The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Chapter 7A - Juvenile Code*

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*Cross references: Civil procedure, ch. 1; crimes against children, § 14-30 et seq.; adoption, ch. 48; domestic and family violence, ch. 50C; child support enforcement, ch. 110.
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Article I - In General
Article II - Screening of Delinquency and Undisciplined Petitions
Article III - Temporary Custody; Secure and Nonsecure Custody; Custody Hearings
Article IV - Basic Rights
Article V - Law Enforcement Procedures in Delinquency Proceedings
Article VI - Medical Treatment of Juveniles

ARTICLE I. IN GENERAL

Sec. 7A-1. Purpose.

This chapter shall be interpreted and construed so as to implement the following purposes and policies:

(a) To divert juvenile offenders from the juvenile system through the intake services authorized herein so that juveniles may remain in their own homes and may be treated through community-based services when this approach is consistent with the protection of the public safety;

(b) To provide procedures for the hearing of juvenile cases that ensure fairness and equity and that protect the constitutional rights of the juveniles and parents; and

(c) To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the child, the strengths and weaknesses of the family, and the protection of the public safety.

Sec. 7A-2. Definitions.

Unless the context clearly requires otherwise, the following words have the listed meanings:

(a) Caretaker shall mean any person other than a parent who is caring for a juvenile, including any blood relative, step-parent, foster parent, or house parent, cottage parent or other person supervising a juvenile in a child care facility.

(b) Clerk shall mean the Clerk of the Cherokee Court, acting clerk, or assistant or deputy clerk.

(c) Court shall mean the Cherokee Court of Indian Offenses or Cherokee Tribal Court.

(d) Court counselor shall mean a person responsible for probation and aftercare services to juveniles on probation or on conditional release.

(e) Custodian shall mean the person or agency that has been awarded legal custody of a juvenile by a court.

(f) Delinquent juvenile shall mean any juvenile who is less than 16 years of age who has committed a criminal offense under tribal or federal laws, including violation of the motor vehicle laws.

(g) Detention shall mean the confinement of a juvenile pursuant to an order for secure custody pending an adjudicatory or dispositional hearing or admission to a placement.

(h) Detention home shall mean an authorized facility providing secure custody for juveniles.

(i) Guardian shall mean a person who legally has the care and management of the person or the estate or both, of a child during its minority.

(j) In loco parentis shall mean person acting in loco parentis, other than parents or legal guardian, who has assumed the status and obligation of a parent without being awarded the legal custody of a juvenile by a court.

(k) Intake counselor shall mean a person who screens a petition alleging that a juvenile is delinquent or undisciplined to determine whether the petition should be filed.

(l) Judge shall mean any judge of the Cherokee Court of Indian Offenses or Cherokee Tribal Court.

(m) Juvenile shall mean any person who is less than 18 years of age and is not married, emancipated or a member of the armed services of the United States. A juvenile who is married, emancipated or a member of the armed forces shall be prosecuted as an adult for the commission of a criminal offense. Wherever the term "juvenile" is used with reference to rights and privileges, that term encompasses the attorney for the juvenile as well.

(n) Parent shall mean any biological parent or parents of a juvenile or any person who has lawfully adopted a juvenile. It does not include the unwed father where paternity has not been acknowledged or established.

(o) Petitioner shall mean the individual who initiates court action whether by the filing of a petition or of a motion for review alleging the matter for adjudication.

(p) Probation shall mean the status of a juvenile who has been adjudicated delinquent subject to specific conditions under the supervision of a court counselor who may be returned to the court for violation of those conditions during the period of probation.

(q) Prosecutor shall mean the prosecuting attorney for the Cherokee Court of Indian Offenses or the Cherokee Tribal Court.

(r) Protective supervision shall mean the status of a juvenile who has been adjudicated delinquent or undisciplined and is under the supervision of a court counselor.

(s) Shelter care shall mean the temporary care of a juvenile in a physically unrestricting facility pending court disposition.

(t) Undisciplined juvenile shall mean a juvenile who is less than 18 years of age who is unlawfully absent from school; who is regularly disobedient to his parent, guardian, or custodian and beyond their disciplinary control, who is found in places where it is unlawful for a juvenile to be, or who has run away from home.

(Ord. No. 76A, 1-8-1998; Ord. No. 289, 7-17-00; Ord. No. 160, 2-14-2002)

Sec. 7A-3. Jurisdiction.

The Cherokee Court has exclusive, original jurisdiction over any case involving an Indian juvenile who is domiciled within the territory of the Eastern Band of Cherokee Indians and is alleged to have committed a delinquent, undisciplined or unlawful act within the territory of the Tribe. In addition, the Cherokee Court has jurisdiction over the parent, guardian, or custodian of a juvenile who is under the jurisdiction of the court pursuant to this section if the parent, guardian, or custodian has been served with a summons pursuant to section 7A-18. For purposes of determining jurisdiction, the age of the juvenile at the time of the alleged offense governs. For juveniles alleged to be delinquent, undisciplined or unlawful act within the territory of the Tribe, the minimum age is six years of age. The court also has exclusive original jurisdiction of the following proceedings:

(1) Proceedings to determine jurisdiction;

(2) Proceedings to determine whether the juvenile is within the jurisdiction of the court;

(3) Proceedings to determine whether the facts alleged constitute a delinquent or undisciplined offense;

(4) Proceedings to determine whether the facts are sufficiently serious to warrant court action;

(5) Proceedings to obtain assistance from community resources when court action is not necessary;

(6) Proceedings to determine whether a juvenile who is on conditional release and under after-care supervision of the court counselor has violated the terms of his conditional release;

(7) Hearing procedures;

(8) Proceedings for expunction of records of juveniles adjudicated delinquent or undisciplined.

(Ord. No. 289, 7-17-00; Ord. No. 154, 6-28-2004)

Sec. 7A-4. Retention of jurisdiction.

When the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or, until the delinquent juvenile reaches his 16th birthday and until the undisciplined juvenile reaches his 18th birthday, except as provided otherwise in this section. The court has continuing jurisdiction over a delinquent juvenile who is in custody and over proceedings to determine whether a delinquent juvenile is on probation or who is under the post-release supervision of the court has violated the terms of the delinquent juvenile's probation or the delinquent juvenile's post-release supervision. In addition, the court retains jurisdiction over the parent, guardian or custodian of a juvenile who is under the jurisdiction of the court pursuant to this section if the parent, guardian or custodian has been served with a summons pursuant to section 7A-18.

(Ord. No. 289, 7-17-00)

ARTICLE II. SCREENING OF DELINQUENCY AND UNDISCIPLINED PETITIONS

Sec. 7A-5. Intake services.

(a) The intake counselor/court counselor shall establish intake services for all delinquency and undisciplined cases.

(b) The purpose of intake services shall be to determine from available evidence whether there are reasonable grounds to believe the facts alleged are true, to determine whether the facts alleged constitute a delinquent or undisciplined offense within the jurisdiction of the court, to determine whether the facts alleged are sufficiently serious to warrant court action and to obtain assistance from community resources when court referral is not necessary. The intake counselor shall not engage in field investigations to substantiate complaints or to produce supplementary evidence but may refer complaints to law enforcement agencies for those purposes.

Sec. 7A-6. Preliminary inquiry.

