Title
8. Family/Children's Code
Chapter 11. Child Abuse
Title 8. Family/Children's Code, Chapter 11. Child Abuse
Article
I - General Provisions
Article II - Reporting Abuse, Neglect and Abandonment
Article III - Investigation and Hearing Procedures
Article IV - Removal and Placement
Article V - Miscellaneous
ARTICLE I. GENERAL PROVISIONS
SECTION 101. POLICY
To further
the interests of the Tribe in protecting its children from abuse, and
to facilitate the use of the Indian Child Welfare Department to prevent
further abuse and stabilize the family, the Pit River Tribal Council
finds that it is necessary and in the public interest to require mandatory
reports and investigations of abuse of children.
SECTION 102. JURISDICTION
The Pit
River Tribal Children's Court shall have exclusive original jurisdiction
over all matters involving children as defined herein.
SECTION 103. LAW ENFORCEMENT ASSISTANCE
Whenever
this Code, or any action taken pursuant to this Code, requires the assistance
of law enforcement personnel, such assistance may be provided by the
Pit River Tribal Police; moreover, law enforcement personnel from other
jurisdictions (city, county, state, federal or other tribal) are hereby
expressly authorized to provide such assistance where required and requested,
and where such assistance would not otherwise conflict with said law
enforcement personnel's jurisdiction and/or grant of authority.
SECTION 104. DOMICILE AND RESIDENCE
A child
is conclusively presumed to be a resident or domicile of the country,
state and/or tribe of the custodial parent and if there is no custodial
parent then of the mother. A child's domicile or residence shall not
be changed for the purpose of divesting the Pit River Tribal Court of
its jurisdiction over a child. The court may restrain such a removal,
as it deems necessary to protect the best interests of the child.
SECTION 105. PARENT RESPONSIBLE FOR ACTS OF CHILD
A parent
is responsible for the acts of his or her child, regardless of that
parent's status as a non-custodial parent, and shall pay any court ordered
restitution. The court may modify the amount or type of restitution,
as justice requires.
ARTICLE II. REPORTING ABUSE, NEGLECT AND ABANDONMENT
SECTION 201. OBLIGATION TO REPORT CHILD ABUSE, NEGLECT AND ABANDONMENT
Any physician,
registered nurse, licensed practical nurse, community health representative,
mental health professional, other health professional, staff of a residential
care facility or group home, school principal, teacher or teacher's
aide, social worker, foster care worker, law enforcement officer, or
juvenile officer having reasonable cause to believe that a child is
being or has recently been abused, neglected, or abandoned as defined
in Chapter 2 of this Title, shall immediately report such abuse to a
tribal official designated by the Children's Court and approved by the
Tribal Council. Reports from persons not obligated to report are encouraged.
SECTION 202. IMMUNITY FOR GOOD FAITH REPORTS
Any person
who in good faith makes a report pursuant to this Chapter or who testifies
in any judicial proceeding arising from such report shall be immune
from any civil or criminal liability because of such report or testimony.
SECTION 203. PENALTIES FOR REPORTS MADE IN BAD FAITH AND FAILURE
TO REPORT
Any person
who fails to report a charge of abuse or makes a report pursuant to
this Chapter in bad faith for the purpose of harassing those identified
in the report, without reasonable cause to believe the report is true,
shall be punished by a fine not to exceed $1,000.00. This Section does
not preclude any criminal charges.
ARTICLE III. INVESTIGATION AND HEARING PROCEDURES
SECTION 301. WHOM TO REPORT TO
In all
cases of reported abuse or neglect, when local law enforcement receives
a report, it will notify the Indian Child Welfare Department. When the
Indian Child Welfare (ICW) Department receives a report of abuse, it
will notify local law enforcement.
SECTION 302. CONTENTS OF REPORT
Pursuant
to the Indian Child Protection and Family Violence Prevention Act, 25
U.S.C. § 3201-3211, and 18 U.S.C. § 1169, the following procedures
shall be followed for reporting child abuse or neglect.
