custody
does not include powers of a guardian as listed in Chapter 33 of the
Tribal Code.
30.320 Domicile.
"Domicile"
means a person's permanent home, legal home or main residence. The domicile
of a child is generally that of the custodial parent, guardian or custodian.
Domicile includes the intent to establish a permanent home or the place
where the parent, guardian or custodian considers to be his permanent
home.
30.321 Escalated Care.
Escalated
care is considered appropriate for adolescents who are unable to tolerate
the demands of family living and have emotional and/or behavioral problems
that can be handled in a therapeutic setting.
30.322 Extended Family.
"Extended
family" means a person who is the child's grandparent, aunt or
uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, or stepparent.
30.323 Father.
"Father"
means a man:
(1) Married
to the mother at any time from a child’s conception to the child’s
birth unless the child is determined to be a child born out of wedlock.
(2) Who
legally adopts the child.
(3) Whose
paternity is established in one of the following ways within time
limits, when applicable, set by the Tribal Court pursuant to this
Chapter.
(a)
The man and the mother of the child acknowledge that he is the child's
father in a writing executed and notarized and filed in the Tribal
Court or a court of competent jurisdiction.
(b)
The man and the mother file a joint written request for a correction
of the certificate of birth pertaining to the child that results
in issuance of a substituted certificate recording the birth identifying
the man as the child’s father.
(c)
The man acknowledges the child, without the acknowledgment of the
mother, with the approval of the Tribal Court or other court of
competent jurisdiction.
(d)
A man who by order of filiation or by judgment of paternity is determined
to be the father of the child.
30.324 Fictive Kin.
A “fictive
kin” is a person who is defined as a non-blood or non-marriage-related
adult who has a psychological/emotional bond with the child and is identified
as “family.”
30.325 Fire Alarm.
"Fire
alarm" means a device that is used to alert all persons in the
home of fire conditions. The device shall be heard in all parts of the
home that is used by children and care-giving staff.
30.326 Guardian.
"Guardian"
means a person assigned by a Tribal Court or other court of competent
jurisdiction, and having the duty and authority to provide care and
control of a child as set forth in Chapters 30 and 33 of the Tribal
Code.
30.327 Immediate Family.
“Immediate
family” members are parents, stepparents, siblings, half-siblings.
30.328 Indian.
“Indian”
means any person who is a member of an Indian tribe, or who is an Alaska
Native and a member of a regional corporation as defined in §1606
of Title 43.
30.329 Indian Child.
"Indian
child" means a child who is a member of a tribe or band that is
acknowledged to exist as a tribe or band by the United States Secretary
of the Interior or a historic tribe or band recognized by the Michigan
State Indian Commission, or a child who is eligible for such membership
who is the natural child of at least one parent who is a member or eligible
for membership in any such tribe or band.
30.330 Judge.
"Judge"
means a judge of the Sault Ste. Marie Chippewa Tribal Court.
30.331 Lay Advocate.
"Lay
Advocate" means a Tribal member who represents the parents, guardians
or custodians in the Tribal Court pursuant to Chapter 87.
30.332 Least Restrictive Alternative.
"Least
restrictive alternative" means the placement alternative, which
is the least restrictive method, in terms of restrictions to be placed
upon the child and family, of obtaining the objectives of the Tribal
Court and this Chapter.
30.333 Living Together Partner.
A “living
together partner” includes a boyfriend or girlfriend, regardless
of where the person resides, of the parent or person responsible for
the child’s health or welfare. If the above conditions are met
the LTP is also included in the definition of a person responsible for
the child’s health or welfare. The following persons are excluded
from the definition of LTP: the child’s parents, grandparents or
great-grandparents, brother or sister, aunt or uncle, or niece or nephew.
30.334 Minor.
A “minor”
means a person less than eighteen (18) years of age.
30.335 Multidisciplinary Team.
A “multidisciplinary
team” is a team established to assist in the prosecution of sexual
and physical abuse cases.
30.336 Parent.
"Parent"
means a person who is legally responsible for the control and care of
the child, including a mother, father, guardian, or custodian, including
a natural or adoptive parent, but does not include persons whose parental
rights have been terminated, nor does it include an unwed father whose
paternity has not been acknowledged or established.
30.337 Prosecutor.
"Prosecutor"
means the prosecuting official on behalf of the Sault Ste. Marie Tribe
of Chippewa Indians.
30.338 Sexual Abuse.
Any conduct
of a sexual nature that would be prohibited by Tribal, Federal or State
law.
30.339 Tribal Court.
"Tribal
Court" means the Sault Ste. Marie Chippewa Tribal Court established
by Chapter 80.
30.340 Tribe.
"Tribe"
means the Sault Ste. Marie Tribe of Chippewa Indians.
30.341 Tribal Council or Tribal Board.
"Tribal
Council or Tribal Board" means the Sault Ste. Marie Tribe of Chippewa
Indians Board of Directors.
SUBCHAPTER IV: ORGANIZATION AND FUNCTION OF THE TRIBAL COURT
30.401 Tribal Court Personnel.
(1) The
judge of the Tribal Court shall have the authority and duties as set
forth in this Chapter, in Tribal Code Chapter 36 and Chapter 80, or
inherent in the position of Tribal judge.
(2)
The Tribal prosecutor shall represent the Tribe in all proceedings
under this Chapter.
(3) The
Tribal Court clerk is the clerk of the Tribal Court who shall be responsible
for maintaining all child welfare records of Tribal Court. Child welfare
records will be kept separate from other court records.
30.402 Taking a Child into Custody.
(1) The
Tribal Court may order investigation and discovery, including but
not limited to, taking of photographs, gathering physical evidence,
and examinations or evaluations of a child, parent, guardian or custodian,
conducted by a physician, dentist, psychologist, or psychiatrist,
upon a showing of probable cause to believe that a child is a child-in-need-of-care,
which may be done ex parte.
(2) If
the Tribal Court finds probable cause to believe the child is a child-in-need-of-care,
and that the conditions in which the child is found present a substantial
risk of harm to the child’s life, physical health or mental well-being,
the Tribal Court may order the child be taken into custody, upon petition
by any person and signed by the Tribal Prosecuting Attorney, which
may be ex parte. The Tribal Court may include in such an order:
(a)
An authorization to enter a specified premises to remove the child,
(b)
Gather evidence, or
(c)
To place the child in protective custody pending preliminary hearing.
(3) A
child may be taken into protective custody without a Tribal Court
order by a law enforcement officer or caseworker if such person has
probable cause to believe the child is a child-in-need-of-care, and
(a)
Failure to remove the child may result in a substantial risk of
death, serious injury, or serious emotional harm, or
(b)
The parent, guardian or custodian is absent and it appears, from
the circumstances, that the child is unable to provide for his/her
own basic necessities of life, and no satisfactory arrangements
have been made by the parent, guardian, or custodian to provide
for such necessities and no alternative arrangements, except removal,
are available to protect the child.
(4) If
grounds for removal are corrected, the child may be returned to the
parent, guardian or custodian by the person originally authorizing
removal or by the caseworker.
(5) A
person who takes a child into custody without a Tribal Court order
shall make reasonable efforts to provide immediate notice to the Tribal
Court, parent, guardian, or custodian and/or child’s Tribe if
different than the Sault Ste. Marie Tribe of Chippewa Indians.
30.403 Substance Abuse Risk Assessment.
Allegations
of adults and parent/caregiver’s using or in possession of drugs/alcohol
residing in the child’s home may result in an assessment to determine
whether the child is at risk.
30.404 Duty to Report.
(1) Any
person who has a reasonable cause to suspect that a child is a child-in-need-of-care
shall immediately make a report to the Anishnabek Community and Family
Services Department or to the Tribal Police or other designated agency.
(2) Any
physician, nurse, dentist, optometrist, or any other medical or mental
health professional including a community health representative; volunteers
working with families; school principal, teacher or other official;
social workers; child day care center worker or other child care staff
including foster parents; residential care or institutional personnel;
counselor; peace officer or other law enforcement official including
probation officer; or a member of the Child Welfare Committee; who
has reasonable cause to suspect that a child may be a child-in-need-of-care
shall make immediately, by phone or otherwise, a report, or cause
a report to be made, of the suspected condition to the Anishnabek
Community and Family Services, Tribal Police or other designated agency.
(3) A
person mandated to report under §30.404(2) shall immediately
report to the Anishnabek Community and Family Services if the person
knows or has reason to suspect that a woman is pregnant and has abused
alcohol or used a controlled substance for a nonmedical purpose during
the pregnancy.
30.405 Child-in-need-of-care Report.
(1) Persons
mandated to report under §30.404 shall include the following
information if known:
(a)
Names, addresses, and tribal affiliation of the child and his parents,
guardian or custodian.
(b)
The child’s age
(c)
The nature of the actual or suspected child abuse or neglect
(d)
Previous abuse or neglect of the child or his siblings.
(e)
Name, age and address of the person alleged to be responsible for
the child’s abuse or neglect.
(f)
Name and address of the person or agency making the report.
30.406 Medical Examinations.
(1) Anishnabek
Community and Family Services may request a Tribal Court order for
a medical evaluation of a child pursuant to §30.1001 of this
Chapter. The caseworker shall have a medical evaluation done without
a Tribal Court order if the child’s health is seriously endangered
and a Tribal Court order cannot be obtained.
(2) When
a child suspected of a being a child-in-need-of-care is seen by a
physician, the physician shall make the necessary examinations, which
may include physical examinations, x-rays, photographs, laboratory
studies, and other pertinent studies.
(3) The
physician shall immediately report the results of the evaluation to
Anishnabek Community and Family Services, law enforcement or other
designated agency.
30.407 Testimonial Privileges Abrogated.
The physician-patient
privilege, husband and wife privileges, or any privilege except the
attorney-client privilege, both as they relate to the witness and to
the exclusion of confidential communications, shall not pertain in any
judicial proceeding in which a child's status as an abused or abandoned
child, or a child-in-need-of-care, is an issue.
30.408 Immunities.
(1) The
following persons are immune from civil or criminal liability for
actions or inaction’s in matters relating to child welfare:
(a)
The Child Welfare Committee and its individual members.
(b)
Judges and Tribal Court staff of the Tribal Court.
(c)
Anishnabek Community and Family Services or designated agency.
(d)
Others acting on the Tribe's behalf under this Chapter.
(e)
Persons filing petitions under this Chapter or providing information
to Tribal authorities regarding suspected child abuse or neglect.
(2) The
identity of a reporting person shall be confidential subject to disclosure
only with the consent of that person or by judicial process. A person
acting in good faith who makes a report and cooperates in an investigation
shall be immune from civil or criminal liability.
30.409 Initiation of Proceedings by Petition.
(1) Proceedings
in the Tribal Court involving child-in-need-of-care shall be initiated
by the filing of a petition signed by the prosecutor, or his designee.
(2) When
a child is in detention or custody, and filing of the petition is
not authorized by the prosecutor, the child shall be released.
30.410 Petition Content.
(1) Petitions
initiating proceedings in the Tribal Court shall contain the following
information:
(a)
The facts necessary to invoke the jurisdiction of the Tribal Court
together with a statement that the child is a child-in-need-of-care.
(b)
A plain and concise statement of facts upon which the allegations
are based including the dates and the location at which the alleged
actions occurred.
(c)
The child's name, birthdate and location.
(d)
The name and location of the child's parent or guardian, if known.
(e)
The name and signature of the prosecutor who approves the petition
and the date of approval.
(f)
Whether the child is in custody or detention and, if so, the place
and the time thereof.
(2) If
the petition requests the termination of parental rights, the petition
shall meet the requirements of sub. (1) and shall contain notice of
a request to terminate parental rights.
(3) The
petition shall be filed with the clerk of the Tribal Court.
30.411 Amendment to Petition.
When it
appears during the course of any proceeding under this Chapter that
an issue has been omitted from the petition or motions and appears from
the facts to be appropriate, the Tribal Court may on a motion by the
prosecutor or counsel for the child amend the petition or motions, and
proceed to hear and determine the additional or other issues, as though
originally and properly brought.