(a) When a complaint is received, the intake counselor shall make a preliminary determination whether the juvenile is within the jurisdiction of the court as a delinquent or undisciplined juvenile. If the intake counselor finds that the facts contained in the complaint do not state a case within the jurisdiction of the court, that legal sufficiency has not been established, or that the matters alleged are frivolous, he shall, without further inquiry, refuse authorization to file the complaint.

(b) When requested by the intake counselor, the prosecutor shall assist in determining the sufficiency of evidence as it affects the quantum of proof and the elements of the offenses.

(c) If the intake counselor finds reasonable grounds to believe that the juvenile has committed any of the offenses included under the Major Crimes Act, 18 U.S.C. 1153, he shall, without further inquiry, refer the matter to the United States Attorney.

Sec. 7A-7. Evaluation.

Upon finding of legal sufficiency, the intake counselor shall determine whether a complaint should be filed as a petition, the juvenile diverted to a community resource, or the case resolved without further action. The intake process shall include the following steps, if practicable:

(a) Interviews with the complainant and the victim, if someone other than the complainant;

(b) Interviews with persons known to have information about the juvenile or family, which information is pertinent to the case;

(c) Interviews required by this section shall be conducted in person unless it is necessary to conduct them by telephone.

Sec. 7A-8. Evaluation decision.

(a) The evaluation of a particular complaint shall be completed within 15 days, with an extension of a maximum of 15 additional days at the discretion of the intake counselor/court counselor. The intake counselor must decide within this time period whether or not a complaint will be filed as a juvenile petition. If the intake counselor determines that a complaint should be filed as a petition, he shall assist the complainant when necessary with the preparation and filing of the petition, or help with the preparation and filing of the petition, shall endorse on it the date and the words "Approved for filing," shall sign it beneath such words, and shall transmit it to the clerk. If the intake counselor determines that a petition should not be filed, he shall immediately notify the complainant in writing with the reasons for his decision and shall include notice of the complainant's right to have the decision reviewed by the prosecutor. The intake counselor shall then sign his name on the complaint beneath the words "Not approved."

(b) Any complaint not approved for filing as a juvenile petition shall be destroyed by the intake counselor after holding the complaint for a temporary period to allow follow-up and review.

Sec. 7A-9. Referral and follow-up.

The intake counselor may refer any case to an appropriate public or private resource unless the offense is one in which a petition is required. After making a referral, the intake counselor shall ascertain that the juvenile actually contacted or was seen by the resource to which he was referred. In the event that the juvenile does not contact or visit the community resource, the intake counselor may reconsider his decision to divert and may authorize the filing of a complaint as a petition within 60 days from the date of the referral. If the juvenile contacts or is seen by the resource, the intake counselor shall close the file.

Sec. 7A-10. Request for review by prosecutor.

The complainant has five calendar days, from receipt of the intake counselor's decision not to approve the filing of a complaint, to request review by the prosecutor. The intake counselor shall notify the prosecutor immediately of such request and shall transmit to the prosecutor a copy of the complaint. The prosecutor shall notify the complainant and the intake counselor of the time and place for the review.

Sec. 7A-11. Review of determination that petition should not be filed.

The prosecutor shall review the intake counselor's determination that a juvenile petition should not be filed within 20 days after the complainant is notified. Review shall include conferences with the complainant and the intake counselor. At the conclusion of the review, the prosecutor shall affirm the decision of the intake counselor or direct the filing of a petition and notify the complainant of his action.

Sec. 7A-12. Pleading and process.

The pleading in a juvenile action is the petition. The process in a juvenile action is the summons.

Sec. 7A-13. Contents of the petition.

(a) The petition shall contain the name, date of birth, address of the juvenile, the name and last known address of his parent, guardian or custodian and shall allege the facts which invoke jurisdiction over the juvenile. In cases of alleged delinquency or undisciplined behavior, the petition shall be separate for each juvenile.

(b) A petition in which delinquency is alleged shall contain a plain and concise statement, without allegations of an evidentiary nature, asserting facts supporting every element of a criminal offense and the juvenile's commission thereof with sufficient precision clearly to apprise the juvenile of the conduct which is the subject of the accusation.

(c) Sufficient copies of the petition shall be prepared so that copies will be available for each juvenile, for each parent if living separate and apart, for the court counselor or social worker, and for any person determined by the court to be a necessary party.

Sec. 7A-14. Receipt of complaints; filing of petition.

(a) All reports concerning a juvenile alleged to be delinquent or undisciplined shall be referred to the intake counselor. If the intake counselor determines that a petition should be drawn and filed, the petition shall be drawn by the intake counselor or the clerk, signed by the complainant and verified before an official authorized to administer oaths. If the circumstances indicate a need for immediate attachment of jurisdiction and if the intake counselor is unavailable to receive a complaint and to draw a petition when it is needed, the clerk shall assist the complainant in communicating his complaint to the intake counselor by telephone and, with the approval of the intake counselor, shall draw a petition and file it when signed and verified. A copy of the complaint and petition shall be transmitted to the intake counselor.

(b) All complaints, and any decision of the intake counselor not to authorize that a complaint be filed as a petition, shall be reviewed by the prosecutor, if review is requested. If the prosecutor, after making his review, shall authorize a complaint to be filed as a petition, he shall prepare the complaint to be filed by the clerk as a petition, recording the day of filing.

Sec. 7A-15. Immediate need for petition when clerk's office is closed.

(a) All complaints which may arise when the office of the clerk is closed shall be referred to the intake counselor according to the nature of the complaint.

(b) When the office of the clerk is closed, a Judge may draw, verify and issue petitions when an intake counselor requests a petition alleging a juvenile to be delinquent or undisciplined.

(c) The authority of the Judge under subsection (b) is limited to emergency situations when a petition is required in order to obtain a secure or nonsecure custody order. Any petition issued under this section shall be delivered to the clerk's office for processing as soon as that office is open for business.

Sec. 7A-16. Commencement of action.

An action is commenced by the filing of a petition in the clerk's office when that office is open or by the issuance of a juvenile petition by a Judge when the clerk's office is closed, which issuance shall constitute filing.

Sec. 7A-17. Issuance of summons.

(a) After a petition has been filed, the clerk shall issue a summons to the juvenile, to the parent and to the guardian, custodian or caretaker, requiring them to appear for a hearing at the time and place stated in the summons. A copy of the petition shall be attached to each summons. The summons shall advise the parent that upon service, jurisdiction over him is obtained and that failure of the parent to comply with any order of the court may cause the court to issue a show cause order for contempt.

(b) A summons shall be directed to the person summoned to appear and shall be delivered to any law enforcement officer having authority and territorial jurisdiction or to a juvenile court counselor, to execute the process.

Sec. 7A-18. Service of summons.

(a) The summons shall be personally served upon the parent, the guardian, custodian or caretaker and the juvenile or counsel or guardian ad litem, not less than five days prior to the date of the scheduled hearing. The time for service may be waived in the discretion of the Judge.

(b) If the parent, guardian or custodian entitled to receive a summons cannot be found by a diligent effort, the Judge may authorize service of the summons and petition by mail or publication. The cost of the service by publication shall be advanced by the petitioner and may be charged as court costs as the Judge, in his discretion, may direct.

(c) If the parent, guardian or custodian is personally served as herein provided and fails without reasonable cause to appear and to bring the juvenile before the court, he may be proceeded against as for contempt of court.

ARTICLE III. TEMPORARY CUSTODY; SECURE AND NONSECURE CUSTODY; CUSTODY HEARINGS

Sec. 7A-19. Taking a juvenile into temporary custody.

