Approved Ordinances for the Te-Moak Tribe of Western Shoshone
Last amended: 2003
TITLE 5 - CHILDREN'S WELFARE ORDINANCE
See the enacting ordinance below.
CHAPTER 1 - PURPOSE OF THE ORDINANCE
Section 5-1-1. The Te-Moak Tribe of Western Shoshone, referred to
in this Ordinance as "the tribe," has determined that:
(1) Children are the tribe's most valuable resource, and the welfare of tribal children is a vital concern of the tribe;
(2) It is essential that: tribal resources, identity, and culture be preserved by providing for enhancement and strengthening of the family as the primary means of securing a vital tribal community ;
(3) The best interests of the tribe and its children are served when the children of the tribe receive the care and guidance necessary for their spiritual, emotional, mental, and physical development; all of which will prepare them to become contributing members of the tribe;
(4) When problems involving tribal children arise, the Jurisdictional Court with assistance of Social Services and the Indian Child Welfare program is best able to resolve the problems and provide tribal children with the care and guidance that is necessary for their well-being;
(5) The Jurisdictional Court, whenever practicable, is preferable to state court for consideration of matters involving tribal children;
(6) When problems involving tribal children arise and the Court must make a placement outside of the home, the best interests of the tribe and its children are served by providing for their care and placement in an environment which will ensure that tribal children receive the care and guidance necessary for their spiritual, emotional, mental, and physical development; and
(7) When problems involving tribal children arise, the best interests of the community are served if the Tribal Court has jurisdiction over all persons in the family or household who are a part of the problem(s).
CHAPTER 2 - DEFINITIONS
Section 5-2-1. For purposes of this Ordinance, the following definitions
shall apply:
Abandon - When a parent leaves a child, fails to communicate with or fails to support that child, and the parent does not indicate a willingness to assume parental responsibilities for a period of six (6) months or longer.
Abuse - (1) Any case in which -
(a) a child is dead or exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling, and
(b) such condition is not justifiably explained or may not be the product of an accidental occurrence; and
(2) Any case in which a child is subjected to sexual assault, sexual molestation, sexual exploitation, sexual contact, or prostitution;
Adult - A person eighteen (18) years of age or older.
Child Protective Services - That agency of the federal government, state, or of an Indian tribe that has the primary responsibility for child protection on any Indian reservation or within any community in Indian country;
Counsel - An attorney or a representative who, as an official of the court, provides legal assistance to any party during the course of any proceedings under this Ordinance.
Custodian - One who has physical custody of a minor and who is providing food, shelter, and supervision to that minor.
Delinquent Act - Any act or omission by a minor included in the following: Violation of the Te-Moak Tribe of Western Shoshone Ordinance; failure to follow the lawful commands of parent(s), guardian or custodian; or any act or omission causing harm or the probability of harm to themselves or others.
Detention - The placement of a minor in a physically restrictive facility.
Guardian - A person other than the minor's parent, who is legally responsible for that minor.
Juvenile Offender - A person who commits a delinquent act prior to his/her eighteenth (18th) birthday.
Least Restrictive Alternative - This disposition concept, when used in this Ordinance, directs the Court to select the least drastic method of achieving its goal, i.e., the restrictions placed on the child must be reasonably related to the Court's objectives, and must be the least restrictive method of achieving that objective. For example if a person is held in detention before trial to ensure the person will not attempt to escape the reach of the court, the only restraint on that person should be a restriction on freedom of movement. No other restriction, such as mail censorship or being placed in solitary confinement, is reasonably related to the stated purpose of pretrial detention.
Minor -
(1) A person under eighteen (18) years of age;
(2) A person eighteen (18) years of age or older concerning whom proceedings were commenced in Tribal Court prior to that person's eighteenth (18th) birthday; or
(3) A person eighteen (18) years of age or older who is under the continuing jurisdiction of the Tribal Court.
Minor-In-Need-of-Care - A minor who:
(1) Has no parent, guardian, or custodian available and willing to care for him/her;
(2) Has been the subject of, or is likely to suffer from, physical abuse;
(3) Has not been provided with the food, clothing, shelter, medical care, education, or supervision necessary for good health and well-being;
(4) Has been sexually abused;
(5) Has committed delinquent acts because of a lack of parental guidance, pressure, or approval; or
(6) Has been emotionally abused or neglected.