30.412 Dismissal of Petition.
A petition
alleging that a child is in need of care or supervision may be dismissed
for failing to comply with the requirements of §30.410.
30.413 Summons - Service.
(1) After
a petition is filed, the Tribal Court shall fix a time for a hearing
and shall direct the issuance of a summons.
(2) A
summons shall be issued to the child's parent or guardian when the
child is alleged to be a child-in-need-of-care. A summons shall be
issued to the child if over the age of twelve (12) years.
(3) A
summons issued to the child's parent or guardian or to the person
with whom the child resides shall require them to appear before the
Tribal Court and require the person with whom the child resides to
cause the child to appear before the Tribal Court unless the child's
presence is excused by the Tribal Court.
30.414 Notice of Hearing.
(1) Persons
Entitled to Notice: The Tribal Court shall insure that the following
persons are notified of each hearing.
(a)
The parent or guardian.
(b)
The attorney for the parent or guardian.
(c)
The child or the advocate for the child.
(d)
The petitioner and/or prosecuting attorney.
(e)
The responsible child placing agency.
(f)
Any other person the Tribal Court may direct to be notified.
(2) Notice:
Except for preliminary hearings, notice of hearing must be given in
writing which may be on the record or mailed to this last known address
at least seven (7) days prior to the hearing. At least 14 days prior
to a hearing on a petition to terminate parental rights.
(3) Failure
to Appear: When a party fails to appear in response to a notice of
hearing, the Tribal Court may order the party's appearance by summons
or subpoena.
30.415 Subpoenas.
(1) Any
party or the Tribal Court on its own motion may cause a subpoena to
be served on a person whose testimony or appearance is desired.
(2) A
person may waive notice of hearing or service of process. The waiver
shall be in writing, or on the record before the Tribal Court.
30.416 Subsequent Notices.
After a
party's first appearance before the Tribal Court, subsequent notice
of proceedings and pleadings shall be served on that party or, if the
party has an attorney, on the attorney for the party, either personally
or by ordinary mail, except that a summons must be served before trial
or termination hearing as provided in §30.413 unless a prior Tribal
Court appearance of the party in the case was in response to service
by summons.
30.417 Basic Rights.
(1) At
all stages of the proceedings in which a child is alleged to be a
child-in-need-of-care, the child's parent or guardian shall have the
right to be represented by counsel, at their own expense.
(2) In
all proceedings, the child and the child's parent or guardian shall
be entitled to introduce evidence, to be heard on their own behalf,
and to examine witnesses.
(3) In
all proceedings, the general public shall be excluded except persons
whose presence is requested by a party or persons who has a direct
interest in the proceeding.
(4) Any
extended family member shall be permitted to attend any hearings.
30.418 Discovery.
(1) Upon
written request, the respondent shall have the right to inspect, copy
and photograph social, psychiatric, psychological, medical, and school
reports and records concerning the child in the possession of the
prosecutor or other community official assigned to the case relating
to the child.
(2) If
a request for discovery is refused, application may be made to the
Tribal Court for an order granting discovery. Motions for discovery
shall certify that a request for discovery has been made and refused.
(3) The
Tribal Court may deny, in whole or part, otherwise limit or set conditions
on the discovery authorized upon a showing by a party upon whom the
request for discovery is made that granting discovery violates a privileged
communication.
(4) On
a motion of a party, the Tribal Court may permit discovery of any
other materials and evidence, including untimely requested materials
and evidence that would have been discoverable of right. Absent manifest
injustice, no motion for discovery will be granted unless the moving
party has requested and has not been provided the materials or evidence
sought through an order of discovery.
30.419 Miscellaneous Hearing Procedures.
(1) Electronic
Equipment - Support Person: The Tribal Court may allow the use of
closed circuit television, speaker telephone, or other similar electronic
equipment to facilitate hearings or to protect the parties. The Tribal
Court may allow the use of videotaped statements and depositions,
anatomical dolls, support persons, and take other measures to protect
child witnesses.
(2) Additional
Evidence: If at any time the Tribal Court believes that the evidence
has not been fully developed, it may:
(a)
Examine a witness,
(b)
Call a Witness, or
(c)
Adjourn the matter before the Tribal Court, and
(i)
Cause service of process on additional witnesses, or
(ii)
Order production of other evidence.
(3) Expert
Testimony: Subject to the Tribal Court’s prior review and approval
and availability of funds, an indigent parent may have appointed one
expert witness of his/her own choosing whose reasonable fees and expenses,
subject to the Tribal Court’s prior review and approval, shall
be paid from the Tribal Court funds.
(4) Impartial
Questioner: Upon motion of a party the Tribal Court may appoint an
impartial psychologist or psychiatrist to ask questions of a child
witness at a hearing.
30.420 Putative Fathers.
(1) If
at any time during the pendency of a proceeding, the Tribal Court
determines that the child has no father as defined by §30.323
the Tribal Court may, in its discretion, take appropriate action as
described in this Section.
(2) The
Tribal Court may take initial testimony on the tentative identity
and address of the natural father. If the Tribal Court finds probable
cause to believe that an identifiable person is the natural father
of the child, the Tribal Court will direct that notice be served on
that person. The notice will include the following information:
(a)
That a petition has been filed with the Tribal Court;
(b)The
time and place of hearing at which the natural father is to appear
to express his interest, if any, in the child; and
(c)
A statement that failure to attend the hearing will constitute a
denial of interest in the child, a waiver of notice for all subsequent
hearings and could result in termination of any parental rights.
(3) After
notice to the putative father, the Tribal Court may conduct a hearing
and determine that:
(a)
The putative father has been personally served or served in some
manner which the Tribal Court finds to be reasonably calculated
to provide notice to the putative father. If so, the Tribal Court
may proceed in the absence of the putative father.
(b)
A preponderance of the evidence establishes that the putative father
is the natural father of the child and justice requires that he
be allowed 14 days to establish his relationship to his child(ren);
provided that if the Tribal Court decides the interests of justice
so require, it shall not be necessary for the mother of the child
to join in an acknowledgment.
(4) The
Tribal Court may extend the time for good cause shown.
(a)
If there is probable cause to believe that another identifiable
person is the natural father of the child, the Tribal Court shall
proceed with respect to the other person.
(b)
If after diligent inquiry, the identity of the natural father cannot
be determined, the Tribal Court may proceed without further notice.
(5) The
Tribal Court may find that the natural father waives all rights to
further notice, including the right to notice of termination of parental
rights if:
(a)
He fails to appear after proper notice, or
(b)
He appears, but fails to establish paternity within the time set
by the Tribal Court.
30.421 Failure to Appear - Notice of Publication.
When persons
whose whereabouts are unknown fail to appear in response to notice by
publication or otherwise, the Tribal Court need not give further notice
by publication of subsequent hearings except a hearing on the termination
of parental rights.
30.422 Mother or Father Without Physical Custody.
A mother
or father of the child, who, at the time the child comes to Tribal Court,
does not otherwise fall with the definition of parent or party, and
whose parental rights over the child have not been terminated, must
be notified of the first hearing on the petition. Subsequent notice
need only be given when this person requests further notice.
30.423 Preliminary Hearing.
(1) If
the child has been released to his/her parent, guardian or custodian,
the Tribal Court shall conduct a preliminary hearing within ten (10)
days after filing of the petition.
(2) If
the child is placed in an out of home placement, the Tribal Court
shall conduct a preliminary hearing within 48 hours of placement or
upon the next working day, whichever is later, for the purpose of
determining:
(a)
Whether probable cause exists to believe the child is a child-in-need
of care.
(b)
Whether the home conditions continue to present a substantial risk
of harm to the child's life, physical health or mental well-being
and whether any alternatives except removal of the child is reasonably
available to adequately safeguard the child from such risk.
(3) If
the child's parent, guardian or custodian is not present at the preliminary
hearing, the Tribal Court shall make an inquiry into what efforts
have been made to notify and to obtain the presence of the parent,
guardian or custodian. If it appears that further efforts are likely
to produce the child's parent, guardian or custodian, the Tribal Court
shall recess for not more than two (2) days, excluding Saturdays,
Sundays, and legal holidays, and direct the petitioner to make continued
efforts to obtain the presence of the child's parent, guardian or
custodian. The preliminary hearing may be conducted in the parent's
absence.
(4) The
Tribal Court shall read the allegations in the petition in open Tribal
Court, unless waived and shall advise the parent of the right to have
counsel represent them at their own expense and their right to a trial
on the allegations in the petition. After advising the parent of the
right to remain silent, the Tribal Court shall allow the parent an
opportunity to deny or admit the allegations and make a statement
of explanation.
(5) If
the Tribal Court finds that probable cause exists to believe the child
is a child-in-need-of-care the Tribal Court:
(a)
Shall order the parent, guardian or custodian to appear at an adjudicatory
hearing on a date and time set by the Tribal Court.
(b)
May release the child in the custody of either the child's parents,
guardian or custodian under such reasonable terms and conditions
as are necessary for either the physical or mental well-being of
the child.
(c)
May order placement of the child with someone other than a parent,
guardian or custodian if the Tribal Court, after hearing, determines
that both of the following conditions exist:
(i)
Custody of the child with parent, guardian or custodian presents
a substantial risk of harm to the child's life, physical health
or mental well-being and no provision of service or other arrangement
except removal of the child is reasonable available to adequately
safeguard the child from such risk.
(ii)
Conditions of custody of the child away from parent, guardian
or custodian are adequate to safeguard the child's health and
welfare.
(6) The
Tribal Court may at any time after conducting a preliminary hearing
at which probable cause to proceed upon a petition is found, order
any involved child, parent or guardian to undergo a substance abuse
assessment, a physical, mental or psychological examination by a qualified
professional.
30.424 Pleas of Responsible or No Contest.
(1) A
respondent may make a plea of admission or of no contest to the original
charge in the petition. The Tribal Court has discretion to allow a
respondent to enter a plea of admission or a plea of no contest to
an amended petition. The plea may be taken at any time after the filing
of the petition provided that the petitioner and the attorney for
the child have been notified of a plea offer to an amended petition
and have been given the opportunity to object before the plea is accepted.
(2) Advice
of Rights and Possible Disposition: Before accepting a plea of admission
or plea of no contest, the Tribal Court must advise the respondent
on the record or in a writing that is made a part of the file:
(a)
Of the allegations in the petition;
(b)
That if the Tribal Court accepts the plea the respondent will give
up the right to:
(i)
Trial by a judge or trial by a jury.
(ii)
Have the petitioner prove the allegations in the petition by a
preponderance of the evidence.
(iii)
Have witnesses against the respondent appear and testify under
oath at the trial.
(iv)
Cross-examine witnesses.
(v)
Have the Tribal Court subpoena any witnesses the respondent believes
could give testimony in the respondent’s favor.
(c)
Of the consequences of the plea including that the plea can later
be used to terminate parental rights.
(3) Voluntary
Plea: The Tribal Court shall not accept a plea of admission or of
no contest without satisfying itself that the plea is knowingly, understandably,
and voluntarily made.
(4) Accurate
Plea: The Tribal Court shall not accept a plea of admission or of
no contest without establishing support for a finding that the child
comes within the jurisdiction of the Tribal Court, preferably by questioning
the respondent unless the offer is to plead no contest. If the plea
is no contest, the Tribal Court shall not question the respondent,
but, by some other means, shall obtain support for a finding that
the respondent committed the offense against the child.
30.425 Adjudicatory Hearing.
(1) The
Tribal Court shall conduct an Adjudicatory Hearing for the purpose
of determining whether the child is a child-in-need-of-care.
(2) The
Adjudicatory Hearing shall commence as soon as possible but not later
than 65 days after the petition is filed with the Tribal Court.
(3) Continuances
of an Adjudicatory hearing may be granted by the Tribal Court but
only:
(a)
Upon stipulation of the parties.