(A)
Whenever the law enforcement agency or Child Protective Services receive
an initial report or referral from any person of the neglect or abuse
of a child in Indian country or actions which would reasonably be
expected to result in the neglect or abuse of a child in Indian country,
the receiving agency shall:
(1)
Immediately notify the appropriate officials of the other agency
and the Tribal Prosecutor of such report and information, and
(2)
Submit a copy of the written preliminary report required under subsection
(C) of this Section to such agency and office.
(B)
Where an initial report or referral of abuse involves an Indian child
or where the alleged abuser is an Indian and the preliminary report
indicates that a criminal violation has occurred, the law enforcement
agency shall immediately report such occurrence to the Federal Bureau
of Investigation or appropriate state law enforcement agency.
(C)
The report may be made orally or in writing and shall contain as much
of the following information as is known to the person making the
report: the name, address, and age of the child, the name and address
of the alleged perpetrator of the abuse, the nature and extent of
the abuse, and any other pertinent information.
SECTION 303. DUTY TO INVESTIGATE; NOTICE TO PARENTS; PHYSICAL EXAMINATION;
CHILD'S CONSENT
(A) Upon
receipt of an oral report of abuse or neglect, local law enforcement
or Indian Child Welfare shall immediately cause an investigation to
be made to determine the nature and extent of the abuse or neglect.
(B)
If an investigation determines that abuse or neglect has occurred,
local law enforcement or Indian Child Welfare shall take appropriate
action, including, but not limited to, taking the child into protective
custody, provision of remedial services or the filing of a petition
for a dependent child.
(C)
If a child is taken into protective custody, the removing agency shall
take reasonable steps to immediately notify the parent and custodian,
regardless of the time of day, that the child has been taken into
custody, the reasons why, and general information about the child's
placement.
(D)
If the investigation determines that the abuse has resulted in a criminal
violation and the child is an Indian or the suspected abuser is an
Indian, the Federal Bureau of Investigation shall be notified.
(E)
If a local law enforcement officer or Indian Child Welfare employee,
when taking a child into protective custody, has reasonable cause
to believe that the child has been abused physically or sexually,
and that evidence of the abuse exists and is likely to disappear;
he or she may petition the court, ex parte, to allow a physical examination
for the purposes of preserving evidence, if the court finds it in
the best interest of the child to have such an exam. However, a child
of 11 years of age, or older, may refuse to consent to such an exam.
If such an exam is ordered and consented to, it shall be conducted
by a physician or licensed nurse trained to conduct such an investigation.
SECTION 304. INVESTIGATION OF REPORTS
(A) The
official to whom the report is made shall inform the tribal prosecutor.
The prosecutor shall assign the case for investigations to a tribal
social worker, a court investigator, and/or a police officer as appropriate.
In the alternative, the prosecutor may ask appropriate Bureau of Indian
Affairs personnel to conduct an investigation. If the investigation
reveals probable cause that abuse, neglect, or abandonment has occurred,
the procedures outlined in Chapter 2 of this Title shall be initiated.
(B) Within
36 hours after receiving an initial report or referral of child neglect
or abuse, the receiving agency shall prepare a written preliminary
report which shall include, if available: the name, address, age,
and sex of the child who is the subject of the report; the grade and
the school in which the child is currently enrolled; the name and
address of the child's parents or other person responsible for the
child's care; the name and address of the alleged offender; the name
and address of the person who made the report to the agency; a brief
narrative as to the nature and extent of the child's condition or
injuries, including any previously known or suspected neglect or abuse
of the child or the child's siblings and the date of the suspected
neglect or abuse; and any other information the agency or the person
who made the report to the agency believes to be important to the
investigation and disposition of the alleged neglect or abuse.