Neglect - Includes but is not limited to, negligent treatment or maltreatment of a child by a person, including a person responsible for the child's welfare, under circumstances which indicate that the child's health or welfare is harmed or threatened thereby;
Notice - The method by which the Court informs the parties, counsel, and others of the date, time, and place of proceedings to be conducted by the Court.
Parental Rights - Entitlement to the legal custody and control of a minor.
Petition - The instrument which commences proceedings in the Court.
Presenting Officer -
(1) Court appointed officer to carry out the duties and responsibilities set forth in this ordinance.
(2) Minimum qualifications shall be the same as the minimum qualifications for the official who functions as prosecutor in the Adult Division of the Court.
(3) He/she shall represent the Tribe in all proceedings under this ordinance.
Respondent - A minor in a juvenile offender or adoption proceeding; a parent or custodian in a minor-in-need-of-care termination proceeding.
Summons - The instrument with which the Court directs a party to appear before the Court.
Jurisdictional Court - The tribal court exercising jurisdiction under this Ordinance shall be known as the Court of Indian Offenses or' Children's Court.
Jurisdictional Court Judge - A judge of the tribal court system exercising jurisdiction under this Ordinance.
Tribal Land - All land within the exterior boundaries of:
(1) the Te-Moak Tribe of Western Shoshone which includes the communities of the South Fork Reservation, Battle Mountain Indian Colony, Wells Indian Colony, Ruby Valley Allotments, Elko Indian Colony and Odgers Ranch.
(2) land held in trust for the benefit of the tribe by the United States; and
(3) any land in which the tribe has a beneficial ownership interest.
CHAPTER 3 - JURISDICTION AND COURT AUTHORITY
Section 5-3-1. Statement of Jurisdiction.
The competent court system shall have jurisdiction over:
(1) Proceedings in which the minor is alleged to be a juvenile offender, if the minor is:(a) A member of, or eligible for membership in, the tribe;(2) Proceedings which involve a minor who is a member of, or eligible for membership in, the tribe; if the matter(s) arise:
(i) and the alleged offense occurred on tribal land; or unless and until the Court transfers jurisdiction to Adult Division of the Court;(b) Not eligible for membership in the tribe, but whose primary residence is on tribal land if the alleged offense occurred on tribal land.
(a) In the tribe's service area and the proceedings are minor-in-need-of-care proceedings;
(b) Anywhere in the United States; and the proceedings involve transfers to the tribe under the provisions of the Indian Child Welfare Act (ICWA), 25 USC Section 1901 et seq.;
(c) In the tribe's service area and the proceedings involve adoption; and
(d) In the tribe's service area and the proceedings involve voluntary relinquishment or involuntary termination of parental rights.
Section 5-3-2. Community Problem.
The jurisdiction of the tribal court system shall encompass that which is necessary to treat any problem involving tribal children as a community problem. The courts shall have the jurisdiction to treat a problem in its totality. The courts shall have jurisdiction over all members of the family or household who are a part of the problem, or who may be a part of the solution to the problem.
Section 5-3-3. Adjudication Classification.
No adjudication of the status of any child under the jurisdiction of the Court shall be deemed criminal, unless the Court refers the matter to the Adult Division of the Court.
Section 5-3-4. Closed Proceedings.
Juvenile proceedings shall be closed to the general public to protect the privacy interests of the parties. Disposition of any juvenile proceeding, and evidence presented at such proceedings, shall not be admissible as evidence against the child in any other proceeding heard by another division of the tribal court system, except when the evidence is discovered by independent means.
Section 5-3-5. Authority to Cooperate.
The Court is authorized to cooperate with any court or federal, state, tribal, public, or private agency; to participate in any diversion, rehabilitation, training programs, or other service programs; and to receive grants-in-aid to carry out the purposes of this Ordinance.
Section 5-3-6. Least Restrictive Alternative.
The least restrictive alternative applies to all actions taken by the Court under this Ordinance.
Section 5-3-7. Court Records.
(1) A record of all hearings under this Ordinance shall be made and preserved.
(2) All Court records shall be confidential, and shall only be open to inspection by the following:
(a) The minor;
(b) The minor's parent(s), guardian, or custodian;
(c) The presenting officer.
Section 5-3-8. Law Enforcement Records.
(1) Law enforcement records and files concerning a minor shall be kept separate from records and files of adults.
(2) All law enforcement records and files shall be confidential, and shall only be open to inspection by the following:
(a) The minor;
(b) The minor's parent(s), guardian, or custodian;
(c) The presenting officer.
Section 5-3-9. Expungement.