(b)
Where process cannot be completed.
(c)
Where the Tribal Court finds that the testimony of a presently unavailable
witness is needed.
(d)
One time only for up to fourteen (14) days at a parent's request
for parents to obtain counsel.
(e)
For good cause shown.
(4) The
general public shall be excluded from the proceedings and only the
parties, their counsel, witnesses, the child advocate and other persons
determined necessary or useful to the proceedings by the Tribal Court
shall be admitted.
(5) All
relevant and material evidence, which is reliable and trustworthy,
may be admitted at the hearing and may be relied upon by the Tribal
Court to the extent of its probative value.
(6) The
parties shall be afforded an opportunity to examine and controvert
written reports received by the Tribal Court and shall be allowed
to cross-examine individuals who made the reports when those individuals
are reasonably available.
(7) The
Tribal Court may rely upon conference telephone or other electronic
devices that permit all those appearing or participating to hear and
speak to each other.
(8) The
Tribal Court may proceed with the hearing in this absence of the parent,
guardian or custodian provided that proper notice was given pursuant
to §30.414.
(9) If
the allegations of the petition are sustained by a preponderance of
the evidence, the Tribal Court shall find the child to be a child-in-need-of-care
and schedule a Dispositional Hearing. The Tribal Court may also enter
orders of further discovery, evaluation and assessment and other orders
to protect the child.
(10)
If the allegations of the petition are not sustained, the Tribal Court
shall dismiss the matter and release the child.
30.426 Dispositional Hearing.
(1) A
Dispositional Hearing is conducted to determine measures to be taken
by the Tribal Court with respect to the child properly within its
jurisdiction and, when applicable, against any adult, once the Tribal
Court has determined following hearing, plea of admission or no contest
that the child comes within its jurisdiction.
(2) The
Dispositional Hearing may be held immediately after Adjudication.
The interval, if any, between the Adjudicatory Hearing and the Dispositional
Hearing is within the discretion of the Tribal Court. When the child
is in placement, the interval may not be more than 35 days except
for good cause shown. If the Dispositional Hearing is not held immediately
after the Adjudication, notice of hearing may be given by scheduling
it on the record in the presence of the parties or in accordance with
§30.414.
(3) All
relevant and material evidence, including oral and written reports,
may be received and may be relied on to the extent of its probative
value, even though such evidence may not be admissible at trial. The
Tribal Court shall consider the case service plan and any report by
an agency responsible for the care and supervision of the child concerning
efforts, to prevent removal, or to rectify conditions that caused
removal of the child from the home.
30.427 Disposition Orders.
(1) The
Tribal Court shall enter an order of disposition after considering
the case service plan and other evidence offered bearing on Disposition.
The Tribal Court may order compliance with all or part of the case
service plan and may enter such orders as it considers necessary in
the interest of the child. The Order of Disposition shall state whether
reasonable efforts have been made to prevent the child's removal from
his home or to rectify the conditions that caused the child's removal
from the home.
(2) If
a child has been found to be a child-in-need-of-care, the Tribal Court
may make a referral to the Michigan Family Independence Agency for
care, custody and control or make the following dispositions which
are listed by priority and shall warn about the potential consequences
of not following the orders:
(a)
Permit the child to remain with his/her parent(s), guardian or custodian,
subject to such conditions as the Tribal Court may prescribe.
(b)
Place the child with a relative within the primary service area
of the Tribe, subject to such conditions as the Tribal Court may
prescribe.
(c)
Place the child in a licensed foster home within the primary service
area of the Tribe, subject to such conditions as the Tribal Court
may prescribe.
(d)
Place the child in a foster home, or home of a relative, outside
of the primary service area of the Tribe, subject to such conditions
as the Tribal Court may prescribe.
(e)
Place the child in a group home or residential care facility designated
by the Tribal Court.
(f)
Direct the presenting officer to file a petition to terminate parental
rights under this Chapter.
(3) If
a child remains under the jurisdiction of the Tribal Court, an order
may be amended or supplemented within the authority granted to the
Tribal Court in this Chapter at any time as the Tribal Court considers
necessary and proper and in the best interests of the child.
(4) Reimbursement
for Care: Parents, custodians, or guardians may be ordered by the
Tribal Court to reimburse the Tribe and/or the Michigan Family Independence
Agency for the cost of care and placement. Reimbursement will be based
on a formula to be determined by the Tribal Court.
(5) Redirect
of Payments: Parents, custodians, or guardians may be ordered by the
Tribal Court to make child support payments for children placed with
relative or friends who are not eligible for foster care payments
or payments that are not sufficient to cover the cost of caring for
the children.
(6) Amendments:
If a child remains under the jurisdiction of the Tribal Court, an
order may be amended or supplemented at any time, as the Tribal Court
considers necessary and proper.
30.428 Disposition Review Hearing.
(1) The
Dispositional Order is to be reviewed at the discretion of the Tribal
Court but at least once every ninety (90) days.
(2) Notice
of the Review Hearing shall be provided on record or by ordinary mail
as provided in §30.414.
(3) At
a Review Hearing, the Tribal Court shall review on the record the
compliance with the case service plan and the previous orders of the
Tribal Court including:
(a)
Services provided or offered to the child and his or her parent,
guardian or custodian and whether they have complied with and benefited
from those services.
(b)
Visitation with the Child. If visitation did not occur or was infrequent,
the Tribal Court shall determine why visitation did not occur or
was infrequent.
(4) After
review of the case service plan, the Tribal Court shall determine
the extent of progress made toward alleviating or mitigating the conditions
that caused the child to become and to remain a child-in-need-of-care.
The Tribal Court may modify any part of the case plan including, but
not limited to, the following:
(a)
Prescribing additional services that are necessary to rectify the
conditions that caused the child to become or to remain a child-in-need-of-care.
(b)
Prescribing additional actions to be taken by the parent, guardian
or custodian to rectify the conditions that caused the child to
become or remain a child-in-need-of-care.
(5) At
a Review Hearing, the Tribal Court shall determine the continuing
necessity and appropriateness of the child's placement and may order
the return of the child to the custody of the parent, continue the
Dispositional Order, modify the Dispositional Order, or enter a new
Dispositional Order.
(6) If
the child remains in placement, the Tribal Court shall determine at
the Dispositional Hearing and at each Review Hearing whether the case
should be reviewed before the next review hearing required under this
Chapter. In making this determination, the Tribal Court shall consider,
but not be limited to, both of the following:
(a)
The parent's ability and motivation to make necessary changes to
provide a suitable environment for the child.
(b)
Whether there is a reasonable likelihood that the child may be returned
to his or her home prior to the next Review Hearing required by
this Chapter.
(7) An
agency report filed with the Tribal Court shall be accessible to all
parties to the action and shall be offered into evidence.
30.429 Permanency Planning Hearing.
(1) If
a child remains adjudicated a child-in-need-of-care and parental rights
to the child have not been terminated, the Tribal Court shall conduct
a permanency planning hearing not more than twelve (12) months after
entry of the order of removal and every ninety (90) days thereafter,
so long as the child remains a child-in-need-of-care. A permanency
planning hearing may be combined with a disposition review hearing
under §30.426.
(2) A
permanency planning hearing shall be conducted to review the status
of the child and the progress being made toward the child's return
to his natural parents or to some other permanent home.
(3) If
parental rights to the child have not been terminated and the Tribal
Court determines at a permanency planning hearing that the return
of the child would not cause a substantial risk of harm to the child's
life, physical health or mental well-being, the Tribal Court shall
order the child returned to his or her parent. In determining whether
the return of the child would cause a substantial risk or harm to
the child, the Tribal Court shall view the failure of the parent to
substantially comply with the terms and conditions of the case service
plan and Dispositional Orders of the Tribal Court as evidence that
return of the child to his or her parent would cause a substantial
risk of harm to the child's life, physical health or mental well-being.
(4) If
the Tribal Court determines at a permanency planning hearing that
the child should not be returned to his or her parent, the agency
shall propose one of the following alternative permanent placement
plans:
(a)
The child be placed permanently with a relative within the primary
service area of the Tribe.
(b)
The child be placed permanently with a relative who is outside the
primary service area of the Tribe.
(c)
The child remain in long-term foster or residential care.
(d)
A petition for Guardianship under Subchapter Viii be filed by the
current caretaker of the child, the child or Agency.
(e)
A petition to terminate parental rights under this Chapter be filed
by the Agency.
(5) If
the Tribal Court determines that the child should not be returned
to his or her parents, the Tribal Court shall order permanent placement
with a relative, long term foster or residential care, or continue
the child in placement with the agency for a limited period so that
petitions under §30.508 may be filed.
SUBCHAPTER V: TERMINATION OF PARENTAL RIGHTS
30.501 Preferred Right of Parents.
The purpose
of this subchapter is to provide for the voluntary and involuntary termination
of the parent-child relationship and for the substitution of parental
care and supervision by judicial process. This subchapter shall be construed
in a manner consistent with the philosophy that the family unit is of
most value to the community, and the individual family members, when
that unit remains united and together. Termination of the parent-child
relationship should be used only as a last resort, when, in the opinion
of the Tribal Court, all efforts have failed to avoid termination and
it is in the best interests of the child concerned to proceed under
this section.
30.502 Voluntary Relinquishment of Parental Rights.
(1) Voluntary
Relinquishment of Parental Rights: Parental rights may be voluntarily
terminated by a parent in writing, if signed by the parent in the
presence and with the approval of the Tribal Court. Relinquishment
shall not be accepted or acknowledged by the Tribal Court prior to
ten (10) days after the birth of the child. The Tribal Court shall
ensure that the parent understands the consequences of the voluntary
termination prior to approving it. A parent who wishes to relinquish
his/her parental rights shall be provided an interpreter if he/she
does not understand English. Prior to the entry of an order of termination,
the Tribal Court shall determine that entry of such an order is in
the best interests of the effected child(ren) and of the tribe.
(2) A
consent shall be dated and shall positively identify the party giving
the consent and the child who is being released for adoption.
(3) Withdrawal
of Voluntary Relinquishment: A parent who has voluntarily relinquished
parental rights to a child may withdraw such consent to termination
of parental rights at any time prior to the issuance of a final decree
of adoption and demand re-establishment of the parent-child relationship
upon a showing to the Tribal Court of clear and convincing evidence
that such consent was obtained by fraud or duress.
30.503 Involuntary Termination of Parental Rights.
The Tribal
Court may decree a permanent termination of parental rights as provided
herein concerning a child over whom the jurisdiction of the Tribal Court
has been invoked under this Subchapter. The rights of one parent may
be terminated without affecting the right of the other.
(a) Fact-finding
Step: Legally admissible evidence must be used to establish the factual
basis of parental unfitness sufficient to warrant termination of parental
rights. The proofs must be clear and convincing.
(b) Best
Interest Step: Once it is established that one or more grounds exists
to terminate parental rights of respondent over the child, the Tribal
Court shall order termination of respondents parental rights and order
that additional efforts for reunification of the child with the respondent
shall not be made, unless the Tribal Court finds that termination
is clearly not in the best interest of the child.
30.504 Grounds for Involuntary Termination of Parental Rights.
The Tribal
Court may terminate the parental rights of a parent to a child adjudicated
a child-in-need-of-care if the Tribal Court finds, by clear and convincing
evidence, one or more of the following:
(1) Abandonment:
The child has been abandoned under either of the following circumstances:
(a)
A parent of a child is unidentifiable and has deserted the child
for twenty-eight (28) or more days and has not sought custody of
the child during that period. For purposes of this section, a parent
is unidentifiable if the parent’s identity cannot be ascertained
after reasonable efforts have been made to locate and identify the
parent; or
(b)
The child has a court appointed guardian and the parent has failed
or neglected to provide any substantial support for the child for
two (2) years, if a support order has been entered, and the parent
has regularly and substantially failed or neglected to visit, contact,
or communicate with the child for two (2) years.