(C)
Upon receipt of a report alleging neglect or abuse, the Child Protective
Services, in conjunction with the law enforcement agency, shall:
(1)
Convene a Multi-Disciplinary Team ("MDT"), comprised of
personnel with experience and training in prevention, identification,
investigation, cultural awareness and treatment of incidents of
child neglect and abuse and family violence which shall provide
advice, technical assistance and consultation in these areas, and
assist in the investigation of such allegation;
(2)
Take immediate and appropriate steps to secure the safety and well-being
of the child or children involved;
(3)
Provide appropriate services to the family; and
(4)
Complete the investigation and prepare a written final report on
such allegation within fifteen (15) days.
(D)
If the investigation produces evidence that a child has been neglected
or abused by a person other than the parent, guardian/custodian, the
law enforcement agency or Child Protective Services shall immediately
notify the child's parent or other person responsible for the child's
care, and any other appropriate law enforcement authority having jurisdiction
over the suspected neglect or abuse. If the investigation produces
evidence that a child has been abused by an employee of the Tribe,
the law enforcement agency or Child Protective Services shall notify
the director of the appropriate tribal department of such evidence,
and the director may suspend such employee, with or without pay, or
terminate the employee. The employee shall be entitled to pursue any
employment rights provided under the Tribe's personnel policies and
procedures.
(E)
ICW, in conjunction with the law enforcement agency, shall develop
protocols for the reporting, screening, investigation, and treatment
of child neglect and abuse, and to clarify to law enforcement agency
and responsibilities of the tribal departments and agencies involved
in child welfare matters.
SECTION 305. INTERVIEWS AND EXAMINATIONS
(A) In
any case where the law enforcement agency or Child Protective Services
reasonably believe that the child has been subjected to neglect or
abuse, officials of those agencies shall be allowed to take photographs,
x-rays, medical and psychological examinations of the child and interview
the child without first obtaining the consent of the parent, guardian/custodian.
(B)
All examinations and interviews of a child who may have been subjected
to neglect or abuse shall be conducted under the supervision of the
Tribal attorney's office and in a manner that minimizes additional
trauma to the child.
(C)
The expense of such examinations and diagnostic tests shall be paid
by the parents or guardian/custodian of the child, or if they are
unable to pay, by ICW, which may seek reimbursement according to Tribal
law.
SECTION 306. REPORT; PHOTOGRAPHING CHILD DURING INVESTIGATION
(A) The
results of an investigation shall be prepared in a written report
that shall be submitted to Indian Child Welfare within 36 hours of
completion of the investigation. The report shall contain:
(1)
Name, age, sex and address of the child that is the subject of the
report; and
(2)
Grade and the school in which the child is currently enrolled; and
(3)
The name, address and age of the child's parents or other person
responsible for the child's care; and
(4)
The name, address and age of the alleged offender; and
(5)
The name and address of the person making the report; and
(6)
A brief narrative of the nature and extent of the child's injuries,
the dates of the alleged abuse and any previously known or suspected
abuse of the child or of the child's siblings; and
(7)
Any other information that may be important to the investigation
or disposition of the alleged abuse.
(B)
As part of any investigation, local law enforcement or Indian Child
Welfare may photograph any child subject of the investigation for
the purposes of documenting and preserving evidence of the child's
injuries. Photographs so taken shall be made a part of the report.
SECTION 307. PROTECTIVE CARE PETITION
(A) If
the investigation produces evidence that the child has been neglected
or abused and is in need of care, the Tribal Prosecutor shall file
a Protective Care Petition with the Children's Court.
(B) The
Petition shall set forth the following:
(1)
The name, birth date, sex, residence and tribal affiliation of the
child;
(2)
The basis for the Court's jurisdiction;
(3)
A plain and concise statement of the facts upon which the allegations
of neglect or abuse are based, including the date, time and location
at which the alleged neglect or abuse occurred;
(4)
The names, addresses, social security numbers and tribal affiliation
of the child's parents or guardians/custodians, if available;
(5)
The names and addresses of the child's extended family and all former
care givers, if available; and,
(6)
If the child has been placed outside of the home, the facts necessitating
the placement, the date and time of the placement, and where and
with whom the child was placed.
(C)
The Court shall schedule a hearing on the Petition within twenty (20)
days from the date the Petition was filed. Upon petition or its own
initiative, the Court may order that a social study of the child's
home and family or an evaluation of matters relevant to the disposition
of the case be made.