When a minor who has been the subject of any proceeding before the Court attains his/her eighteenth (18th) birthday, the Court shall seal both the court and law enforcement records relating to that minor.
Section 5-3-10. Contempt of Court.
(1) Willful disobedience of, or willful interference with, an order of the Court constitutes contempt of court.
(2) A minor may be punished for contempt of court with extension of probation, additional probation conditions, a fine not to exceed three hundred dollars ($300.00), a jail term not to exceed three (3) months or any combination thereof.
Section 5-3-11. Medical Examination.
If services are available through the Indian Health Service or public assistance, the Court may order a psychiatric or psychological examination of a minor who is alleged to be a juvenile offender if issues of competence to stand trial or insanity (i.e., responsibility) are raised by the defense, or for any other reason that the Court deems appropriate. Reports shall be available to defense and presenting officer.
Section 5-3-12. Fingerprints.
If latent fingerprints are found during the investigation of an offense and a law enforcement officer has reasonable grounds to believe that the fingerprints are those of a minor in custody, the officer may fingerprint that minor for the purpose of immediate comparison with the latent fingerprints; provided that the law enforcement officials have obtained the written approval of the Court prior to the taking of prints. Copies of the fingerprints shall be immediately destroyed if the comparison is negative or if a petition is not filed against the minor.
Section 5-3-13. Appeal.
(1) For purposes of appeal, a record of the proceedings shall be made available to the minor, the minor's parent(s), guardian, or custodian. Costs of obtaining this record shall be paid by the party seeking the appeal.
(2) Any party to a Court hearing may appeal a final order or disposition of a case by filing a written notice of appeal with the Court within thirty (30) days of the final order of disposition.
(3) No decree or disposition of a hearing shall be stayed by appeal.
(4) All appeals shall be conducted in accordance with applicable tribal ordinances and court rules.
CHAPTER 4 - PROCEDURAL RIGHTS; NOTICE REQUIREMENTS
Section 5-4-1. Notice.
(1) Notice of proceeding shall be given to:
(a) The minor;
(b) The minor's parent(s), guardian, guardian ad litem, custodian; and
(c) All Counsel of record.
(2) Notice shall be given when a time for the proceedings has been established; provided at least ten (10) days is given before any non-preliminary hearing except in cases of emergency; provided further that notice is given as soon as possible in the case of a preliminary hearing or in the event of an emergency.
(3) If the proceeding is an adjudicatory hearing (juvenile offender or minor-in-need-of-care) or termination hearing, notice shall be by summons as set forth in Section 5-4-2.
(4) The notice shall contain:
(a) The name of the court;
(b) The title of the proceedings;
(c) A brief statement of the substance of the allegations against the minor's parent(s), guardian, or custodian;
(d) The date, time, and place of the proceeding; and
(5) The notice shall be delivered by a tribal/BIA law enforcement officer or an appointee of the Court. Beyond the service area, notice may be provided through other law enforcement agencies, by certified mail, or in the manner and preference provided by Section 5-4-3 of this Ordinance for the service of summons.
Section 5-4-2. Summons.
(1) At least ten (10) days prior to an adjudicatory or termination hearing, the Court shall issue summons to:(a) The minor;
(b) The minor's parent(s), guardian, guardian ad litem, or custodian;
(c) Any person the Court believes necessary for proper adjudication of the matter(s) before the Court; and
(d) Any person the minor believes necessary for proper adjudication of the matter(s) before the Court; subject to the Court's discretion.
(2) The summons shall contain the name of the court and title of the Proceedings; and the date, time, and place of the hearing.
(3) A copy of the petition shall be attached to the summons.
(4) The summons shall be served in the following order of preference:
(a) Hand delivery to the person, by a tribal law enforcement officer or appointee of the Court;
(b) Certified mail, if the summons cannot be served upon the person; or
(c) In a manner most likely to provide actual notice to the party:
(i) Service by legal notice in a publication or mailing of the tribe circulated to the tribal membership; and by posting the legal notice at the tribal center; or
(ii) Service by legal notice in a daily newspaper in the county of respondent's last known residence for a three (3) day period, the last day of which is at least ten (10) days prior to the hearing; and by posting the legal notice at the tribal center.
(5) A person who has been issued a summons, who has received notice of hearing, and who fails to appear at the hearing shall be held in contempt of court, unless good cause is shown why that person did not appear.
Section 5-4-3. Rights of Parties.