(2) Physical
Injury or Sexual Abuse: The child or a sibling of the child has suffered
physical injury or physical or sexual abuse under either of the following
circumstances:
(a)
A parent’s act caused the physical injury or physical or sexual
abuse and the Tribal Court finds that there is a reasonable likelihood
that the child will suffer from injury or abuse in the foreseeable
future if placed in the parent’s home; or
(b)
A parent who had the opportunity to prevent the physical injury
or physical or sexual abuse, failed to do so and the Tribal Court
finds that there is a reasonable likelihood that the child will
suffer injury or abuse in the foreseeable future if placed in the
parent’s home;
(3) Unrectified
Conditions: The parent was a respondent in a proceeding brought under
this chapter, twelve (12) or more months have elapsed since the issuance
of an initial disposition order or removal of the child, and the Tribal
Court, by clear and convincing evidence, finds either of the following:
(a)
The conditions that led the adjudication continue to exist and there
is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the age of the child; or
(b)
Other conditions exist that cause the child to be a child-in-need-of-care.
The parent has received recommendations to rectify those conditions,
the conditions have not been rectified by the parent after the parent
has received notice, a hearing, and been given a reasonable opportunity
to rectify the conditions, and there is no reasonable likelihood
that the conditions will be rectified within a reasonable time considering
the age of the child.
(4) Failure
to Provide Proper Care: The parent, without regards to intent, fails
to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and
custody within a reasonable time considering the age of the child.
(5) Conviction
of Violent or Sexual Crime: A parent of the child is convicted of
a violent or criminal sexual crime against the other parent or a sibling
of the child.
(6) Conviction
of a Felony: A parent of the child is convicted of a felony of a nature
as to prove the unfitness of the parent to have future custody of
the child.
(7) Imprisonment
for More than two (2) Years. The Parent will be imprisoned for over
two (2) years and the parent has not provided for the child’s
proper care and custody, and there is no reasonable expectation that
the parent will be able to provide proper care and custody within
a reasonable time considering the age of the child.
(8) Parental
Rights to Sibling Terminated. Parental rights to one (1) or more siblings
of the child have been terminated due to serious and chronic neglect
or physical or sexual abuse, and prior attempts to rehabilitate the
parents have been unsuccessful.
(9) When
a child has been in foster care for fifteen (15) of the most recent
twenty-two (22) months.
30.505 Termination at Initial Disposition.
If a petition
to terminate parental rights to a child is filed, the Tribal Court may
enter an order terminating parental rights at the initial disposition
hearing.
30.506 Quality of Evidence.
The same
rules of evidence which apply at adjudication shall apply in termination
of parental rights proceedings.
30.507 Contents of Petition.
The petition
for termination of parental rights filed pursuant to this Subchapter
shall include to the best information and belief of the petitioner:
(1) the
name and address of the petitioner;
(2) the
name, sex, date and place of birth and location of the child;
(3) facts
establishing the Tribal Court's jurisdiction;
(4) the
relationship of the petitioner to the child;
(5) the
names and addresses and location of the parents if known;
(6) the
names and addresses of the person having legal custody or guardianship
of the child;
(7) the
grounds on which termination of the parent-child relationship is sought.
30.508 Supplemental Petitions for Termination of Parental Rights.
(1) If
the parental rights of the respondent over the child are not terminated
at the initial dispositional hearing, and the child is in foster care
in the temporary custody of the Tribal Court, the Tribal Court following
a dispositional review hearing or a permanency planning hearing may
take action on a supplemental petition that seeks to terminate parental
rights of respondent over the child on the basis of one or more grounds.
(2) Hearing
on Petition: The hearing on a supplemental petition for termination
of parental rights under this subchapter must be held within 42 days
after the filing of the supplemental petition. The Tribal Court may,
for good cause shown, extend the time period for an additional 21
days.
(3) Admissible
evidence must be introduced to prove the fact(s) alleged in the supplemental
petition.
30.509 Notice of Hearing on Termination of Parental Rights.
(1) After
the petition is filed, the Tribal Court shall set a time for a hearing
to determine whether the rights of a parent to a child should be terminated.
(2) Notice
in writing of the hearing shall be sent to the child and the parent(s)
in the manner prescribed by this Chapter, Tribal Court rule or the
Tribal Court.
(3) The
hearing shall be conducted in the manner prescribed by this Chapter,
Tribal Court rule or the Tribal Court.
(4) A
record of the proceedings shall be made and the parties shall be advised
of their basic rights, including assistance of counsel.
30.510 No Jury Trial.
There shall
be no right to a jury trial at proceedings held to consider the termination
of a parent-child legal relationship.
30.511 Order Terminating Parental Rights.
(1) An
order terminating parental rights under this Code may not be entered
unless the Tribal Court makes findings of fact, states its conclusions
of law, and includes the statutory basis for the order. The Tribal
Court may state the findings and conclusions on the record or include
them in a written opinion. If the Tribal Court does not issue a decision
on the record following the hearing, it shall file its decision within
twenty-eight (28) days after the taking of final proofs.
(2) Every
order terminating the rights of one or both parents shall be in writing
and shall include facts upon which the decree is based. An order terminating
the parent-child relationship shall divest the parent and the child
of all legal rights, privileges, duties and obligations with respect
to each other but shall not disentitle a child to any benefit due
the child from any third person, agencies, state or the United States,
nor shall any action under this Code be deemed to effect any rights
and benefits that the child derives from the child’s descent
from a member of a federally recognized Indian tribe.
30.512 Advise of Right to Appeal.
Immediately
upon entry of an order terminating parental rights, the Tribal Court
shall advise the respondent parent orally or in writing that the parent
is entitled to appellate review of the order. Appellate review shall
occur by right. The clearly erroneous standard shall be used in reviewing
the findings of the Tribal Court on appeal from an order terminating
parental rights.
30.513 Action of Tribal Court After Termination.
Upon the
entry of an order terminating the rights of a parent or parents the
Tribal Court may either:
(1) place
the child for adoption under the appropriate proceedings; or
(2) place
the child; or
(3) continue
the child in the custody of the remaining parent.
30.514 Post Termination Review Hearings:
If a child
remains a ward of the Tribal Court following the termination of parental
rights to the child, the Tribal Court shall conduct a review hearing,
at least every ninety-three (93) days to review the progress towards
permanent placement of the child. The Tribal Court shall make findings
on whether reasonable efforts have been made to establish permanent
placement for the child and may enter such orders as it considers necessary
in the best interests of the child.
SUBCHAPTER VI: PLACEMENT PREFERENCES
30.601 Applicability.
(1) This
Subchapter shall apply to all child custody proceedings under the
Indian Child Welfare Act, 25 USC §1901 et seq., as to which the
Sault Ste. Marie Tribe of Chippewa Indians is the Indian child's tribe.
(2) The
placement preferences set forth in §30.602 constitute the codification
of the order of preference established pursuant to Resolution 93-32.
They are adopted by the Tribe pursuant to 25 USC §1915(c) and
are binding upon agencies and courts.
30.602 Foster Care and Adoption Placement Preferences.
(1) The
Tribe's first priority for adoption and foster care placement is for
placement of tribal children through the Binogii Placement Agency.
(2) In
order to accomplish the purposes of the Indian Child Welfare Act and
to maintain contact with the Indian culture, a child placement agency
shall place a child consistent with the following placement priorities,
unless waived by the Sault Tribe Child Welfare Committee:
(a)
The first priority is for placement with extended family in the
immediate area as follows:
(i)
grandparents;
(ii)
aunts/uncles;
(iii)
brothers/sisters; and
(iv)
first cousins to the child.
(b)
The second priority is for placement in the immediate area as follows:
(i)
an Indian family;
(ii)
a non-Indian family.
(c)
The third priority is for placement with an Indian family outside
the immediate area.
(d)
The fourth priority is for placement in the best interest of the
child as determined by the Child Welfare Committee.
SUBCHAPTER VII: ADOPTION
30.701 Purpose.
The purpose
of this Subchapter is to protect the rights and the welfare of Indian
children, natural parents, and adoptive parents. It is the policy of
the Tribal Board of Directors to promote the adoption of Indian children
by members of the Tribe.
30.702 Who May be Adopted.
Any child
who is a member of the Tribe or eligible for membership and who comes
within the jurisdiction of the Tribal Court.
30.703 Who May Adopt.
Subject
to the approval of a licensed child placement agency, any of the following
persons are eligible to adopt a child:
(1) Any
adult member of the Tribe is eligible to adopt a child.
(2) A
husband and wife may jointly adopt children but a person may not adopt
a child without approval of the adopting person's spouse.
(3) In
extraordinary circumstances as determined by the Tribal Court, when
the best interests of the Tribe and/or the child require, non-members
shall be eligible to adopt children.
30.704 Petitions for Adoption.
(1) A
petition for adoption shall be verified by the petitioner, signed
by the spouse and the petition shall specify:
(a)
The full names, ages and place of residence and marital status of
the petitioner and the relationship, if any, to the child to be
adopted.
(b)
The Indian tribal membership status of the child and of the petitioner.
(c)
The date, if applicable, when the child first was placed or lived
with the petitioner.
(d)
The date and place of birth of the child if known to the petitioner.
(e)
The adoptive name of the child if a change of name is desired.
(f)
That it is the desire of the petitioner to adopt the child, and
approved by the spouse of the petitioner.
(g)
A full description and statement of the value of all property owned
or possessed by the child, if known by the petitioner.
(h)
The status of parental rights of the adoptive parents.
(i)
Full disclosure of any fees or anything of value given or paid in
connection with the adoption of the child.
(2) Any
written consent required by this Chapter may be attached to the petition
or may be filed with the Tribal Court at or prior to the hearing.
30.705 Consent to Adoption; Who Shall Consent; Waiver.
(1) No
adoption shall be granted unless a voluntary relinquishment to adopt
has been obtained and filed with the Tribal Court from the following:
(a)
From both natural parents, if living:
(i)
Relinquishment is not necessary from a parent who has been declared
incompetent by a court of competent jurisdiction, and it appears
to the Tribal Court on reliable medical evidence that the incompetence
is in all likelihood permanent.
(ii)
Relinquishment is not necessary from a parent whose parental rights
have been terminated by a court of competent jurisdiction.
(iii)
Relinquishment of a father of a child born out of wedlock is governed
by §30.420.
(b)
From an agency which has been given consent to place the child for
adoption by the parent or parents whose relinquishment would be
necessary under sub. (a), or which has been authorized in other
legal proceedings to place the child for adoption.
(2) If
the child is twelve (12) years of age or older, the child shall not
be adopted without the child’s consent. Such consent shall be
given in Tribal Court or in such other form as the Tribal Court may
direct.
(3) The
Tribal Court may waive any requirement for the consent of any person,
except a natural parent of the child, when after a hearing the Tribal
Court determines that the interests of the child will be promoted
thereby. In such a case, the Tribal Court shall make written findings
of all facts upon which its order is founded.
30.706 Investigation and Reports.
Upon the
filing of a petition for adoption, the Tribal Court may request the
caseworker handling the adoption to inquire into, investigate, and report
to the Tribal Court and the Child Welfare Committee the stability of
the adoptee for adoption, the financial ability, moral and physical
fitness, and general background of the adopting parent (s); and make
recommendations on the proposed adoption. The Tribal Court may also
request any local, state or federal agency to provide assistance in
obtaining information as to the suitability of the adopting parent(s)
for the adoption.
30.707 Recommendation of the Indian Child Welfare Committee.
Upon completion
of the investigative report, the Tribe’s caseworker shall submit
his/her report to the Child Welfare Committee and the committee will
formulate a recommendation for the Tribal Court.
30.708 Hearing on Adoption Petition.
(1) Tribal
Court Initial Hearing: Within ten (10) days of the receipt of the
petition for adoption the Tribal Court shall schedule a hearing on
the petition of adoption.
(a)
Notice. The adoptee, adopting parent (s), and all other interested
parties shall be given notice of the hearing.