Temporary custody means the taking of physical custody and providing personal care and supervision until a court order for secure or nonsecure custody can be obtained. A juvenile may be taken into temporary custody under the following circumstances:

(1) A juvenile may be taken into temporary custody by a law enforcement officer without a court order if grounds exist for the arrest of an adult in similar circumstances.

(2) A juvenile may be taken into temporary custody without a court order by a law enforcement officer if there are reasonable grounds to believe that he is an undisciplined juvenile.

(3) A juvenile may be taken into custody without a court order by a law enforcement officer, if there are reasonable grounds to believe the juvenile is an absconder from any State training school or approved detention facility.

(Ord. No. 872, 8-9-2001)

Sec. 7A-20. Duties of person taking juvenile into temporary custody.

(a) A person who takes a juvenile into custody without a court order under section 7A-19 shall proceed as follows:

(1) Notify the juvenile's parent, guardian or custodian that the juvenile has been taken into temporary custody and advise the parent, guardian or custodian of his right to be present with the juvenile until a determination is made as to the need for secure or nonsecure custody. Failure to notify the parent that the juvenile is in custody shall not be grounds for release of the juvenile;

(2) Release the juvenile to his parents, guardian or custodian if the person having the juvenile in temporary custody decides that continued custody is unnecessary;

(3) If the juvenile is not released under subsection (2), the person having temporary custody shall proceed as follows: In the case of a juvenile alleged to be delinquent or undisciplined, he shall request a petition be drawn. Once the petition has been drawn and verified, the person shall communicate with the intake counselor who shall consider prehearing diversion. If the decision is made to file a petition, the intake counselor shall contact the Judge or person delegated authority pursuant to section 7A-21 if other than the intake counselor, for a determination of the need for continued custody.

(b) A juvenile taken into temporary custody under this article shall not be held for more than 12 hours unless:

(1) A petition or motion for review has been filed by an intake counselor, and

(2) An order for secure or nonsecure custody has been entered by a Judge.

Sec. 7A-21. Authority to issue custody orders.

In the case of any juvenile alleged to be within the jurisdiction of the court, when the Judge finds it necessary to place the juvenile in custody, he may order that the juvenile be placed in secure or nonsecure custody pursuant to criteria set out in section 7A-22. Any Judge shall have the authority to issue secure and nonsecure custody orders.

Sec. 7A-22. Criteria for secure or nonsecure custody.

(a) Nonsecure custody shall be rendered unless secure custody is appropriate under the criteria set out in subsections (b), (c) and (d) of this section.

(b) When a request is made for secure custody, the Judge may order secure custody only where he finds there is a reasonable factual basis to believe that the juvenile actually committed the offense as alleged in the petition, and:

(1) That the juvenile is presently charged with one or more felonies, or

(2) That the juvenile has willfully failed to appear on the pending delinquency charge or has a record of willful failures to appear at court proceedings, or

(3) That by reason of the juvenile's threat to flee from the court's jurisdiction or circumstances indicating preparation or design to flee from the court's jurisdiction, there is reasonable cause to believe the juvenile will not appear in court on a pending delinquency charge unless he is detained, or

(4) That the juvenile is an absconder from any training school or facility in this or another state, or

(5) That the juvenile has a recent record of adjudications for violent conduct resulting in serious physical injury to others, the petition pending is for delinquency and the charge involves physical injury, or

(6) That by reason of the juvenile's recent self-inflicted injury or attempted self-injury there is reasonable cause to believe the juvenile should be detained for his own protection for a period of less than 24 hours while action is initiated to determine the need for inpatient hospitalization, provided that the juvenile has been refused admittance by any appropriate hospital, or

(7) That the juvenile alleged to be undisciplined by virtue of his being a runaway may be detained for a period of no more than 82 hours to facilitate evaluation of the juvenile's need for medical or psychiatric treatment or to facilitate reunion with his parents.

(c) When a juvenile has been adjudicated delinquent, the Judge may order secure or nonsecure custody pending the dispositional hearing or pending placement of a delinquent juvenile. The Judge may also order secure custody for a juvenile who is alleged to have violated the terms of his probation or conditional release.

(d) In determining whether secure custody should be ordered, the Judge should consider the nature of the circumstances of the offense; the weight of the evidence against the juvenile; the juvenile's family ties, character, mental condition, and school attendance record; and whether the juvenile is on conditional release. If the criteria for secure custody as set out in subsection (b) or (c) are met, the Judge may enter an order directing an officer to assume custody of the juvenile and to take the juvenile to the place designated in the order.

(Ord. No. 872, 8-9-2001)

Sec. 7A-23. Order for secure or nonsecure custody.

(a) The custody order shall be in writing and shall direct a law enforcement officer to assume custody of the juvenile and to make due return on the order. A copy of the order shall be given to the juvenile's parent, guardian or custodian by the official executing the order. If the order is for secure custody, copies of the petition and custody order shall accompany the juvenile to the detention facility or holdover facility of the jail.

(b) An officer receiving an order for custody which is complete and regular on its face may execute it in accordance with its terms and need not inquire into its regularity or continued validity, nor does he incur criminal or civil liability for its due service.

(Ord. No. 872, 8-9-2001)

Sec. 7A-24. Place of secure or nonsecure custody.

(a) A juvenile meeting the criteria set out in section 7A-22(a), may be placed in nonsecure custody with the Department of Social Services or an appropriate person designated in the order for temporary residential placement in:

(1) A licensed foster home or a home otherwise authorized by law to provide such care, or

(2) Any other home or facility approved by the court and designated in the order.

(b) A juvenile meeting the criteria set out in section 7A-22(b) may be temporarily detained in an approved detention home or regional detention facility which shall be separate from any jail, lockup, prison or other adult penal institution.

Sec. 7A-25. Hearing to determine need for continued secure or nonsecure custody.

(a) No juvenile shall be held under a custody order for more than five calendar days without a hearing on the merits or a hearing to determine the need for continued custody. In every case in which an order has been entered by an official exercising authority delegated pursuant to chapter 21 of this Code, a hearing to determine the need for continued custody shall be conducted on the day of the next regularly scheduled session of court, if such session precedes the expiration of the five calendar day period.

(b) Any juvenile who is alleged to be delinquent shall be advised of his right to have an attorney represent him.

(c) At a hearing to determine the need for continued custody, the Judge shall receive testimony and shall allow the juvenile and his parent, guardian or custodian an opportunity to introduce evidence, to be heard in their own behalf and to examine witnesses. The Tribe shall bear the burden at every stage of the proceedings to provide clear and convincing evidence that restraints on the juvenile's liberty are necessary and that no less intrusive alternative will suffice. The Judge shall not be bound by the usual rules of evidence at such hearings.

(d) The Judge shall be bound by criteria set forth in section 7A-22 in determining whether continued custody is warranted.

(e) The Judge shall impose the least restrictive interference with the liberty of a juvenile who is released from secure custody including:

(1) Release on the written promise of the juvenile's parent, guardian or custodian to produce him in court for subsequent proceedings, or

(2) Release into the care of a reasonable person or organization, or

(3) Release conditioned on restrictions on activities, associations, residence or travel if reasonably related to securing the juvenile's presence in court, or

(4) Any other conditions reasonably related to securing the juvenile's presence in court.

