handling a chips case in fcpc tribal court law day april 30, 2015
TRANSCRIPT
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