(b)
Appearance Mandatory: The adoptee and adopting parent (s) shall
appear in person at the initial hearing.
(2) Waiver
of Trial Custody Period: If the adoptee has been in the custody of
the adoptive parent (s) for more than six (6) months and the Child
Welfare Committee recommends adoption at the initial hearing, the
Tribal Court, upon a motion by the presenting officer, may waive the
trial custody period and the final adoption decree may be entered
at the initial hearing.
(3) Final
Hearing if Trial Custody Period Not Waived: Not less than ninety (90)
days, nor more than one hundred twenty (120) days, after the adoptee
has been in the custody of the adoptive parent (s), the adoptive parent
(s) shall appear before the Tribal Court. The Tribal Court shall hear
testimony about the welfare of the adoptee and the current status
of the adoptive home, and the desire of the adoptive parent (s) to
finalize the adoption.
(4) Adoption
Decree; Extension of Trial Custody Period: If the Tribal Court is
satisfied that the interests of the adoptee are best served by the
proposed adoption, the final adoption decree may be entered. The Tribal
Court may order, or adoptive parent (s) may request, a six (6) month
extension of the trial custody period, after which a final adoption
decree must be entered or the adoptee returned to the custody of the
Tribal Court.
30.709 Effect of the Final Decree of Adoption.
(1) Parent
and Child Relationship: After the final decree of adoption is entered,
the relation of parent(s) and child and the rights, duties and other
legal consequences of a natural relationship of child to parent(s)
shall thereafter exist between the adoptee and the adoptive parent
(s).
(2) Tribal
Status Not Effected: The status as a member of the Tribe shall not
be effected by adoption. An adoptee who is eligible for membership
in the Sault Ste. Marie Tribe of Chippewa Indians shall be enrolled
as a tribal member prior to the finalization of the adoption.
(3) Natural
Parents Relieved of Parental Responsibilities: After the final decree
of adoption is entered, the natural parents, except a natural parent
who is the spouse of an adoptive parent, shall be relieved of all
parental responsibilities for such adoptee and have no right regarding
the adoptee or right to inherit his/her property by descent or distribution.
(4)Assumption
of Surname: Children adopted by order of the Tribal Court shall assume
the surname of the person (s) by whom they are adopted, unless the
Tribal Court orders otherwise.
(5) Adoptees
shall be entitled to the same rights of person and property as children
or heirs of the adoptive parents. However, if an inheriting adoptee
is not a member of, or eligible for membership in the Sault Ste. Marie
Tribe of Chippewa Indians, then said child may not be eligible to
inherit any interest which the deceased member’s estate may have
to any Tribal privilege, right, land or property of any kind.
(6) Adoptees
shall be entitled to the society and companionship of their natural
siblings.
30.710 Withdrawal or Denial of Petition; Custody.
Consent
to adoption may be withdrawn by a parent (s) whose parental rights have
not been terminated, at any time before the entry of the final order
of adoption.
30.711 Confidentiality of Proceedings and Record.
Unless
the Tribal Court otherwise orders, hearings held in proceedings under
this Section shall be confidential and shall be held in closed session,
without admission of any persons other than the interested parties and
witnesses. All papers, records, petitions, or files pertaining to proceedings,
except the final order of adoption, shall be maintained by the Tribal
Court in locked files and shall not be released to anyone, except pursuant
to Tribal Court order or consent of the adoptee executed after the adoptee
attains the age of eighteen (18).
30.712 Dismissal After Death; Exception.
In the
event of the death of the petitioner prior to adoption, the petition
shall be dismissed, except if there are two petitioners, the proceeding
shall continue as the petition of the surviving petitioner unless withdrawn
by the survivor.
30.713 Irregularities; Curative Period.
After one
year from the date an adoption decree is entered, any irregularity in
the proceeding shall be deemed cured and the validity of the decree
shall not thereafter be subject to attack on any such ground in any
collateral or direct proceeding.
SUBCHAPTER VIII: POWER OF ATTORNEY AND GUARDIANSHIP
30.801 Power of Attorney.
A parent,
guardian, or custodian, including Anishnabek Community and Family Services,
by a properly executed power of attorney, may delegate to another person,
powers of a parent regarding the care, custody and property of a child
child. Said powers include but are not limited to the following: the
consent to admission to a hospital or school, consent to secure routine
dental care, non-surgical medical care and emergency dental, medical
or surgical treatment. The delegation does not include power to consent
to marriage, non-emergency elective surgery or adoption. The delegation
shall be valid for six (6) months from the date of execution and may
be revoked in writing at anytime by the person or agency delegating
the power. A person acting under a power of attorney may be referred
to as an “attorney in fact,” “agent” or “power
of attorney.” The delegation is renewable upon the re-execution
of the document.
30.802 Limited Guardianship.
The Tribal
Court may appoint a temporary guardian under such terms and conditions
as the Tribal Court sets forth in a written order. A temporary guardianship
may be terminated if the Tribal Court determines that it is in the best
interests of the child to change custody from the temporary guardian
to a new guardian or to return the child to the parent, guardian, or
custodian. The parent and child’s extended family shall be granted
liberal visitation rights unless deemed inappropriate by the Tribal
Court. A temporary guardianship shall be established by parental consent
only, and shall be revocable by the Tribal Court upon parental request.
30.803 Full Guardianship.
The Tribal
Court, when it appears necessary or convenient, may appoint guardians
for persons under the Tribal Court’s jurisdiction. Unless otherwise
specified by the Tribal Court, a guardian appointed shall be responsible
for the care, custody and education of the child until such child arrives
at the age of eighteen (18) years, dies, is emancipated by the Tribal
Court, or until the guardian is legally discharged.
(1) Grounds:
The Tribal Court may appoint a guardian for a child if either of the
following circumstances exist:
(a)
Parental rights of both parents or of the surviving parent, have
been terminated or suspended by prior Tribal Court order, by judgment
of divorce or separate maintenance, by death, by judicial determination
of mental incompetence, by disappearance, abandonment, or by confinement
in a place of detention; or
(b)
The appointment is necessary for the immediate physical well being
of the child.
(2) Who
May File: Any person, including Anishnabek Community and Family Services
may file a petition for guardianship. The petition shall be initiated
either by the proposed guardian or by the child if at least fourteen
(14) years of age.
(3) Parental
appointment of guardian for child: The parent of an unmarried child
may appoint a guardian for the child by will or by another writing
signed by the parent and attested by at least two (2) witnesses if
both parents are dead or have been adjudged to be legally incapacitated
or the surviving parent has no parental rights or has been adjudged
to be legally incapacitated. A parental appointment becomes effective
when the guardian’s acceptance is filed in the Tribal Court in
which a nominating instrument is probated or, in the Tribal Court
at the place where the child resides or is present. If both parents
are dead, an effective appointment by the parent who died later has
priority.
(4) Upon
acceptance of appointment, the guardian shall give written notice
of acceptance to the child and to the person having the child’s
care or the child’s nearest adult relative.
(5) Objection
by child of fourteen (14) years or older to parental appointment:
A child fourteen (14) years of age or older who is the subject of
a parental appointment may prevent an appointment or cause it to terminate
by filing with the Tribal Court in which the nominating instrument
is filed a written objection to the appointment before it is accepted
or within twenty-eight (28) days after its acceptance. An objection
may be withdrawn. An objection does not preclude appointment of the
parental nominee or another suitable person by the Tribal Court in
a proper proceeding.
(6) Tribal
Court appointment of guardian of child and priority of child’s
nominee. The Tribal Court may appoint as guardian a person whose appointment
serves the child’s welfare, including a professional guardian.
If the child is fourteen (14) years of age or older, the Tribal Court
shall appoint a person nominated by the child, unless the Tribal Court
finds the appointment contrary to the child’s welfare.
(7) Notice:
Before appointing a guardian, the Tribal Court must give reasonable
notice to all interested parties, including but not limited to, custodians,
agencies and person having the care of the child, to the child, and
to other relatives of the child as the Tribal Court may deem proper.
(8) Contents
of Petition: The petition for guardianship shall include the following
to the best of the petitioner’s knowledge, information and belief:
(a)
The full name, sex, date and place of birth, residence and tribal
affiliation of the proposed ward.
(b)
The full name, address, tribal affiliation, relationship, if any,
to the child, and interest in the proceeding of the petitioner.
(c)
The names and addresses of the child’s parents, if living,
and of other persons known to have an interest in the petition for
appointment of guardian; the name and date of death of the child’s
deceased parent or parents, if appropriate.
(d)
The basis for the Tribal Court’s jurisdiction.
(e)
The name and address of the person or agency having legal or temporary
custody of the proposed ward.
(f)
A statement of the reason that the appointment of a guardian is
sought and whom the petitioner recommends to have appointed as guardian.
(g)
A full description and statement of value of the child’s assets
and liabilities with an estimate of the value of any property owned,
possessed, or in which the proposed ward has an interest, including
any income and accounts receivable to which the proposed ward is
entitled.
(h)
Tribal identification verification.
(10)
Certified Petition: All petitions must be dated, signed, and certified
by the petitioner and notarized or witnessed by a clerk of the Tribal
Court. It is not necessary to have the prosecutor sign a petition
for guardianship.
30.804 Powers and Duties of Guardian.
(1) To
the extent that it is not inconsistent with the terms of any order
of the Tribal Court, a guardian has the following powers and duties:
(a)
The guardian is entitled to custody of the ward and shall make provisions
for the ward’s care, comfort, and maintenance, and shall, as
appropriate to the ward’s needs, arrange for the ward’s
training, education, employment, and rehabilitation. The guardian
shall take reasonable care of the ward’s clothing, furniture,
vehicles, and other personal effects that are with the ward.
(b)
In arranging for a place of abode, the guardian shall give preference
to places within the Tribal Lands over places not on the Tribal
Lands, if both on Tribal Lands and off Tribal Lands places are substantially
equivalent.
(c)
The guardian shall have authority to consent to any medical, legal,
psychological, or other professional care, counsel, treatment, or
service for the ward. The guardian may give any other consent or
approval in the ward’s best interest. The guardian may petition
the Tribal Court for approval of the consent or approval.
(d)
By accepting a parental or Tribal Court appointment as guardian,
a guardian submits personally to the Tribal Court’s jurisdiction
in a proceeding relating to the guardianship that may be instituted
by an interested person. The petitioner shall cause notice of a
proceeding to be delivered to the guardian or mailed to the guardian
by first-class mail at the guardian’s address listed in the
Tribal Court records and to the address then known to the petitioner.
Letters of guardianship must indicate whether the guardian was appointed
by Tribal Court order or parental nomination.
30.805 Reimbursement.
The guardian
is entitled to be reimbursed out of the ward’s estate for reasonable
and proper expenditures incurred in the performance of his/her duties.
The Tribal Court may order monthly reimbursement payments to the guardian
upon request, subject to the availability of funds.
30.806 Conservatorship.
The Tribal
Court may upon the filing of a petition similar to a petition for guardianship,
appoint a conservator for a child, if in the Tribal Court’s opinion,
a guardianship is not necessary. A conservator shall not have authority
over the person but shall be responsible for marshaling and preserving
the assets of the child and paying for the legitimate expenses incurred
in the care and maintenance of the child, subject to the availability
of funds.
30.807 Reports.
All limited
guardians, guardians, and conservators shall file annual reports with
the Tribal Court providing an update on the condition of the ward and
accounting for funds collected and funds expended on behalf of the ward.
The reports shall be available for review by interested parties.
30.808 Annual Review Hearings.
Annual
review hearings shall be scheduled in conjunction with the filing of
annual reports by limited guardians, guardians and conservators. Any
interested party may request additional hearings.
30.809 Resignation.
Any limited
guardian, guardian, or conservator who wishes to resign, may petition
the Tribal Court setting forth the reasons for the request. The Tribal
Court shall review a final accounting prepared by the limited guardian,
guardian, or conservator. If the Tribal Court is satisfied, it may accept
the resignation; discharge the limited guardian, guardian, or conservator.