(f) If the Judge determines that the juvenile meets the criteria in section 7A-22 and should continue in custody, he shall issue an order to that effect. The order shall be in writing with appropriate findings of fact. The findings of fact shall include the evidence relied upon in reaching the decision and the purposes which continued custody is to achieve.

Sec. 7A-26. Telephonic communications authorized.

All communications, notices, orders, authorizations and requests authorized or required by this Code may be made by telephone when other means of communication are impractical. All written orders pursuant to telephonic communication shall bear the name and the title of the person communicating by telephone, the signature and the title of the official entering the order and the hour and the date of the authorization.

ARTICLE IV. BASIC RIGHTS

Sec. 7A-27. Juvenile's right to counsel.

A juvenile alleged to be within the jurisdiction of the court has the right to be represented by counsel, at their own expense, in all proceedings in which delinquency is alleged. The right of representation shall not include the right to counsel at the expense of the Tribe. Neither the United States Constitution nor the Indian Civil Rights Act require legal counsel to be provided at the expense of the Tribe.

Sec. 7A-28. Appointment of guardian.

In any case when no parent appears in a hearing with the juvenile or when the Judge finds it would be in the best interest of the juvenile, the Judge may appoint a guardian of the person for the juvenile. The guardian shall operate under the supervision of the court with or without bond and shall file only such reports as the court shall require. The guardian shall have the care, custody and control of the juvenile or may arrange a suitable placement for him and may represent the juvenile in legal actions before any court. The guardian shall also have authority to consent to certain actions on the part of the juvenile in place of the parent including marriage, enlisting in the armed forces, and undergoing major surgery. The authority of the guardian shall continue until the guardianship is terminated by order, until the juvenile is emancipated or until the juvenile reaches the age of majority.

ARTICLE V. LAW ENFORCEMENT PROCEDURES IN DELINQUENCY PROCEEDINGS

Sec. 7A-29. Role of the law enforcement officer.

(a) The records of law enforcement officers concerning juvenile cases shall be maintained separately from other police records and may not be inspected or disclosed to the public, except:

(1) To the victim and appropriate school officials in each case when the juvenile is found guilty of a delinquent act;

(2) By order of the court;

(3) When the court orders the child to be held for criminal proceedings;

(4) When there has been a criminal conviction and a presentence investigation is being made on an application for probation; or

(5) When disclosure is to a tribal, federal, or state officer, employee, or agency in their official capacity who shows a bona fide need for the information to assist in apprehension, to conduct an investigation, or as otherwise provided by law.

(b) A law enforcement officer, when he takes a juvenile into temporary custody, should select the least restrictive course of action appropriate to the situation and needs of the juvenile from the following:

(1) To divert the juvenile from the court by:

a. Release;

b. Counsel and release;

c. Release to parents;

d. Referral to community resources;

(2) To seek a petition;

(3) To seek a petition and request for custody order.

(Ord. No. 289, 7-17-00)

Sec. 7A-30. Interrogation procedures.

(a) Any juvenile in custody must be advised prior to questioning:

(1) That he has a right to remain silent, and

(2) That any statement he does make can be and may be used against him, and

(3) That he has a right to have a parent, guardian or custodian present during questioning, and

(4) That he has the right to consult with an attorney.

(b) When the juvenile is less than 14 years of age, no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardian, custodian, or attorney. If an attorney is not present, the parent, guardian or custodian as well as the juvenile must be advised of the juvenile's rights as set out in subsection (a); however, a parent, guardian or custodian may not waive any right on behalf of the juvenile.

Sec. 7A-31. Authority to issue nontestimonial identification order where juvenile alleged to be delinquent.

Nontestimonial identification procedures shall not be conducted on any juvenile without a court order issued pursuant to this Code unless the juvenile has been transferred to Tribal court or the federal court for trial as an adult, in which case procedures applicable to adults shall apply. A nontestimonial identification order may be issued by any Judge upon request of a prosecutor. As used in this Code, "nontestimonial identification" means identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples or other reasonable physical examination, handwriting samples, voice samples, photographs and lineups or similar identification procedures requiring the presence of a juvenile.

Sec. 7A-32. Time of application of nontestimonial identification order.

A request for nontestimonial identification order may be made prior to taking a juvenile into custody or after custody and prior to the adjudicatory hearing.

Sec. 7A-33. Grounds for order.

An order may issue only on affidavit or affidavits sworn before the Judge and establishing the following grounds for the order:

(a) That there is probable cause to believe that an offense has been committed which if committed by an adult would be punishable in federal court by imprisonment for more than two years, and

(b) That there are reasonable grounds to suspect that the juvenile named or described in the affidavit committed the offense, and

(c) That the result of specific nontestimonial identification procedures will be of material aid in determining whether the juvenile named in the affidavit committed the offense.

Sec. 7A-34. Issuance of order.

Upon a showing that the grounds specified in section 7A-33 of this Code exist, the Judge may issue an order.

Sec. 7A-35. Nontestimonial identification order at request of juvenile.

A juvenile in custody for or charged with an offense which if committed by an adult would be punishable in federal court by imprisonment for more than two years, may request that nontestimonial identification procedures be conducted upon himself. If it appears that the results of specific nontestimonial identification procedures will be of material aid to the juvenile's defense, the Judge to whom the request was directed must order the Tribe to conduct the identification procedures.

Sec. 7A-36. Destruction of records resulting from nontestimonial identification procedures.

The results of any nontestimonial identification procedures shall be retained or disposed of as follows:

(a) If a petition is not filed against a juvenile who has been subject to nontestimonial identification procedures, all records of such evidence shall be destroyed.

(b) If the juvenile is found not guilty, all records resulting from a nontestimonial order shall be destroyed. Further, in the case of a juvenile who is under 14 years of age, and who is adjudicated to have committed a delinquent act which would be less than a felony had the juvenile been an adult, all records shall be destroyed.

(c) If a juvenile 14 years of age or older is found to have committed a delinquent act which would be a felony if committed by an adult, all records resulting from a nontestimonial order may be retained in the court file. Special precautions shall be taken to ensure that these records will be maintained in such a manner and under safeguards as to limit their use to inspection for comparison purposes by law enforcement officials only in the investigation of a crime.

(d) Any evidence seized pursuant to a nontestimonial order shall be retained by law enforcement officers until further order is entered by the court.

(e) Destruction of nontestimonial identification records pursuant to this section shall be performed by the law enforcement agency having possession of such records. Following destruction, the law enforcement agency shall make written certification to the court of such destruction.

Sec. 7A-37. Penalty for willful violation.

Any person who willfully violates provisions of this Code, which prohibit conducting nontestimonial identification procedures without an order issued by a Judge, shall be guilty of a misdemeanor and may be punished by imprisonment for up to six months and a fine of up to $500.00.

Sec. 7A-38. Transfer of jurisdiction of juvenile.

After notice, hearing and a finding of probable cause, the court may transfer jurisdiction of a juvenile who is 14 years of age or older at the time he allegedly committed an offense which would be a felony if committed by an adult. If the alleged felony constitutes a capital offense, the Judge shall transfer the case to the federal court for trial as in the case of adults.

Sec. 7A-39. Amendment of petition.

The Judge may permit a petition to be amended when the amendment does not change the nature of the offense alleged or the conditions upon which the petition is based. If a motion to amend is allowed, the juvenile shall be given a reasonable opportunity to prepare a defense to the amended allegations.

