Handling a CHIPS Case in FCPC Tribal Court

Law DayApril 30, 2015

Establishment Declaration that the children are the

Tribe’s greatest resource Prevent families from breaking up Specific welfare of the children General welfare of the community Requires liberal application of the Code

Jurisdiction The Tribal Court has exclusive original

jurisdiction of all proceedings under the Children’s Code in which a child is alleged to be a child in need of care and is recognized by the Community as a FCPC child.

Who Determines? Executive Council

by Resolution Tribal Court Judge

by an independent finding—finding is final and non-appealable

What Types of Proceedings are Covered? TPRS Adoptions Custody Guardianships Placements Placement and Treatment for mental

illness

Definition of Child in Need of Care No parent able or willing to provide care Child not being provided adequate food,

shelter, clothing medical care, education necessary for child’s health and well-being

Parents subjected child knowingly, intentionally or negligently child in serious danger

Definition cont. Child is without proper supervision and

control because of neglect or absence of parent

Parents unable due to incarceration or hospitalization

Sexually abused by parent Committing offenses at instance of

parent Habitual truancy Ungovernable children

Duration Until the child becomes an adult (18) When the Court by order terminates

jurisdiction

Nuts and Bolts of Process

Temporary Issues ResolvedPetitionDispositionMonitoring

Temporary Matters Emergency removal

Probable cause for child needing care and would be injured or moved outside Court’s jurisdiction

Reasonable grounds to believe child is a runaway

Pursuant to a Petition where the Court finds probable cause to believe child is in need of care

Investigating Agency County does investigation and most of

the initial screens Does not exclude the Tribe-Tribe may

make its own independent finding for the need

Emergency Custody Release to child’s parent, guardian or

relative unless shelter or detention necessary

Draft TPC order-requires basic facts on jurisdiction and the supporting facts for removal

Criteria for Detention None, without a Court order, unless: Probable cause exists child self-injurious

or subject to injury by others Probable cause that no one is available

to provide adequate care and supervision

Probable cause that child will run away or otherwise be unavailable for court

Requires a hearing in 48 hours

Detention & Shelter Care Hearings Child has a right to engage counsel at

his or her expense Court may appoint a GAL Child must be informed of and indicate

an understanding as to why the hearing is being held

Filing Petitions May be based upon a report given by

any person who has knowledge of the facts

Or who is informed of the facts and believes they are true

Or by the ICW staff on “information and belief”

Contents of the Petition Jurisdictional statement Statement of facts (parties, acts, dates,

times and locations) Child’s name, d.o.b. and current location Name and location of child’s parents ICW must sign off on the petition Whether the child is in custody-then

when taken and where and the grounds for the decision

Processing Petition Filed Court Clerk sets time for Initial

Appearance and Serves Summons with attached Petition on parents, guardian, and the person with whom the child currently resides

Parents and Guardians have a right to retain counsel at their own expense

Basic Rights in all proceedings The right to Counsel at their own

expense unless Court orders otherwise To introduce evidence To examine witnesses To make statements To receive discovery Hearings are closed to the general

public

Initial Appearance Parties are advised of their rights Admit or Deny If admitted, the matter is considered

adjudicated If denied, then a fact-finding hearing is

scheduled

Fact-Finding Hearing Discovery Pre Trial Motions Pre Trial Disclosure of all Witnesses five

days prior to trial BOP is clear and convincing evidence

Dispositional Hearing ICW prepares recommendations for

services- “Service Plan” Placement recommendations Subject to cross examination

Court Required to Consider the Following: Child’s physical or mental condition Child’s needs Degree of parental involvement in the

abuse or neglect or abandonment Parental ability to provide supervision

and care

Court’s Options in Order of Preference Dismiss the Petition Refer for limited services and dismiss Order terms of parental supervision

when parents if parents have capacity Shelter Care in order of preference:

Relative Foster home Group home

Monitoring Risks assessed regularly Compliance with service plan reviewed

weekly Requires authorizations and releases May be subject to modification by Court

order Must be reviewed annually

Appeal Rights Must file a Notice of Appeal within 20

days of the mailing of the Final Order (follow Court Rule 8)

Pending Appeals do not suspend the Court’s order unless Appellate Court specifically orders otherwise