The limited guardian, guardian, or conservator remains liable for all
matters occurring from the time of appointment to the time of discharge.
30.810 Appointment of Successors.
Upon the
removal, death, or resignation of a limited guardian, guardian, or conservator,
the Tribal Court shall appoint a successor following the same criteria
provided for in the original appointment.
30.811 Fiduciary Duty.
All persons
acting under a power of attorney, limited guardians, guardians, conservators
and any person or agency appointed to act on behalf of a child under
this Code acts in a fiduciary capacity. As a fiduciary, one owes a duty
to act in the best interest of the child, exercising sound judgment
and avoiding conflicts of interest. Any person acting under a power
of attorney, limited guardian, guardian, or conservator, breaching his/her
fiduciary duty will be liable for any damages resulting from such breach.
SUBCHAPTER IX: EMANCIPATION
30.901 Purpose.
A child
over the age of 16 years may petition the Tribal Court for emancipation.
The Tribal Court shall grant such status when the child proves to the
Tribal Court that the child is capable of functioning as an independent
and responsible member of the community.
30.902 Petition for Emancipation.
(1) A
child seeking emancipation shall file a petition for emancipation
in Tribal Court. The petition shall be signed by the Tribal Prosecuting
Attorney and verified by the child, and shall include all of the following
information:
(a)
The child’s full name and birth date, and the county and state
where the child was born.
(b)
A certified copy of the child’s birth certificate.
(c)
The name and last known address of the child’s parents, guardian,
or custodian.
(d)
The child’s present address, and length of residency at that
address.
(e)
A declaration by the child indicating that he or she has demonstrated
the ability to manage his or her financial affairs. The child may
include any information he or she considers necessary to support
he declaration.
(f)
A declaration by the child indicating that he or she has the ability
to manage his or her personal and social affairs. The child may
include in this section any information he or she considers necessary
to support the declaration.
(g)
Tribal identification verification.
(2) The
petition shall include an affidavit by any of the following individuals
declaring that the individual has personal knowledge of the child's
circumstances and believes that under those circumstances emancipation
is in the best interests of the child:
(a)
Physician
(b)
Nurse
(c)
Member of the clergy
(d)
Psychologist
(e)
Family Therapist
(f)
Social worker
(g)
Certified social worker
(h)
Social work technician
(i)
School administrator
(j)
School counselor
(k)
Teacher
(l)
Law enforcement officer
(m)
Duly regulated child care provider
(3) A
copy of the petition and a summons to appear at the hearing shall
be served on the child’s parents and guardian. A notice of hearing
shall be sent to the individual who provided the affidavit.
30.903 Powers of the Tribal Court.
(1) After
the petition is filed, the Tribal Court may do one (1) or more of
the following:
(a)
Assign an employee of the Tribal Court to investigate the allegations
of the petition and to file a report containing the results of the
investigation with the Tribal Court.
(b)
Appoint legal counsel for the child.
(c)
Appoint legal counsel for the child’s parents or guardian if
they are indigent and if they oppose the petition
(d)
Dismiss the petition if the child’s custodial parent does not
consent and is providing support.
30.904 Emancipation Hearing.
(1) The
hearing shall be before a judge sitting without a jury.
(2) The
Tribal Court may issue an emancipation order if it determines that
emancipation is in the best interest of the child and the child establishes
all of the following:
(a)That
the child’s parent or guardian does not object to the petition;
or if a parent or guardian objects to the petition, that the objecting
parent or guardian is not providing the child with support.
(b)That
the child is at least Sixteen (16) years of age.
(c)That
the child is a member of the Tribe.
(d)That
the child has demonstrated the ability to manage his or her financial
affairs, including proof of employment or other means of support.
“Other means of support” does not include general assistance
or aid to families with dependent children administered under the
social welfare act, Act No. 280 of the Public Acts of 1939, being
§400.1 to §400.121 of the Michigan Compiled Laws as amended.
(e)
That the child has the ability to manage his or her personal and
social affairs, including, but not limited to, proof of housing.
(f)That
the child understands his or her rights and responsibilities under
this act as an emancipated child.
(3) A
child who petitions the Tribal Court for emancipation shall have the
burden of showing by clear and convincing evidence that emancipation
should be ordered.
(4)If
the Tribal Court issues an emancipation order, the Tribal Court shall
retain a copy of the order until the emancipated child becomes twenty-one
(21) years of age.
(5) An
emancipation obtained by fraud is voidable. Voiding such an order
does not affect an obligation, responsibility, right, or interests
that arouse during the period of time the order was in effect.
(6) The
child or a parent or guardian of the child may file an appeal from
the Tribal Court’s grant or denial of an emancipation petition.
The appeal shall be filed in the Tribal Court of Appeals.
SUBCHAPTER X: ADDITIONAL MATTERS
30.1001 Authorization of Medical Treatment.
(1) At
any time, regardless of whether a child is under the authority of
the Tribal Court, the Tribal Court may authorize medical or surgical
care for a child when:
(a)
A parent, legal guardian or custodian is not immediately available
and cannot be found after reasonable effort in the circumstances
of the case.
(b)
A physician informs the Tribal Court orally or in writing that in
his professional opinion, the life of the child would be greatly
endangered without certain treatment and the parent, guardian or
custodian refuses or fails to consent. If time allows in a situation
of this type, the Tribal Court shall cause every effort to be made
to grant the parent, guardian or custodian an immediate informal
hearing, but his hearing shall not be allowed to further jeopardize
the child's life or health.
(2) In
making its order, the Tribal Court shall give due consideration to
any treatment being given the child by prayer through spiritual means
alone or through other methods approved by Tribal customs or traditions
or religions, if the child or his parent, guardian or legal custodian
are adherents of an established religious denomination that relies
on this form of treatment in lieu of medical treatment, or practices
the Tribal customs, traditions or religion which is relied upon for
such treatment of the child.
(3) After
entering any authorization under this section, the Tribal Court shall
relay the circumstances, finding and authorization to be given to
the appropriate physician, hospital or both.
(4) Oral
authorization by the Tribal Court is sufficient for care or treatment
to be given and shall be accepted by any physician or hospital. No
physician or hospital nor any nurse, technician or other person under
the direction of such physician or hospital shall be subject to criminal
or civil liability in the Tribal Court for performance of care or
treatment in reliance on the Tribal Court's authorization, and any
function performed thereunder shall be regarded as if it were performed
with the child's and the parent's authorization.
30.1002 Contempt of Tribal Court.
(1) Any
willful disobedience or interference with any order of the Tribal
Court constitutes contempt of court.
(2) The
Tribal Court may punish an act of contempt of court in accordance
with the Tribal Code Chapters 70, 71 and 80.
30.1003 Tribal Court Appeal.
Any party
to a Tribal Court hearing may appeal a final Tribal Court order pursuant
to Chapter 82 of the Tribal Code.
30.1004 Rehearings.
(1) Time
and Grounds. A party may seek a rehearing or new trial by filing a
written motion immediately after a hearing on record without notice
or written argument stating the basis for the relief sought. The Tribal
Court may entertain an untimely motion for good cause shown. A motion
will not be considered unless it presents a matter not previously
presented to the Tribal Court, or presented but not previously considered
by the Tribal Court, which if true, would cause the Tribal Court to
reconsider the matter.
(2) Notice.
All parties must be given notice of the motion for rehearing or new
trial in accordance with §30.414.
(3) Response
of Parties. Any response by parties must be in writing, filed with
the Tribal Court, and served on the opposing parties within five (5)
days after receipt of notice of the motion.
(4) Procedure.
The judge may affirm, modify, or vacate the decision previously made,
in whole or in part, on the basis of the record, the memoranda prepared,
or a hearing of the motion, whichever the Tribal Court in its discretion
finds appropriate.
(5) Hearings.
The Tribal Court need not hold a hearing before ruling on a motion
for rehearing or new trial. Any hearing conducted shall be in accordance
with the rules for disposition hearings. The Tribal Court shall state
the reason for its decision on the motion on the record or in writing.
30.1005 Effect of Proceedings.
(1) An
adjudication under this Chapter shall not be considered to be a conviction
of a crime.
(2) Hearings
pursuant to this Chapter are closed. All records shall be sealed.
Upon motion and for good cause the Tribal Court may open child welfare
records for use in other proceedings.
SUBCHAPTER XI: RECORDS
30.1101 Records.
(1) A
record of all hearings held under this Chapter shall be made and preserved
by stenographic, mechanical or electronic recording.
(2) The
official Tribal Court file for a proceeding shall include complaints,
petitions, motions, memoranda, briefs, reports, findings of the Tribal
Court, Tribal Court orders and other reports and paper filed with
the Tribal Court.
(3) The
official Tribal Court files shall be open to inspection by the child,
the child's parent or guardian, their counsel and officials of the
Tribal Court.
(4) Adoption
records shall be sealed upon final order by the Tribal Court and only
opened pursuant to Chapter 35 of the Tribal Code.
30.1102 Expungement.
(1) When
a child who has been the subject of a proceeding before the Tribal
Court attains his eighteenth (18th) birthday, the chief judge shall
order the clerk of the Tribal Court to destroy the Tribal Court records.
(2) As
used in this section, "expungement" means the physical destruction
of files and records.
SUBCHAPTER XII: COMMITTEES AND WORKERS
30.1201 Child Welfare Committee.
There is
hereby established a Sault Ste. Marie Tribe of Chippewa Indians Child
Welfare Committee (hereinafter called the Committee) consisting of seven
(7) persons appointed by the Tribal Chairman with the advice and consent
of the Tribal Board of Directors.
30.1202 Purpose of the Child Welfare Committee.
Children
are the Tribe’s most vital and cherished resource. The Tribe’s
future depends on the health and well-being of its children. Children
have a sacred right to receive the care and guidance necessary for their
spiritual, emotional, mental and physical development. The purpose of
the Child Welfare Committee created under this code is to protect and
promote the welfare of Tribal children and families by fully exercising
the Tribe’s rights and responsibilities under the Indian Child
Welfare Act of 1978 and Tribal Law.
30.1203 Membership and Terms.
(1) Members
of the Committee shall hold office for staggered terms of four (4)
years.
(2) Members
of the Committee shall hold office until their respective successors
have been appointed.
(3) Renewal
of past membership are nominated by the Committee and reaffirmed by
the Board of Directors.
30.1204 Meetings.
(1) The
Committee shall hold at least one meeting each month and such additional
meetings as necessary.
(2) Any
member of the Committee who has (3) consecutive unexcused absences
shall forfeit membership with the Committee.
(3) A
quorum shall consist of not fewer than three (3) members of the Committee.
30.1205 Officers.
(1) The
Committee shall designate one member of the Committee to be its Chairperson.
(2) The
Committee shall designate one member of the Committee to be its Secretary.
30.1206 Duties of the Officers.
(1) The
Committee Chairman shall preside over all meetings of the Child Welfare
Committee.
(2) The
Committee Chairman shall call all meetings.
(3) The
Committee Secretary shall keep a complete and accurate record of all
meetings.
30.1207 Duties of the Child Welfare Committee.
The Committee
shall have the responsibilities of:
(1) Monitor
placement of children in all child custody proceedings.
(2) Make
recommendations to the Tribal Court concerning adoptions, guardianship,
or termination of parental rights, or regarding the appropriate disposition
of any child-in-need-of-care.
(3) Establish
Tribal policies and priorities regarding implementation of the Indian
Child Welfare Act, and create exceptions to such policies.
(4) Make
recommendations regarding intervention in state court proceedings
and transfers to Tribal Court.
(5) Engage
in such further activities as to protect and improve the welfare of
minor members of the Tribe.
(6) Testify,
when necessary, regarding the Committee recommendations.
30.1208 Voting.
(1) Actions
of the Child Welfare Committee shall be decided by a majority vote
of those present at the meeting. The chairperson shall vote to break
a tie vote of the committee.