(1) Right to Counsel:
(a) The judge shall inform the minor and the minor 5 parent(s), guardian, guardian ad litem, or custodian of their right to retain counsel by reading the following statement: "You have the right to have a lawyer or other person represent you at this hearing. However, you or your family must pay any fees for such representation.
(2) The minor need not be a witness against, nor otherwise incriminate, him/herself.
(3) A parent, guardian, or custodian may not be compelled to give testimony against him/herself.
(4) The Court shall give the minor; the minor's counsel; the minor's parent(s), guardian, guardian ad litem, or custodian; and their respective counsels, the opportunity to introduce evidence, to be heard on their own behalf, and to examine all witnesses.
CHAPTER 5 - MINOR-IN-NEED-OF-CARE
Section 5-5-1. Complaint/Affidavit.
A complaint/affidavit may be filed with the court by any person who has knowledge of the facts alleged. The complaint shall be signed by the person who files the complaint/affidavit. The complaint/affidavit shall contain:
(1) Citation to the specific provision(s) of this Ordinance which gives the Court jurisdiction over the proceedings;
(2) Name, age and address of the minor's parent(s), guardian, or custodian;
(3) If the minor is in shelter care, the place of shelter care and the time she/he was taken into custody;
(4) Citation to the specific provision(s) of this Ordinance which gives the Court jurisdiction of the proceedings; and
(5) A statement of the facts which brings the minor within the jurisdiction of this Court.
Section 5-5-2. Petition.
Proceedings under this Ordinance shall commence upon the filing of a petition by the presenting officer on behalf of the tribe. The petition shall include:
(1) The name, birth date, and address of the minor;
(2) The names and addresses of the minor's parent(s), guardian, or custodian;
(3) If the minor is in shelter care, the place of shelter care and the time she/he was taken into custody;
(4) Citation to the specific provision(s) of this Ordinance which gives the Court jurisdiction of the proceedings; and
(5) A statement ofthe facts which brings the minor within the jurisdiction of this Court.
Section 5-5-3. Protective Warrant.
The Court may enter an order called a protective warrant, directing that the minor be taken into protective custody, if the Court finds probable cause to believe the minor is a minor-in-need-of-care.
Section 5-5-4. Protective Custody.
A minor may be taken into protective custody by a law enforcement officer, the tribe's Indian Child Welfare worker, or tribe's Social Services worker if:
(1) The person has reasonable grounds to believe the minor is a minor-in-need-of-care, the minor is in immediate danger from his/her surroundings, and removal therefrom is necessary; or
(2) A protective warrant pursuant to Section 5-5-3 of this Ordinance has been issued for the minor.
Section 5-5-5. Protective Custody Procedure.
A law enforcement officer or other person who takes a minor into protective custody, pursuant to Article 5, Section 4 of this Ordinance, shall proceed as follows:
(1) Release the minor to his/her parent(s), guardian, or custodian and give such counsel and guidance as may be appropriate, unless protective custody is necessary as set forth in Article 5, Section 3 or Section 4 of this Ordinance;
(2) If the minor is not released, immediate and recurring efforts shall be made to notify the minor's parent(s), guardian, or custodian to inform them that the minor has been taken into custody and inform them of their right to be present with the minor until a determination of the need for protective custody is made;
(3) If the minor is not released, the minor shall be taken, as soon as is practicable, to the tribe's Social Services worker or Indian Child Welfare worker.
Section 5-5-6. Protective Custody Alternatives.
(1) Pending a court hearing, a minor alleged to be minor-in-need- of-care may be sheltered, according to the following order of preference, in:(a) A licensed foster care home that has been approved by the tribe's Social Services;(2) A minor alleged to be a minor-in-need-of-care may not be detained in a jail or other facility used for the detention of adults. If the minor is detained in a facility used for the detention of alleged juvenile offenders, she/he must be detained in a room separate from alleged juvenile offenders.(b) A licensed foster care facility that has been approved by the tribe's Social Services.
(c) A licensed private family home that has been approved by the tribe's Social Services; or
(d) A licensed shelter care home or facility that has been approved by the tribe's Social Services.
(e) Extended family approved by the tribe's Social Services with the provision the parent can't come and take the child until ordered by court.
Section 5-5-7. Preliminary Hearing.
(1) If a minor is placed in protective custody, the Court shall conduct a preliminary hearing within forty-eight (48) hours for the purpose of determining:
(a) Whether probable cause exists to believe the minor is a minor-in-need-of-care; and
(b) Whether continued protective custody is necessary pending further proceedings.