Sec. 7A-40. Determination of incapacity to proceed; evidence; temporary commitment; temporary orders.

The provisions of the Tribal Criminal Code or Code of Federal Regulations apply to all cases in which a juvenile is alleged to be delinquent. No juvenile committed under this section may be placed in a situation where he will come in contact with adults committed for any purpose.

Sec. 7A-41. Adjudicatory hearing.

The adjudicatory hearing shall be held in the court at such time and place as the Judge shall designate. The Judge may exclude the public from hearing unless the juvenile moves that the hearing be open, which motion shall be granted.

Sec. 7A-42. Participation of the prosecutor.

A prosecutor shall represent the Tribe in contested delinquency hearings including detention, probable cause, adjudicatory, dispositional, probation, revocation and conditional release hearings.

Sec. 7A-43. Conduct of hearing.

The adjudicatory hearing shall be a judicial process designed to adjudicate the existence or nonexistence of any of the conditions alleged in a petition. In the adjudicatory hearing, the Judge shall protect the following rights of the juvenile and his parents to assure due process of law; the right to written notice of the facts alleged in the petition, the right to counsel at their own expense, the right to confront and cross-examine witnesses, the privilege against self-incrimination, the right of discovery and all rights afforded adult offenders except the right to bail and the right of self-representation.

Sec. 7A-44. Continuances.

The court may continue at any time any case to allow additional factual evidence, social information or other information needed in the best interest of the juvenile or in the interest of justice.

Sec. 7A-45. When admission by juvenile may be accepted.

(a) A Judge may accept an admission from a juvenile only after first addressing him personally, and:

(1) Informing him that he has a right to remain silent and that any statement he makes may be used against him,

(2) Determining that he understands the nature of the charge,

(3) Informing him that he has a right to deny the allegations,

(4) Informing him that by his admission he waives his right to be confronted by the witnesses against him,

(5) Determining that the juvenile is satisfied with his representation, and

(6) Informing him of the most restrictive disposition on the charge.

(b) By inquiring of the prosecutor, the juvenile's attorney and the juvenile personally, the Judge shall determine whether there were any prior discussions involving admissions, whether the parties have entered into any arrangement with respect to the admissions and the terms thereof and whether any improper pressure was exerted. The Judge may accept an admission from a juvenile only after determining that the admission is a product of informed choice.

(c) The Judge may accept an admission only after determining that there is a factual basis for the admission. This determination may be based upon any of the following information: a statement of facts by the prosecutor; a written statement of the juvenile; sworn testimony which may include reliable hearsay; or a statement of facts by the juvenile's attorney.

Sec. 7A-46. Rules of evidence.

Where delinquent or undisciplined behavior is alleged and the allegation is denied, the court shall proceed in accordance with rules of evidence applicable to criminal cases. In addition, no statement made by a juvenile to the intake counselor during the preliminary inquiry and evaluation process shall be admissible prior to the dispositional hearing.

Sec. 7A-47. Quantum of proof in adjudicatory hearing.

The allegations of a petition alleging the juvenile is delinquent shall be proved beyond a reasonable doubt.

Sec. 7A-48. Records of proceedings.

All adjudicatory and dispositional hearings and hearings on transfer to federal court shall be recorded by stenographic notes or by electronic or mechanical means. Records shall be reduced to a written transcript only when timely notice of appeal has been given. The Judge may order that other hearings be recorded.

Sec. 7A-49. Adjudication.

If the Judge finds that the allegations in the petition have been proved as provided in section 7A-13 he shall so state. If the Judge finds that the allegations have not been proved, he shall dismiss the petition with prejudice and the juvenile shall be released from secure or nonsecure custody.

Sec. 7A-50. Predisposition investigation and report.

The Judge shall proceed to the dispositional hearing upon receipt of sufficient social, medical, psychiatric, psychological and educational information. No predisposition report shall be submitted to or considered by the Judge prior to the completion of the adjudicatory hearing. The Judge shall permit the juvenile to inspect any predisposition report to be considered by him in making his disposition unless the Judge determines that disclosure would seriously harm his treatment or rehabilitation or would violate a promise of confidentiality. Opportunity to offer evidence in rebuttal shall be afforded the juvenile and his parent, guardian or custodian at dispositional hearing. The Judge may order counsel not to disclose parts of the report to the juvenile or the juvenile's parent, guardian or custodian if the Judge finds that disclosure would seriously harm the treatment or rehabilitation of the juvenile or would violate a promise of confidentiality given to a source of information.

Sec. 7A-51. Dispositional hearing.

The dispositional hearing may be informal, and the Judge may consider written reports or other evidence concerning the needs of the juvenile. The juvenile and his parent, guardian or custodian shall have an opportunity to present evidence and they may advise the Judge concerning the disposition they believe to be in the best interest of the juvenile. The Judge may exclude the public from the hearing unless the juvenile moves that the hearing be open, which motion shall be granted.

Sec. 7A-52. Purpose.

(a) The purpose of the disposition in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the Tribe in exercising jurisdiction. If possible, the initial approach should involve working with the juvenile and his family in their own home so that the appropriate community resources may be involved in care, supervision and treatment according to the needs of the juvenile. Thus, the Judge should arrange for the appropriate community-level services to be provided to the juvenile and his family in order to strengthen the home situation.

(b) In choosing among statutorily permissible dispositions for a delinquent juvenile, the Judge shall select the least restrictive disposition both in terms of kind and duration, that is appropriate to the seriousness of the offense, the degree of culpability indicated by the circumstances of the particular case and the age and prior record of the juvenile. A juvenile should not be committed to training school or to any other institution if he can be helped through community-level resources.

Sec. 7A-53. Dispositional alternatives for delinquent juvenile.

The court exercising jurisdiction over a juvenile who has been adjudicated delinquent may use the following alternatives:

(1) In the case of any juvenile who needs more adequate care or supervision or who needs placement, the judge may:

a. Require that a juvenile be supervised in the juvenile's own home by the Eastern Band of Cherokee Indians Juvenile Services, a court counselor, or other personnel may be available to the parent, guardian, or custodian or the juvenile as the judge may specify; or

b. Place the juvenile in the custody of a parent, guardian, custodian, relative, agency offering placement services, or some other suitable person; or

c. Place the juvenile in the custody of the Eastern Band of Cherokee Indians Juvenile Services.

(2) Excuse the juvenile from compliance with the compulsory school attendance law when the court finds that suitable alternative plans can be arranged by the family through other community resources for one of the following:

a. An education related to the needs or abilities of the juvenile including vocational education or special education;

b. A suitable plan of supervision or placement; or

c. Some other plan that the court finds to be in the best interests of the juvenile.

(3) Order the juvenile to cooperate with a community-based program, an intensive substance abuse treatment program,or a residential or nonresidential treatment program. Participation in the programs shall not exceed 12 months.

(4) Require restitution, full or partial, payable within a 12-month period to any person who has suffered loss or damage as a result of the offense committed by the juvenile. The court may determine the amount, terms, and conditions of the restitution. If the juvenile participated with another person or persons, all participants should be jointly and severally responsible for the payment of restitution; however, the court shall not require the juvenile to make immediate restitution if the juvenile satisfies the court that the juvenile does not have, and could not reasonably acquire, the means to make restitution.

(5) Impose a fine related to the seriousness of the juvenile's offense. If the juvenile has the ability to pay the fine, it shall not exceed the maximum fine for the offense if committed by an adult.