(2) A
quorum shall consist of three (3) members including the chairperson.
Any action by less than a quorum must be ratified by nonattending
members before such actions shall become official. Ratification may
be by telephone or personal contact.
30.1209 Committee Members are not Investigators.
Child Welfare
Committee members shall not initiate on their own, the gathering of
information regarding the matter under review. All members shall have
access to the same information. If Child Welfare Committee members are
contacted outside of a review by an interested party, he/she shall refer
the party to the caseworker, social worker, client advocate, or foster
care program office as appropriate. The Committee, however, may request
that further information be provided or that further investigation be
conducted by the social or other appropriate authority.
30.1210 Conflicts of Interest.
(1) Child
Welfare Committee members who are foster parents or parent and child
advocates may not participate as committee members in the review of
children who are in their own care.
(2) A
Child Welfare Committee member may not participate in the discussion
and may not vote on actions involving the committee member’s
immediate family, including children, grandchildren, nieces, nephews,
and siblings.
30.1211 Confidentiality.
(1) Meetings
of the Child Welfare Committee shall not be open to the public, except
for person authorized to attend by the Child Welfare Committee.
(2) Confidentiality
of case information and other Child Welfare Committee records shall
be maintained. Child Welfare Committee members are subject to the
same standards of confidentiality as other Tribal Court personnel,
Anishnabek Community and Family Service workers and other professionals
working in the foster care and child protection system.
(3) Case
materials and all other Child Welfare Committee records shall be kept
in a secure area. The Committee Chairperson shall collect case plan
packets at the conclusion of the Child Welfare Committee meetings
so that no reports leave the meeting and all written reports are maintained
in confidence. Written material may be provided to committee members
in advance of meetings, however.
30.1212 Child Protection Team.
The Child
Protection Team may include, in appropriate cases, the following individuals:
(a) Tribal
Prosecutor
(b) Protective
Services Workers
(c) Police
Investigators
(d) Medical
Professionals
(e) Mental
Health Professionals
(f) School
Personnel
(g) Victim
Advocate
(h) Tribal
Court Probation Staff
30.1213 Purpose of the Child Protection Team.
The primary
purpose of the Child Protection Team is technical and advisory in nature
and is not intended to replace the authority and responsibility of the
Child Welfare Committee, individual agencies or the Tribal Court. It
is designated to promote cooperation, communication and consistency
among agencies. The Child Protection Team shall facilitate the decision
making process. Confidentially shall be maintained by all Child Protection
Team Members.
30.1214 Duties of the Child Protection Team.
(1) The
Child Protection Team may be assigned the following duties:
(a)
Maintain confidentiality of information.
(b)
Send local Child Protection Team data to area child protection teams
as needed.
(c)
Providing recommendations to various pertinent agencies concerning
services needed by families or individuals.
(2) Facilitating
Services: The Child Protection Team may also provide assistance by
facilitating the provision of services to families by:
(a)
Identifying available community resources, programs and services.
(b)
Providing a forum for debating what actions would best promote the
well-being of Indian children.
(c)
Responding to inquiries from the community, area child protection
teams and other individuals and groups.
(3) Technical
Assistance: The Child Protection Team may also provide technical assistance
to the Child Welfare Committee and Family Services Department in the
following areas:
(a)
Development of procedures to provide effective and efficient preventative,
protective and corrective child abuse and neglect services.
(b)
Information and technical recommendations to decision making agencies.
(c)
Educate communities about child abuse and neglect problems and possible
solutions.
(d)
Identify danger signs, which prompt intervention and/or preventative
actions.
(e)
Assist in the development and implementation of plans to promote
the long term will-being of child and their families.
(f)
Assist in the development and implementation of strategies by communities
to promote the dignity, self-worth, self-respect and self-sufficiency
of community members.
30.1215 Multidisciplinary Team.
The Multidisciplinary
Team shall, at a minimum, include:
(a) Tribal
Prosecutor
(b) Protective
Services Workers
(c) Appropriate
Law Enforcement Personnel
(d) Victim
Services Personnel.
30.1216 Purpose of the Multidisciplinary Team.
The Multidisciplinary
Team serves in cases involving allegations of physical and sexual abuse
of Indian children on Tribal Lands.
30.1217 Duties of the Multidisciplinary Team.
(1) The
Multidisciplinary Team shall be responsible for coordinating the investigation
and prosecution of cases involving allegations of physical and sexual
abuse of Native American children on Tribal Lands of the Sault Ste.
Marie Tribe of Chippewa Indians. A key responsibility of the Multidisciplinary
Team is to reduce the trauma to the child victim by coordinating the
provision of support, advocacy and other services needed by the child
victim.
(2) Adoption
of Tribal Specific Protocols: The Tribal Prosecutor, Child Welfare
Committee, and Tribal Court Personnel shall consult with other appropriate
Tribal, State, local and federal agencies to develop Tribal Specific
Protocols for adoption by the Sault Ste. Marie Tribe of Chippewa Indians.
30.1218 Court Appointed Special Advocate.
(1) Appointment:
At every stage of the proceedings conducted pursuant to this Chapter,
the Tribal Court may appoint an advocate for the child who may be
a lawyer or a Court Appointed Special Advocate (CASA).
(2) Qualification:
A person may serve as a CASA only if certified by the Court Appointed
Special Advocate Committee based upon criteria determined by the CASA
Committee.
(3) Duties:
The child's advocate shall perform the following duties:
(a)
Represent the best interests of the child.
(b)
Appear at all hearings to represent competently the interests of
the child in proceedings before the Tribal Court.
(c)
Ascertain the interests of the child, taking into consideration
the child's wishes according to the competence and maturity of the
child.
(d)
Provide a written report of findings and recommendations to the
Tribal Court at each hearing held before the Tribal Court.
(e)
Urge that specific and clear orders are entered for evaluation,
assessment, services and treatment for the child and his family.
(f)
Inform the Tribal Court if the services are not being made available
to the child and/or family, if the family fails to take advantage
of such service.
(g)
Identify the common interests among the parties and, to the extent
possible, act as mediator to promote a cooperative resolution of
the matter.
(h)
Consult with other professionals liberally in identifying the child's
interests, current and future placements, and necessary services.
(i)
Advocate for the interests of the child in mental health, educational,
juvenile justice, and other community systems when related to the
circumstances causing the child to come within the child-in-need-of-care
jurisdiction of the Tribal Court.
(j)
Attend training programs as prescribed by the CASA Committee.
30.1219 Caseworkers.
Caseworkers
employed by the Tribe, or authorized by agreement with the Tribe by
resolution of the Board of Directors, shall have the powers and duties
contained in this section or set forth elsewhere in this Chapter. These
powers include the following:
(1) Receive
from any source, oral or written, information regarding a child who
may be a child-in-need-of-care.
(2) Upon
receipt of any report or information under §30.405 within 24
hours initiate a prompt and thorough investigation which shall include
a determination of the nature, extent, and cause of any condition
which is contrary to the child's best interests and the name, age
and condition of other children in the home.
(3) In
conducting its investigation, the caseworker shall seek the assistance
of and cooperate with law enforcement officials within 24 hours after
becoming aware that one or more of the following conditions exist:
(a)
Abuse or neglect is the suspected cause of a child's death.
(b)
The child is the victim of suspected sexual abuse or sexual exploitation.
(c)
Abuse or neglect resulting in severe physical injury to the child
requires medical treatment or hospitalization. For purposes of this
Chapter, "severe physical injury" means brain damage,
skull or bone fracture, subdural hematoma, dislocation, sprains,
internal injuries, poisoning, burns, scalds, severe cuts, or any
other physical injury that serious impairs the health or physical
well-being of a child.
(d)
Law enforcement intervention is necessary for the protection of
the child, the caseworker or another person involved in the investigation.
(e)
The alleged perpetrator of the child's injury is not a person responsible
for the child's health or welfare.
(4) Take
a child into temporary custody if necessary pursuant to §30.402.
Law enforcement officials shall cooperate with social service personnel
to remove a child from the custody of his parents, guardian or custodian
when necessary.
(5) Evaluate
and assess the home environment of the child or children in the same
home and the risk to such children if they continue to be subjected
to the existing home environment, and all other facts or matters found
to be pertinent.
(6) Substantiate
whether there is a probable cause to believe that the child is a child-in-need-of-care
(7) Offer
to the family of any child found to be a child-in-need-of-care appropriate
services which may include, but shall not be restricted to, protective
services.
(8) Within
30 days after a referral of a potential child-in-need-of-care, submit
a written report of his investigation and evaluation which shall be
included in the files maintained by the Anishnabek Community and Family
Services Department and shall include a determination as to whether
the report was substantiated or unsubstantiated.
(9) Upon
completion of the investigation by the local law enforcement agency
or the caseworker, the law enforcement agency or caseworker may inform
the person who made the reports to the disposition of the report.
(10)
Upon receipt of a report which alleges a pregnant woman's abuse of
alcohol or a controlled substance, caseworker shall arrange an appropriate
assessment and offer services indicated under the circumstances. Services
offered may include, but are not limited to, a referral for chemical
dependency assessment, a referral for chemical dependency treatment
if recommended, and a referral for prenatal care. A caseworker may
also seek Tribal Court ordered services under this Chapter.
SUBCHAPTER XIII: FOSTER HOME STANDARDS
30.1301 Foster Home Certification.
The Division
Director of the Anishnabek Community and Family Services is authorized
to license foster homes and group homes for the care of children as
provided in this Subchapter.
30.1302 Foster Home Standards.
(1) A
home may be licensed as a foster home under this section if it is:
(a)
located on the Tribe's reservation or trust lands; or
(b)
an extended family placement for the child to be placed in it. An
extended family placement is a placement with an adult related to
the child as a grandparent, aunt or uncle, brother or sister, brother
in law or sister in law, niece or nephew, first or second cousin
or stepparent; or
(c)
a home located off the Tribe's reservation or trust lands.
(2) The
following standards shall be applicable to the foster home:
(a)
The home shall be so constructed, arranged and maintained so as
to provide adequately for the health and safety of occupants.
(b)
Water supply systems must meet the requirements for safe drinking
water. Sewage disposal systems shall be environmentally safe. An
inspection by Tribal environmental health personnel may be required.
(3) The
following standards shall be applicable to the foster family:
(a)
All members of the household must be in such physical and mental
health as will not affect adversely either the health of the child
or the quality and manner of his care.
(b)
Members of the foster family shall be of good character, habits
and reputation; relationships within the family shall be such that
a wholesome atmosphere for the child will be assured. All members
of the foster family shall be willing to accept the foster child
into the home as a member of the family group.
(c)
The persons in charge of the foster home shall be of suitable temperament
to care for children; shall understand the needs of children; shall
be capable of handing an emergency situation promptly and intelligently;
and shall be willing to cooperate fully with the children's own
parents and/or the supervising agency.
(d)
Infants and young children shall never be left alone without competent
supervision. Older foster children may be left based upon their
individual maturity and development skills.
(4) Waiver
of Standards. The Division Director of Anishnabek Community and Family
Services may waive a Foster Home Standard under this Subchapter.
SUBCHAPTER XIV: GROUP HOME STANDARDS
30.1401 Group Home Certification.
The Division
Director of Anishnabek Community and Family Services is authorized is
authorized to license group homes for the care of children as provided
in this Subchapter.
30.1402 Group Home Standards.
(1) A
home may be licensed as a group home if it is located on the Tribal
lands of the Sault Ste. Marie Tribe of Chippewa Indians.
(2) Employee
records shall be maintained for each employee and shall include all
of the following:
(a)
Name.
(b)
Verification of education where minimum education requirements are
specified by rule.
(c)
Work History.
(d)
Three references.
(e)
A record of any convictions other than minor traffic violations.
Where such references are not available or practical to obtain prior
to the employment date, the employee shall provide a certification
as to the existence of any record of convictions; provided, such
request for record clearances is made prior to the date of employment.