(2) If a minor has been released to his/her parent(s), guardian, or custodian, the Court shall conduct a preliminary hearing within five (5) days after receipt of the complaint, for the sole purpose of determining whether probable cause exists to believe the minor is a minor-in-need-of-care.
(3) If the minor's Parent(s), guardian, or custodian is/are not present at the Preliminary hearing, the Court shall make an inquiry into what efforts have been made to notify and to obtain the Presence of the parent(s), guardian, or custodian. If it appears that further efforts are likely to produce the minor s Parent(s), guardian, or custodian, the Court shall recess for not more than twenty-four (24) hours and direct the presenting officer to make continued efforts to obtain the Presence of the minor's parent(s), guardian, or custodian. If it does not appear that further efforts are likely to produce appearance of the minor's Parent(s), guardian, or custodian, or if it appears that the parent(s), guardian, or custodian is/are unable or unwilling to provide effective support or guidance to the minor during the pendency of the minor-in-need-of-care Proceedings, the Court shall appoint a guardian ad litem to serve until final adjudication and disposition of the complaint.
(4) The Court shall hear testimony concerning:
(a) The circumstances that gave rise to the complaint or the taking of the minor into custody; and
(b) The need for protective custody.
(5) If the Court finds that probable cause exists to believe the minor is a minor-in-need-of-care, the minor shall be released to his/her Parents(s), guardian, or custodian and ordered to appear at the adjudicatory hearing on a date and at a time set by the court, unless:
(a) There is reasonable cause to believe that the minor will run away and/or be unavailable for further Proceedings; or
(b) The minor is taken into protective custody.
(6) The Court may release a minor to a relative or other responsible adult tribal member, if the parent(s), guardian, or custodian of the minor consents to the release. If the minor is ten (10) years of age or older, the minor and the minor's Parent(s), guardian, or custodian must consent to the release.
(7) Upon a finding that probable cause exists to believe that the minor is a minor-in-need-of-care and that there is a need for foster or shelter care the minor's foster or shelter care shall be continued. The Court shall consider the recommendation prepared by the child protective services worker of Social Services worker.
(8) If probable cause to believe the minor is a minor-in-need-of care is not found, the complaint shall be dismissed and the minor shall be released.
Section 5-5-8. Adjudicatory Hearing.
The Court shall conduct an adjudicatory hearing for the sole purpose of determining whether the minor is a minor-in-need-of-care. Such hearing shall be closed to the public.
(1) The Court shall take testimony and receive evidence concerning the circumstances which gave rise to the complaint.
(2) If the allegations of the petition are sustained by clear and convincing evidence, the Court shall find the minor to be a minor-in-need-of-care and schedule a disposition hearing.
(3) A finding that a minor is a minor-in-need-of-care shall constitute a final order for purposes of appeal.
Section 5-5-9. Adjudicatory Hearing Continuances.
Continuances of an adjudicatory hearing may be granted upon:
(1) Motion of the minor or of the minor's parent(s), guardian, or custodian for good cause shown;
(2) Upon motion of the presenting officer that material evidence or witnesses are unavailable, a finding by the Court that the presenting officer has exercised due diligence to obtain the material evidence or appearance of the witnesses, and reasonable grounds exist to believe that the material evidence will become available or that the witnesses will appear; or
(3) Upon order of the Court during the period of informal adjustment.
Section 5-5-10. Predisposition Report.
(1) The child protective services worker shall prepare a written report describing all reasonable and appropriate alternative dispositions. The report shall contain a specific plan for the care of, and assistance to, the minor and/or the minor's parent(s), guardian, or custodian designed to resolve the problems presented in the petition.
(2) The report shall contain a detailed explanation
(3) If the report recommends placement of the minor somewhere other than with the minor's parent(s), guardian, or custodian, it shall state the specific reasons underlying its placernent recommendation.
(4) The child protective services worker, or its delegate, shall present the predisposition report to the Court, the minor's counsel, and the presenting officer, at least one (1) day before the disposition hearing
Section 5-5-11. Disposition Hearing.
(1) The disposition hearing shall take place not more than sixty (60) days after the adjudicatory hearing.
(2) The Court shall take testimony and receive evidence on the question of proper disposition at the hearing.
(3) The Court shall consider the predisposition report submitted by the child protective services worker. Prior to the hearing, the affected parties shall be given an opportunity to review all reports and supporting documentation. During the hearing, the parties shall have an opportunity to controvert the factual contents and conclusions of the reports. The Court shall also consider the alternative predisposition report prepared by the minor or the minor's counsel.