(6) Order the juvenile to perform up to 100 hours supervised community service consistent with the juvenile's age, skill, and ability, specifying the nature of the work and the number of hours required. The work shall be related to the seriousness of the juvenile's offense and in no event may the obligation to work exceed 12 months.

(7) Order the juvenile to participate in the victim-offender reconciliation/mediation program.

(8) Place the juvenile on probation under the supervision of a court counselor and impose any combination of the following conditions:

a. That the juvenile remain on good behavior;

b. That the juvenile shall not violate any laws;

c. That the juvenile not violate any reasonable and lawful rules of a parent, guardian or custodian;

d. That the juvenile attend school regularly;

e. That the juvenile maintain passing grades in up to four courses during each grading period and meet with the court
counselor and a representative of the school to make a plan for how to maintain those passing grades;

f. That the juvenile not associate with specified persons or be in specified places;

g. That the juvenile refrain from use or possession of any alcoholic beverage or controlled substance as described in section 14-25.2 of the Cherokee Code;

h. That the juvenile abide by a prescribed curfew;

i. That the juvenile submit to a warrantless search at reasonable times;

j. That the juvenile submit to substance abuse monitoring and treatment;

k. That the juvenile cooperate with electronic monitoring;

l. That the juvenile participate in a life skills or an educational skills program;

m. That the juvenile possess no firearm, explosive device, or other deadly weapon;

n. That the juvenile report to a court counselor as often as required by the court counselor;

o. That the juvenile make specified financial restitution or pay a fine;

p. That the juvenile be employed regularly if not attending school; and

q. That the juvenile satisfy any other condition determined appropriate by the court

(9) Prohibit the juvenile from operating a motor vehicle for as long as the court retains jurisdiction over the juvenile or for any shorter period of time;

(10) Impose a curfew upon the juvenile;

(11) Order that the juvenile not associate with specified persons or be in specified places;

(12) Impose confinement on an intermittent basis in an approved detention facility. Confinement shall be limited to not more than five 24-hour periods, the timing of which is determined by the court in its discretion.

(13) Order that the juvenile be confined in an approved juvenile detention facility for a term of up to 14 24-hour periods, which confinement shall not be imposed consecutively with intermittent confinement pursuant to subsection (12) of this section at the same dispositional hearing. The timing of this confinement shall be determined by the court in its discretion.

(14) Order the juvenile to cooperate with placement in a wilderness program.

(15) Order the juvenile to cooperate with placement in a residential treatment facility, an intensive nonresidential treatment program, an intensive substance abuse program, or in a group home, including but not limited to the Cherokee Children's Home.

(16) Order the juvenile to cooperate with a supervised day program requiring the juvenile to be present at a specified place for all or part of every day or of certain days. The court also may require the juvenile to comply with any other reasonable conditions specified in the dispositional order that are designed to facilitate supervision.

(17) Order the juvenile to participate in a regimented training program.

(18) Order the juvenile to be placed on house arrest.

(19) Suspend imposition of a more severe, statutorily permissible disposition with the provision that the juvenile meet certain conditions agreed to by the juvenile and specified in the dispositional order. The conditions shall not exceed the allowable dispositions for the level under which disposition is being imposed.

(20) Order the residential placement of a juvenile in a multipurpose group home.

(21) Place the juvenile in a training school for a period of not less than six months.

(Ord. No. 289, 7-17-00)

Sec. 7A-53A. Dispositional alternatives for undisciplined juveniles.

The following alternatives for disposition shall be available to the court exercising jurisdiction over a juvenile who has been adjudicated undisciplined. The court may combine any of the applicable alternatives when the court finds it to be in the best interests of the juvenile:

(1) In the case of any juvenile who needs more adequate care or supervision or who needs placement, the judge may:

a. Require that the juvenile be supervised in the juvenile's own home by a court counselor, or other personnel as may be available to the court, subject to conditions applicable to the parent, guardian, or custodian or the juvenile as the judge may specify; or

b. Place the juvenile in the custody of a parent, guardian, custodian, relative, residential agency offering placement services, or some other suitable person; or

c. Place the juvenile in the custody of the Cherokee Children's Home, or other similar type facility.

(2) Place the juvenile under the protective supervision of a court counselor so that the counselor may:

(i) Assist the juvenile in securing social, medical, and educational services; and

(ii) Visit and work with the family as a unit to ensure the juvenile is provided proper supervision and care.

This supervision may be issued for a period of up to three months, with an extension of an additional three months in the discretion of the court. In addition, the court may impose any combination of the following conditions which may relate to the needs of the juvenile, including:

a. That the juvenile remain on good behavior and not violate any laws;

b. That the juvenile attend school regularly;

c. That the juvenile maintain passing grades in up to four courses during each grading period and meet with the court counselor and a representative of the school to make a plan for how to maintain those passing grades;

d. That the juvenile not associate with specified persons or be in specified places;

e. That the juvenile abide by a prescribed curfew;

f. That the juvenile report to a court counselor as often as required by the court counselor;

g. That the juvenile be employed regularly if not attending school; and

h. That the juvenile satisfy any other conditions determined appropriate by the court.

(3) Excuse the juvenile from compliance with the compulsory school attendance law when the court finds that suitable alternative plans can be arranged by the family through other community resources for one of the following:

a. An education related to the needs or abilities of the juvenile including vocational education or special education;

b. A suitable plan of supervision or placement; or

c. Some other plan that the court finds to be in the best interests of the juvenile.

(Ord. No. 289, 7-17-00)

Sec. 7A-54. Authority over parent of juvenile adjudicated as delinquent and undisciplined.

(a) In each case brought pursuant to this chapter, on the date of the arraignment, the court shall identify the parent or parents of the minor or, in their absence, the guardian or other responsible person charged by law with the responsibility for the welfare of the juvenile. It shall be the obligation of such parent or other responsible person to:

(1) Personally attend and assure the attendance of the juvenile at all hearings of the court as well as all meetings with support service agencies occasioned by the action;

(2) Pay a portion or all of any restitution or fines imposed by the court when the court finds the payment by the parent to be in the best interest of justice and rehabilitation. An order to pay restitution or a fine shall be subject to enforcement as a debt to the Tribe and the restitution shall be distributed by the court to the victim(s) of the crime;

(3) Supervise the juvenile's compliance with all orders of the court and conditions of release and probation, including but not limited to curfew, school attendance and general behavior.

(b) If the judge orders medical, surgical, psychiatric, psychological or other evaluations or treatment, the judge may order the parent or other responsible parties to participate in the evaluation or treatment and to pay the cost of the treatment or care ordered.

(c) At the dispositional hearing or subsequent hearing the judge may determine whether the best interests of the juvenile requires that the parent or other responsible party undergo psychiatric, psychological, or other evaluation or treatment or counseling directed toward remedying behaviors or conditions that led to or contributed to the juvenile's adjudication or to the court's decision to remove custody of the juvenile from the parent or other responsible party. If the court finds that the best interests of the juvenile require the parent (or other responsible party) undergo evaluation or treatment, it may order that person to comply with a plan of evaluation or treatment approved by the court or condition legal custody or physical placement of the juvenile with the parent or other responsible party upon that person's compliance with the plan of evaluation or treatment. The cost of such evaluation or treatment will be paid by the parent or other responsible party, unless the court finds that the individual is unable to pay for such evaluation or treatment. In such cases, the court may order the parent or other responsible party to receive evaluation or treatment currently available from the Tribal mental health program.