(f)
Written evaluations of the employees shall be performed on a regular
basis. The first evaluation shall be performed at the end of the
probationary period. Subsequent evaluations shall be performed on
a periodic basis but not less than annually.
(3) The
licensee shall have a sufficient number of administrative, supervisory,
social service, direct care and other staff to perform the prescribed
functions required by this Subchapter and to provide for the needs,
protection and supervision of residents.
(4) The
ratio formula for direct care workers shall correspond with the institution's
purpose and the needs of the residents and shall assure the continual
safety, protection and direct care and supervision of residents.
(5) The
licensee shall develop and adhere to a written staff-to-resident ratio
for direct care workers.
(6)The
licensee shall document that each employee and volunteer who has contact
with residents four or more hours per week for more than two consecutive
weeks is free from communicable tuberculosis
(7) A
person with ongoing duties shall be of good moral character, emotionally
stable, and of sufficient health, ability, experience and education
to perform the duties assigned.
(a)
The person shall provide certification as to the existence of a
criminal record which shall indicate specific convictions. This
record shall be indicative of a person of good moral character.
(b)
The person shall provide certification that they have not been found
in substantiation of child abuse or neglect.
(c)
Subs. (i) and (ii) shall be confirmed through independent verification.
(8) The
licensee shall provide an orientation program for new employees. The
orientation shall including the following:
(a)
The institution's purpose, policies, and procedures, including discipline,
crisis intervention techniques, and emergency and safety procedures.
(b)
The role of the staff members as related to service delivery and
protection of the child.
(9) The
following environmental safety standards shall apply to group homes:
(a)
Group Homes shall be inspected for health and safety issues at least
once per calendar year by a qualified agent independent of Group
Home staff.
(10)
An institution shall provide sufficient resident living space, office
space and equipment to assure delivery of licensed services.
(a)
Sleeping rooms shall provide adequate space for each resident.
(11)
An institution shall establish and follow written procedures for potential
emergencies and disasters, including fire, severe weather, and medical
emergencies and missing persons.
(12)
An institution shall assure resident and parent privacy and confidentiality
and shall protect residents from exploitation.
(13)
An institution shall establish and follow written policies and procedures
regarding discipline and behavior management. Upon request, these
shall be available to all residents, their families and referring
agencies. Staff shall receive a copy of these policies and procedures
and shall comply with them.
(14)
An institution shall establish and follow written health service policies
and procedures addressing all of the following:
(a)
Routine and emergency medical and dental care.
(b)
Health screening procedures.
(c)
Maintenance of health records.
(d)
Storage of medicines.
(e)
Dispensing medication.
(f)
Personnel authorized to dispense medications.
(15)
Any serious injury or illness requiring hospitalization of a resident
shall be reported to the parent and responsible referring agency as
soon as possible, but not more than 24 hours later. This rule does
not apply to emergency room treatment where the illness or injury
is threatened the resident is not hospitalized. In such cases, the
parent shall be notified, but not necessarily within 24 hours.
(16)
The death of a resident shall be reported immediately to the parents
or next of kin, the Division Director of Anishnabek Community and
Family Services, and referring agency.
(17)
The following treatment planning standards shall apply to group homes:
(a)
A child shall be admitted only after establishing that the institution
is an appropriate placement to meet the child's needs.
(b)
Upon admission, all of the following shall be in the resident's
case record:
(i)
Name, address, birth date, sex, race, height, weight, hair color,
eye color, identifying marks, religious preference and school
status.
(ii)
A brief description of the resident's preparation for placement
and general physical and emotion state at time of admission.
(iii)
Name, address, and marital status of parents and name and address
of legal guardian, if known.
(iv)
Date of admission and legal status.
(v)
Documentation of legal right to provide care.
(vi)
Authorization to provide medical, dental, and surgical care and
treatment.
(vii)
A brief description of the circumstances leading to the need for
care.
(c)
A case record shall be maintained on each resident.
(d)
Medical treatment and health services shall be provided as follows:
(i)
Medical treatment shall be under the supervision of a licensed
physician.
(ii)
An institution shall provide and document periodic physical examination
for each resident as follows, unless greater frequency is medically
indicated:
(iii)
Sufficient health history information shall be documented for
each resident to assure proper medical care.
(iv)
A resident shall have current immunizations as required by the
Department of Public Health and/or the Michigan Department of
Education.
(v)
A licensee shall arrange for the provision of and shall document
dental examination and treatment of each resident. A dental examination
within 12 months prior to admission shall be documented or there
shall be an examination not later than three months following
admission. Reexamination shall be provided at least annually.
(18)
An initial service plan shall be completed.
(19)
An updated service plan shall be completed and recorded for each resident.
(20)
When a resident is discharged from institutional care a Group Home
Care Termination Summary will be completed.
30.1403 Waiver of Standards.
The Division
Director of the Anishnabek Community and Family Services may waive a
standard under this Subchapter.
SUBCHAPTER XV: CHILD CARE LICENSING
30.1501 Center Licensing.
The Division
Director of Anishnabek Community and Family Services is authorized to
license Family and Group Child Care providers as provided in this Subchapter.
30.1502 Center Staff.
A center
must keep on file verification of the educational qualifications and
current job descriptions for all center staff.
30.1503 Center Staff Qualifications.
All center
staff must complete a background criminal history check per Sault Ste.
Marie Tribe of Chippewa Indians Background Check Policy.
30.1504 Number of Staff.
(1) A
center must provide appropriate care and supervision of children at
all times by meeting or exceeding the standards in this Subchapter.
(2) The
ratio of center staff to children present at one time in the center
and during outdoor activities must be based upon the following provisions:
(a)
For children one month to one year of age, there must be one (1)
center staff per four (4) children.
(b)
For children one to three years of age, there must be one (1) center
staff per four (4) children.
(c)
For children three to six years of age, there must be one (1) center
staff per seven (7) children.
(d)
For children seven years to twelve years, there must be one (1)
center staff per ten (10) children.
30.1505 Program Requirements.
(1) A
center must provide a program of daily activities and relationships
that promote opportunities for emotional, social, educational and
cultural developmental growth of each child.
(2) A
center must permit parents to visit the program anytime during operating
hours.
(3) A
center must provide each child in attendance for five (5) or more
hours a day an opportunity to rest.
(4) A
child must not be in care for more than ten (10) hours a day.
30.1506 Discipline.
(1)
Center staff must use positive methods of discipline which encourage
self-control, selfdirection, self-esteem and cooperation.
(2) Staff
must be prohibited from using the following as a means of punishment:
(a)
Hitting, spanking, shaking, biting, pinching or inflicting any form
of corporal punishment.
(b)
Restricting a child's movement by binding or tying him or her.
(c)
Inflicting mental or emotional punishment, such as humiliating,
shaming or threatening a child.
(d)
Depriving a child of meals, snacks, rest or necessary toilet use.
(e)
Confining a child in an enclosed area, such as a closet, locked
room, box or similar cubicle.
(3) Non
severe discipline or restraint may be used when necessary, based on
a child's development, to prevent a child from harming himself or
herself or to prevent a child from harming other persons or property,
excluding those forms of punishment prohibited by subrule (2) of this
rule.
(4) A
center must have written policy regarding the discipline of children.
This policy must be furnished to parents and staff.
30.1507 Equipment Requirements.
(1) A
center must provide an adequate and varied supply of age appropriate
play equipment, materials and furniture that are safe, clean and in
good repair.
(2) A
center must provide each child enrolled five (5) or more hours a day
with an age appropriate cot or crib to rest each day.
(3) A
center must allow floor space for the safe positioning of cots or
cribs.
(4) Equipment
and materials must provide for:
(a)
Large and small muscle activity.
(b)
Sensory exploration.
(c)
Social interaction and dramatic play.
(d)
Discovery and exploration, including structuring and restructuring.
(e)
Creative experiences through cultural art, music and literature.
30.1508 Food Service and Nutrition.
A center
will follow recommendations of the Michigan Child and Adult Food Program.
30.1509 Child Information Records.
(1) A
center must keep accurate updated child information forms on each
child enrolled in the center.
(2) A
center must report an accident or illness, occurring while a child
is in care, which results in hospitalization or death. This report
must be submitted to the Division Director of Anishnabek Community
and Family Services within twenty-four (24) hours.
(3) A
center must have an updated immunization record on file or a waiver
signed by the parent(s) denying or refusing due to medical or religious
beliefs.
(4) A
center must obtain and keep on file a signed statement of the child’s
health based on an evaluation by a licensed physician or his or her
designee and every two (2) years there after. Restrictions, if any,
on activities shall be stated by a licensed physician or his or her
designee.
30.1510 Health of Personnel Requirements.
(1) A
center shall have on file a “Medical Clearance Form” completed
by a licensed physician or his or her designee for each staff member
every two years.
(2) A
center must have on file evidence that each staff or student is free
from communicable tuberculosis and verified every year thereafter.
30.1511 Administration of Medications.
(1)
When a center administers medication, the following provisions must
apply:
(a)
Medication must be given or applied only with prior written permission
from the parent. Prescription medication must have the pharmacy
label indicating the physician's name, child's name, instructions,
and name and strength of the medication and must be given in accordance
with those instructions.
(b)
Center staff must maintain a record as to the time and the amount
of any medication given or applied.
(c)
The medication must be in the original container, stored according
to the instructions and clearly labeled for the specific child.
Staff must keep the medication out of the reach of children, and
must return the medication to the parent or destroy when no longer
needed.
(d)
All staff must comply with the above regulations.
(2) Health
surveillance measures include the following:
(a)
A center is responsible for reporting to the parent observed changes
in the child's health or any accidents that may have happened to
the child.
(b)
A child too ill to remain in care must be placed in a separate area
where he or she may be cared for and supervised until her or she
can be taken home.
(c)
A child that has contracted a communicable disease must not return
to care until the child is no longer contagious as recommended by
the Center For Disease Control.
30.1512 Admission and Withdrawal Criteria; Schedule or Operation;
Fee Policy.
A center
must provide each parent with a Parent Handbook, which includes all
of the above mentioned information.
30.1513 Telephone Service.
A telephone
must be available and accessible in the building during the hours of
operation. Pay telephones are not considered as meeting this requirement.
Emergency telephone numbers, including fire, police, poison control
center and ambulance, must be posted.
30.1514 Indoor Activity Space.
(1) For
each child birth to two (2) years of age, a center must have a minimum
of fifty (5) square feet of indoor activity space for use by and accessible
to the child.
(2) For
each child two (2) to twelve (12 years of age, a center must provide
thirty-five (35) square feet of activity space for use by, and accessible
to, the child.
(3) The
following is excluded from child activity space.
(a)
Hallways.
(b)
Bathrooms.
(c)
Reception and office areas.
(d)
Kitchens.
(e)
Storage areas and cloakrooms.
(f)
Areas used exclusively for resting, sleeping or eating.
30.1515 Outdoor Play Area.
(1) A
center operating five or more continuous hours a day must have safe
fenced outdoor play area not less than fifty (50) square feet per
child.
(2) Age
appropriate play equipment must be provided.
30.1516 Sleeping Equipment; Seating for Staff.
(1) Children
less than twelve (12) months of age must sleep in cribs or beds with
side rails and firm mattresses. Children over twelve (12) months of
age must sleep in cribs or on cots provided by the center.
(2) Center
staff may allow infants under the age of twelve (12) months who have
fallen asleep in infant seats or swings, sufficient time to determine
sound sleep before moving to a crib.
(3) A
rocker or comfortable adult size must be provided for one-half (1/2)
the staff on duty in each room.
30.1517 Health and Safety Provisions.
(1) A
center will be inspected for health and safety issues once per calendar
year. The inspection will be completed by the Sault Ste. Marie Tribe
of Chippewa Indians (Sault Tribe) Safety Department.
(2) Findings
and recommendations will be implemented by the center.
(3) A
center will be inspected for environmental health provisions by the
Sault Tribe Environmental Health Inspector once a year.
(4) Findings
will be implemented by the center.
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