(4) The dispositional order constitutes a final order for purposes of appeal.
Section 5-5-12. Disposition Alternatives.
If a minor has been found to be a minor-in-need-of-care, the Court may make the following dispositions which are listed by priority:
(1) Permit the minor to remain with his/her parent(s), guardian, or custodian, subject to such conditions as the Court may prescribe;
(2) Place the minor with an extended family member within the service area of the tribe, subject to such conditions as the Court may prescribe;
(3) Place the minor in a licensed foster home within the service area of the tribe, subject to such conditions as the Court may prescribe;
(4) Place the minor in shelter care facilities designated by the Court;
(5) Place the minor in a foster home, or home of a relative, outside of the primary service area of the tribe, subject to such conditions as the Court may prescribe; or
(6) Direct the presenting officer to file a petition to terminate parental rights under Chapter 6 of this Ordinance.
Section 5-5-13. Disposition Orders.
(1) Agreement. Whenever a minor is placed in a home or facility located off the reservation, the Court shall require the party receiving custody of the minor to sign an agreement that the minor will be returned to the Court upon order of the Court.
(2) Duration. The disposition order is to be in effect for the time limit set by the Court, but no order shall continue after the minor reaches the age of twenty-one (21) years.
(3) Review. The disposition order is to be reviewed at the discretion of the Court, at least once every six (6) months.
(4) Finality. The dispositional order constitutes a final order for purposes of appeal.
Section 5-5-14. Modification of Disposition Order.
(1) A disposition order of the Court may be modified, for good cause, upon a showing of a change of circumstances. The Court may modify a disposition order at any time, upon motion of the following:
(a) The minor;
(b) The minor's parent(s), guardian, or custodian; or
(c) The presenting officer.
(2) If the modification involves a change of custody, the Court shall conduct a hearing, pursuant to Section 5-5-14, to review its disposition order.
(3) A hearing to review a disposition order shall be conducted as follows:
(a) The Court shall review the performance of the minor, the minor's parent(s), guardian, or custodian and review reports from the presenting officer and other persons providing assistance to the minor and the minor's family;
(b) In determining whether to modify the disposition, the procedures prescribed in Sections 5-5-11 and 5-5-12 of this Ordinance shall apply;
CHAPTER 6 - TERMINATION OF PARENTAL RIGHTS
Section 5-6-1. Parental Rights.
Parental rights may be terminated by the Court according to the procedures set forth in this Article.
Section 5-6-2. Petition.
Termination of parental rights shall commence upon filing of a petition by the Social Services staff on behalf of the tribe. If the termination is voluntary, the parent(s) or guardian may file a consent to termination in lieu of a petition. The petition shall state:
(1) The name and address of the petitioner, the relationship of the petitioner to the child;
(2) The name, sex, date and place of birth, degree of Indian blood, if known, and residence of the minor;
(3) The names and addresses of the minor's parent(s), guardian or custodian;
(4) If the child is in detention or shelter care, the address of the place of care, and the date the child was taken into custody; and
(5) A concise statement of the grounds upon which termination is sought, including the relevant factual information supporting the grounds for termination.
Section 5-6-3. Scheduling of the Hearing.
Upon receipt of the petition, the Court shall set a date for the termination hearing. The Court shall schedule the hearing no sooner than thirty (30) days nor no later than sixty (60) days after the petition is filed. A hearing continuance may be granted:
(1) Upon motion of the minor's parent(s), guardian, or custodian; the minor; guardian ad litem; or the child protective services worker.
(2) Upon motion of the presenting officer that material evidence or witnesses are unavailable. The Court must find that the presenting officer exercised due diligence to obtain the material evidence or appearance of witnesses, and reasonable grounds exist to believe that the material evidence will soon become available or that the witnesses will soon appear.
Section 5-6-4. Pre-Termination Report.
(1) Within two (2) days of receiving the petition, the Court shall order the preparation of a pre-termination report by its delegate.
(2) The delegate shall consult with the minor 5 parent(s), guardian custodian and all social services, health, education and other personnel who have had previous professional contacts with the minor and the minor's parent(s)1 guardian, or custodian to determine whether termination of parental rights is consistent with the best interest of the child. The delegate may also review any of the minor's previous Court records.
(3) The delegate shall prepare a written report containing the professional opinions of those consulted. The report shall be presented to the Court at least two (2) days prior to the termination hearing.
Section 5-6-5. Termination Hearing.