(d) The Judge may order the parent (or other responsible party) of a juvenile who has been adjudicated undisciplined or delinquent to attend parental responsibility classes if those classes are available on the Qualla Boundary or in the county or neighboring county where the parent or other responsible party resides.

(e) Failure of a parent (or other responsible party) who is personally served to participate in or comply with subsections (a), (b), (c) and (d) may be treated as criminal contempt of court punishable by up to a $1,000 fine and 90 days' imprisonment. It shall be a defense to any such charge of contempt that the parent, or guardian or such other person or persons having custody and control of the juvenile made reasonable efforts to comply.

(Ord. No. 289, 7-17-00)

Sec. 7A-55. Dispositional order/contempt of court.

(a) The dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law. The judge shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition. The terms of the disposition shall include the kind of disposition, the duration, the person who is responsible for carrying out the disposition and the person or agency in whom custody is vested.

(b) Upon motion of the court counselor or on the court's own motion, the court may issue an order directing a juvenile who has been adjudicated delinquent or undisciplined to appear and show cause why the juvenile should not be held in contempt for willfully failing to comply with an order of the court. In the case of a juvenile adjudicated delinquent, the court may amend the dispositional order to include additional alternatives outlined in section 7A-53. In the case of a juvenile adjudicated undisciplined who is held in contempt of court for the first time, the court may order the undisciplined juvenile confined in an approved detention facility for a period not to exceed 24 hours. The second time the undisciplined juvenile is held in contempt, the court may order the juvenile confined in an approved detention facility not to exceed three days. The third time and all subsequent times the undisciplined juvenile is held in contempt, the court may order the undisciplined juvenile confined in an approved detention facility not to exceed five days. The timing of any confinement under this section shall be determined by the court in its discretion. In no event shall an undisciplined juvenile held in contempt pursuant to this section be confined for more than 14 days in one 12-month period. In addition hereto, the court may, in its discretion, order the placement of an undisciplined juvenile into the Cherokee Children's Home or other similar type facility for a period not to exceed three consecutive months.

(Ord. No. 289, 7-17-00)

Sec. 7A-56. Authority to modify or vacate.

(a) Upon motion in the cause or petition and after notice, the Judge may conduct a review hearing to determine whether the order of the court is in the best interest of the juvenile and the Judge may modify or vacate the order in light of changes in circumstances or the needs of the juvenile.

(b) In a case of delinquency, the Judge may reduce the nature or the duration of the disposition on the basis that it exceeds the statutory maximum, was imposed in an illegal manner or is unduly severe with reference to the seriousness of the offense, the culpability of the juvenile, or the disposition given to juveniles convicted of similar offenses.

(c) In any case where the Judge finds the juvenile to be delinquent or undisciplined, the jurisdiction of the court to modify any order or disposition made in the case shall continue during the minority of the juvenile or until terminated by order of the court.

Sec. 7A-57. Right to appeal.

Upon motion of a proper party as defined in section 7A-58 review of any final order of the court in a juvenile matter under this section shall be before the Appellate Division. Notice of appeal shall be given in open court at the time of the hearing or in writing within ten days after entry of the order. However, if no disposition is made within 60 days after entry of the order, written notice of appeal may be given within 70 days after such entry. A final order shall include:

(a) Any order finding absence of jurisdiction,

(b) Any order which in effect determined the action and prevents a judgment from which appeal might be taken,

(c) Any order of disposition after an adjudication that a juvenile is delinquent or undisciplined,

(d) Any order modifying custodial rights.

Sec. 7A-58. Proper parties for appeal.

An appeal may be taken by the juvenile, the juvenile's parent, guardian or custodian/extended family member, the public or private agency. The Tribe's appeal is limited to the following:

(a) Any final order in cases other than delinquency or undisciplined cases,

(b) The following orders in delinquency or undisciplined cases:

(1) An order finding a Tribal law to be unconstitutional,

(2) Any order which terminated the prosecution of a petition by upholding the defense of double jeopardy, by holding that a cause of action is not stated under Tribal law or by granting a motion to suppress.

 
Sec. 7A-59. Disposition pending appeal.

Pending disposition of an appeal, the release of the juvenile, with or without conditions, should issue in every case unless the Judge orders otherwise. For compelling reasons which must be stated in writing, the Judge may enter a temporary order affecting the custody or placement of the juvenile as he finds to be in the best interest of the juvenile or the Tribe.

Sec. 7A-60. Disposition after appeal.

Upon the affirmation of the order of adjudication or disposition of the court by the Appellate Division in the event of such appeal, the Judge shall have authority to modify or alter his original order or adjudication or disposition as he finds to be in the best interest of the juvenile to reflect any adjustment made by the juvenile or change in circumstances during the period of time the appeal was pending. If the modifying order is entered ex parte, the court shall give notice to interested parties to show cause within ten days thereafter as to why the modifying order should be vacated or altered.

Sec. 7A-61. Confidentiality of records.

(a) The Clerk of Court shall maintain a complete record of all juvenile cases filed in his office to be known as the juvenile record, which shall be withheld from public inspection and may be examined only by order of the Judge, except that the juvenile, his parent, guardian, custodian or other authorized representative of the juvenile shall have a right to examine the juvenile's record. The record shall include the summons, petition, custody order, court order, written motions, the electronic or mechanical recordings of the hearing and other papers filed in the proceeding. The recording of the hearing shall be reduced to a written transcript only when notice of appeal has been timely given. After the time for appeal has expired with no appeal having been filed, the recording of the hearing may be erased or destroyed upon the written order of the Judge.

(b) The court counselor shall maintain a record of the cases of juveniles under supervision by court counselors which shall include family background informational reports of social, medical, psychiatric or psychological information concerning a juvenile; interviews with his family; or other information which the Judge finds should be protected from public inspection in the best interest of the juvenile.

(c) The records maintained pursuant to subsection (b) may be examined only by order of the Judge except that the juvenile shall have the right to examine them.

(d) Law enforcement records and files concerning a juvenile shall be kept separate from the records and files of adults except in proceedings when jurisdiction of a juvenile is transferred to Tribal court. Law enforcement records and files concerning juveniles shall be open only to the inspection of the prosecutor, court counselors, the juvenile, his parent, guardian or custodian.

(e) All records and files maintained by the Division of Youth Services shall be withheld from public inspection and shall be open only to the inspection of the juvenile, professionals in that agency who are directly involved in the juvenile's case and court counselors. The Judge authorizing commitment of a juvenile shall have the right to inspect and order the release of records maintained by the Division of Youth Services on that juvenile.

(f) Disclosure of information concerning any juvenile under investigation or alleged to be within the jurisdiction of the court that would reveal the identity of that juvenile is prohibited except that publication of pictures of runaways is permitted with the permission of the parents.

(g) Nothing in the section shall preclude the necessary sharing of information among authorized agencies.

Sec. 7A-62. Expunction of records of juveniles adjudicated delinquent and undisciplined.

(a) Any person who has attained the age of 18 years may file a petition in the court where he was adjudicated undisciplined for expunction of all records of that adjudication.

(b) Any person who has attained the age of 18 years may file a petition in the court where he was adjudicated delinquent for expunction of all records. Such petition shall be filed no sooner than two years after termination of the court's jurisdiction over the petitioner. The petition may be granted in the court's discretion provided the person has not subsequently been adjudicated delinquent or convicted as an adult of any felony or misdemeanor other than a traffic violation under the laws of the Tribe or any state.