The sale purpose of the termination hearing is to determine whether parental rights should be terminated. A written record of the hearing shall be made. The hearing shall be closed to the public to protect the privacy of the parties involved. The Court shall take testimony and receive evidence concerning:
(a) The circumstances giving rise to the petition; and
(b) The need for termination of parental rights.
Section 5-6-6. Disposition and Order of Termination.
(1) For involuntary termination of parental rights to be made, the evidence presented must prove beyond a reasonable doubt that:
(a) Active efforts have been made to provide remedial and rehabilitative services to the parent(s) or guardian and that efforts have proven futile: and
(b) The child is likely to suffer serious physical, mental, or emotional harm if parental rights are not terminated. Such a finding may be warranted if, but is not limited to, the following:
(i) The parent has abandoned the child;
(ii) The child has suffered physical, mental, or emotional injuries inflicted by the parent(s) or guardian which causes or created a substantial risk of death, disfigurement, or impairment of bodily, mental, or emotional functions; or
(iii) The parent(s), subjected the child to sexual abuse.
(2) A voluntary termination of parental rights shall not be valid unless written consent of the parent(s) or guardian;
(a) The consequences of voluntary termination of parental rights were explained to the parent(s) or guardian;
(b) The consenting parent(s) or guardian fully understood that all parental rights were being permanently and irrevocably relinquished execution of the consent;
(c) The consenting parent(s) or guardian was/were over the age of eighteen (18) years; and
(d) The consent of the parent(s) or guardian was not the result of fraud, duress, financial inducement, or other undue influence.
Section 5-6-7. Disposition Alternatives.
(1) If parental rights are terminated, the Court shall:
(a) Place the child in a licensed foster care or shelter care facility; and
(b) Proceed to the adoption provisions of this Ordinance.
(2) If parental rights are not terminated, the Court shall make a disposition pursuant to Section 5-6-6 of this Ordinance.
Section 5-6-8. Order of Termination Effect.
(1) The termination order constitutes a final order for purposes of appeal.
(2) No adjudication of parental rights termination shall affect the child's enrollment status as a member of the tribe.
CHAPTER 7 - DUTY TO REPORT CHILD ABUSE AND NEGLECT
Section 5-7-1. Duty to Report.
Any person who has a reasonable cause to suspect that a child has been sexually, physically, mentally or emotionally abused immediately make a report to the tribal law enforcement department or social services department. Those persons reporting, except those specified in Section 5-7-2 below, may remain anonymous.
Section 5-7-2. Persons Specifically Required to Report.
(1) Any person who has reasonable cause to suspect that a child may be a child-in-need-of-care shall make immediately, by phone otherwise, an oral report, or cause an oral report to be made, of the suspected condition to the tribal law enforcement department, social services department, BIA Criminal Investigator or Federal Bureau of Investigation.
(a) physician, surgeon, dentist, podiatrist, chiropractor, nurse, dental hygienist, optometrist, medical examiner, emergency medical technician, paramedic, or health care provider;
(b) teacher, school counselor, instructional aide, teacher's aide, teacher's assistant, or bus driver employed by any tribal, federal, public or private school;
(c) administrative officer, supervisor of child welfare and attendance, or truancy officer of any tribal, federal, public or private school;
(d) child day care worker, headstart teacher, public assistance worker, worker in a group home or residential or day care facility, or social worker;
(e) psychiatrist, psychologist, or psychological assistant;
(f) licensed or unlicensed marriage, family, or child counsel or,
(g) person employed in the mental health profession, or
(h) law enforcement officer, probation officer, worker in a juvenile rehabilitation or detention facility, or person employed in a public agency who is responsible for enforcing statutes and judicial orders;
(2) A person mandated to report under Section 1 shall immediately report to the,tribal social services department 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 non-medical purpose during the pregnancy.
(3) Within 24 hours after making the oral report, the reporting person mandated to report under this section shall file a written report as required in this ordinance. If the reporting person is a member of the staff of a hospital, agency, or school, the reporting person shall notify the person in charge of the hospital, agency, or school of his or her finding and that the report has been made, and shall make a copy of the written report available to the person in charge. One report from a hospital, agency, or school shall be considered adequate to meet the reporting requirement. A member of the staff of a hospital, agency, or school shall not be dismissed or otherwise penalized for making a report required by this act or for cooperating in an investigation.
Section 5-7-3. Immunity from Liability.
All persons or agencies complying in good faith with the provisions of this Ordinance shall be immune from civil liability and criminal prosecution.
Section 5-7-4. Abrogation of Privilege.