(c) The petition shall contain, but not be limited to, the following:

(1) An affidavit by the petitioner that he has been of good behavior since the adjudication, that he has not subsequently been adjudicated delinquent or convicted as an adult of any felony or misdemeanor other than a traffic violation under the laws of the Tribe or any state.

(2) Verified affidavits of two persons, who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which he lives and that his character and reputation are good.

(3) A statement that the petition is a motion in the cause in the case wherein the petitioner was adjudicated delinquent or undisciplined.

The petition shall be served upon the prosecutor. The prosecutor shall have ten days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing on the petition.

(d) If the Judge, after hearing, finds that the petitioner satisfies the conditions set out in subsections (a) and (b), he shall order and direct the Clerk of Court and all law enforcement agencies to expunge their records of the adjudication including all references to arrests, complaints, referrals, petitions, and orders.

(e) The Clerk of the Court shall forward a certified copy of the order to the Chief of Police or other law enforcement agency.

(f) Records of a juvenile adjudicated delinquent or undisciplined being maintained by a court counselor/intake counselor shall be retained or disposed of by the court.

(g) Records of juveniles adjudicated delinquent or undisciplined being maintained by personnel at a residential facility operated by the Division of Youth Services shall be retained or disposed of as provided by this section.

(Ord. No. 289, 7-17-00)

Sec. 7A-63. Effect of expunction.

(a) Whenever a juvenile's record is expunged, with respect to the matter in which the record was expunged, the juvenile who is the subject of the record and his parent may inform any person or organization including employers, banks, credit companies, insurance companies and schools that he was not arrested, he did not appear before the court and he was not adjudicated delinquent or undisciplined.

(b) Notwithstanding subsection (a), in any criminal or delinquency case if the juvenile is the defendant and chooses to testify or if he is not the defendant but is called as a witness, the juvenile may be ordered to testify with respect to the fact that he was adjudicated delinquent.

Sec. 7A-64. Notice of expunction.

Upon expunction of a juvenile's record the Clerk of the Court shall send a written notice to the juvenile at his last known address informing him that the record has been expunged and with respect to the matter involved, the juvenile may inform any person that he has no record. The notice shall inform the juvenile further that if the matter involved is a delinquency record, the juvenile may inform any person that he was not arrested or adjudicated delinquent except that upon testifying in a criminal or delinquency proceeding, he may be required by a Judge to disclose that he was adjudicated delinquent.

(Res. No. 232, 7-31-1984; Ord. No. 439, 5-8-1985; Ord. No. 540, 7-6-1989)

Sec. 7A-65. Curfew.

(a) A curfew is imposed upon all persons under the age of 16 from 9:00 p.m. to 6:00 a.m., who are prohibited from being upon any public road or public place on the Cherokee Reservation during those hours, unless:

(1) Such minor person is accompanied by a parent, guardian or other adult who stands in the position of a parent to the minor, or

(2) Such minor person is attending or going directly to or from some legitimate group, school, church, or Community Club meeting or activity.

(b) The Cherokee Police Department shall take into custody any minor person who shall violate this curfew and hold the minor until they may be returned to their parent or guardian.

(Res. No. 830, 12-10-1964)

Sec. 7A-66. Emergency foster care.

(a) The Cherokee Court shall have authority to exercise emergency placement of children residing on the Cherokee Indian Reservation into emergency foster care homes for a period of up to 72 hours.

(b) The Social Service Committee shall have authority to license emergency foster care homes. Licensing procedures and standards shall be established in the "Emergency Foster Care Operating Standards and Minimum Licensing Procedures Manual" approved and adopted by the Tribal Council.

(c) The Cherokee Emergency Foster Care Program shall be directed by the Cherokee Children's Home Board.

(Res. No. 362, 8-14-1975; Res. No. 276, 8-6-1982; Res. No. 277, 8-6-1982)

ARTICLE VI. MEDICAL TREATMENT OF JUVENILES

Sec. 7A-67. When physician may treat minor without consent of parent, guardian or person in loco parentis.

It shall be lawful for any physician licensed to practice medicine as required by EBCI (or other licensed health care provider acting under the direction of such physician) to render treatment to any minor (i.e., any person under 18 years of age) without first obtaining the consent and approval of either the father or mother of said child, or any person acting as guardian, or any person standing in loco parentis to said minor where:

(1) The parent or parents, the guardian, or a person standing in loco parentis to said minor cannot be located or contacted with reasonable diligence during the time within which said minor needs to receive the treatment herein authorized; or

(2) Where the identity of the minor is unknown, or where the necessity for immediate treatment is so apparent that any effort to secure approval would delay the treatment so long as to endanger the life of said minor; or

(3) Where an effort to contact a parent, guardian, or person standing in loco parentis would result in a delay that would seriously worsen the physical condition of said minor; or

(4) Where the parents refuse to consent to a procedure, and the necessity for immediate treatment is so apparent that the delay required to obtain a court order would endanger the life or seriously worsen the physical condition of the minor. No treatment shall be administered to a minor over the parent's objection as herein authorized unless the physician shall first obtain the opinion of another physician licensed to practice medicine that such procedure is necessary to prevent immediate harm to the minor.

Provided, however, that the refusal of a physician to use, perform or render treatment to a minor without the consent of the minor's parent, guardian, or person standing in the position of loco parentis, in accordance with this article, shall not constitute grounds for civil action or criminal proceedings against such physician.

(Ord. No. 818, 5-19-2003)

Sec. 7A-68. Minor's consent sufficient for certain medical health services.

(a) Any minor may give effective consent to a physician licensed to practice medicine (as required by the EBCI) for the prevention, diagnosis and treatment of:

(1) Venereal disease and other diseases reportable under N.C.G.S. 130A-135;

(2) Pregnancy;

(3) Abuse of controlled substances or alcohol; and

(4) Emotional disturbance.

This section does not authorize the inducing of an abortion or performance of a sterilization operation.

(b) Any minor who is emancipated may consent to any medical treatment, dental and health services for himself or for his child.

(Ord. No. 818, 5-19-2003)

Sec. 7A-69. Responsibility, liability and immunity of physicians.

(a) Any physician licensed to practice medicine as required by EBCI (or other licensed health care provider acting under the direction of such physician) provided health services to a minor under the terms, conditions and circumstances of this article shall not be held liable in any civil or criminal action for providing such services without having obtained permission from the minor's parent, legal guardian, person standing in loco parentis, or a legal custodian other than a parent when granted specific authority in a custody order to consent to medical or psychiatric treatment. The physician shall not be relieved on the basis of this article from liability for negligence in the diagnosis and treatment of a minor.

(b) The physician shall not notify a parent, legal guardian, person standing in loco parentis or a legal custodian other than a parent when granted specific authority in a custody order to consent to medical or psychiatric treatment, without the permission of the minor, concerning the medical health services set out in section 7A-68, unless the situation in the opinion of the attending physician indicates that notification is essential to the life or health of the minor. If a parent, legal guardian, person standing in loco parentis, or a legal custodian other than a parent when granted specific authority in a custody order to consent to medical or psychiatric treatment contacts the physician concerning the treatment or medical services being provided to the minor, the physician may give information.

(Ord. No. 818, 5-19-2003)

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