Any legally recognized privileged communication except that between attorney and client is abrogated and shall neither constitute grounds for excusing a report otherwise required to be made nor for excluding evidence in a civil child protective Proceeding resulting from a report made pursuant to this Ordinance.
Section 5-7-5. Penalty for Not Reporting.
Any person mandated to report under Section 5-7-1 who knowingly fails to do so or willfully prevent someone else from doing so shall be subject to a charge or civil contempt with a penalty of not more than six (6) months in jail and/or a fine of up to $5,000.
Section 5-7-6. Abuse and Neglect Reports.
(1) Form of Report: Those persons mandated to report under Section 5-7-1 above shall include the following information in the written report:
(a) Names, addresses, age, sex and tribal affiliation of the child and his/her parents, guardian, or custodian.
(b) The grade and school in which the child is currently enrolled;
(c) Name and address of the child's parents or other person responsible for the child's care.
(d) The nature and content of the child's abuse or neglect.
(e) Previous abuse or neglect of the child or his siblings.
(f) The name, age, and address of the person alleged to be responsible for the child's abuse or neglect.
(g) The name and address of the person or agency making the report.
(h) Any other information believed to be important to the investigation and disposition of the alleged abuse.
(2) Any agency or child protective services agency receiving a report alleging abuse shall immediately initiate an investigation and shall take immediate, appropriate steps to secure the safety and well-being of the child/children involved.
(3) Upon completion of the investigation, such agency shall prepare a final written report on such allegation.
Section 5-7-7. Confidentiality of Informant.
The identity of any person making a report described in Section 5-7-2* shall not be disclosed, without the consent of the individual, to any person other than a court of competent jurisdiction or an employee of an Indian tribe, a state or the federal government who needs to know the information in the performance of such employee's duties.
*[Digitizer's note: Copy is not clear where the phrase "Section 5-?-2" appears.]
Section 5-7-8. Examinations and Interviews.
(1) The tribal/BIA law enforcement department or social services department may request a court order for a medical evaluation of a child pursuant to Section 5-3-1 of this ordinance. The department shall have a medical evaluation done without a court order if the child's health is seriously endangered and a court order cannot be obtained.
(2) Photographs, x-rays, medical examinations, psychological examinations, laboratory studies and interviews of an Indian child alleged to have been subject to abuse in Indian country shall be allowed without parental, guardian, or legal custodian consent if believed the child has been subject to abuse.
(3) Examinations and interviews of a child who may have been the subject of abuse shall be conducted under such circumstances and with such safeguards as are designed to minimize additional trauma to the child and, where time permits, shall be conducted with the advise, or under the guidance, of a local multidisciplinary team.
Section 5-7-9. Court Orders.
Upon a finding of reasonable suspicion of abuse, a federal magistrate or U.S. District Court may issue an order enforcing any provision of this section.
CHAPTER 8 - ADOPTION OF ORDINANCE
Section 5-8-1 - Adoption of Children's Welfare Ordinance
This Children's Welfare Ordinance shall become effective upon the date when adopted by a majority vote of the Tribal Council members in a duly called and noticed Council meeting.
CHAPTER 9 - AMENDMENTS
Section 5-9-1 - Amendments to the Children's Welfare Ordinance
1. This Children's Welfare Ordinance may be amended by a majority vote of the Tribal Council members at a duly called and held meeting.
(a) Provided that the Tribal Council shall deliver, by personal service or return receipt mail , the proposed amendment to this Children's Welfare Ordinance to each Band Council office for review and comment by the Band, at least ten (10) days but no more than forty- five (45) days before a vote is taken on such proposed amendment to the Children's Welfare Ordinance by the Tribal Council pursuant to Article 4, Section 20 (b) of the Constitution.
CERTIFICATION
I, the undersigned, as Chairman of the Te-Moak Tribe of Western Shoshone Indians of Nevada do hereby certify that the Te-Moak Western Shoshone Council is composed of 11 members, of whom 7 constituting a quorum were present at a duly held meeting on the 27th day of June, 1996, and that the foregoing ordinance was duly adopted at such meeting by an affirmative vote of 6 FOR, 0 AGAINST, and 0 ABSTENTIONS, pursuant to the authority contained under Article 4, Section 3(n) of the Constitution of the Te-Moak Tribe of Western Shoshone Indians of Nevada, and that said ordinance has not been rescinded nor amended in any form.
| /s/ Felix Ike, Chairman Te-Moak Tribe of Western Shoshone |
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ATTEST: /s/ |