(D)
Upon the filing of the Petition, the Court shall cause a Summons to
be issued requiring the parents and any other persons necessary or
proper to the proceedings to appear in Court at the time and place
named therein. The Summons and Petition shall be personally served
upon the party at least ten (10) days before the scheduled hearing.
If the party to be served is not within the Reservation boundaries
or personal service cannot be effected, the Summons and Petition may
be served by certified or registered mail, with a return receipt requested.
The Summons shall contain the following information:
(1)
Identify the parties and the nature of the proceedings;
(2)
State that the party served shall personally appear before the Court
and respond to the Petition at a specified date and time;
(3)
State that the party has the right to be represented by an attorney/advocate
at her own expense in all proceedings under this Ordinance, to introduce
evidence, to be heard on her own behalf, to examine witnesses, and
to be informed of possible consequences of the proceedings.
SECTION 308. HEARING
(A) The
purpose of the Hearing is to determine whether or not the child is
in need of care and Court intervention and protective supervision
are necessary to protect the best interests of the child.
(B)
The hearing proceedings shall be on the record, but shall be closed
to the general public. General rules of evidence and civil procedure
shall be suspended.
(1)
Any privilege against the disclosure of communications between spouses
shall not apply and either party may testify as to any relevant
matter.
(2)
Evidence that the child has been neglected or abused or has sustained
a non-accidental injury shall constitute prima facie evidence that
shall be sufficient to support an adjudication that such child is
in need of care.
(3)
The child shall be represented by a Guardian Ad Litem ("GAL")
appointed by the Tribal Court to speak on behalf of the best interests
of the child. The GAL shall be knowledgeable about the protective,
social, and medical needs of the child and the child's family. The
GAL's fee shall be paid by the parents or guardian/custodian, or
if such they are unable to pay, by the Court, which may seek reimbursement
according to Tribal law.
(C)
Whenever any party intends to call the child as a witness, it shall
notify the Court no later than five (5) days before the hearing, unless
enforcement agencys good cause is shown for short notice to the Court.
Upon receipt of the notice, the Court may direct the child to be evaluated
by an expert witness to determine if it is asserted that testifying
in person would cause trauma to the child.
(1)
The child may be allowed to testify if such testimony will not cause
serious emotional or psychological harm to the child.
(2)
If the Court determines that such testimony may cause serious emotional
or psychological harm to the child, the child may testify by means
of a videotape deposition or other appropriate method. If the Court
allows these methods to be utilized, the Court shall specifically
set out the reasons for this determination on the record.
(D)
The Court shall hear testimony from the parties and make specific
findings as to whether or not the allegations of the Petition are
supported by the evidence and whether or not the best interests of
the child will be served by Court intervention, protective supervision,
or by removal from her home.
(1)
Whenever removal and foster care placement of a child is recommended,
the Court shall be satisfied that active efforts have been made
to provide remedial and rehabilitation services designed to prevent
the breakup of the family and that these efforts have proved unsuccessful.
(2)
Whenever it appears from the allegations of the Petition, supported
by a preponderance of the evidence, including the testimony of a
qualified expert witness and, if available, the testimony of the
parents or guardian/custodian, that the child's condition or the
circumstances surrounding her care require that her custody be assumed
to safeguard her welfare, the Court shall vest in the ICW or a qualified
person the child's temporary care and custody.
SECTION 309. COURT FINDINGS
(A) The
Court shall enter a written order with specific findings of fact and
conclusions of law.
(B)
If the Court concludes that removal or continued out of the home placement
is not warranted, the child shall be returned immediately to the custody
of her parents, custodian/guardian; provided however, that the Court
may define the terms and conditions for returning the child to her
home, continued Court jurisdiction and protective supervision.
(C) If
the Court finds that removal or continued removal is in the best interests
of the child, the Court shall determine:
(1)
The proper placement of the child;
(2)
The services or treatment to be provided to the child and the child's
family to help address the circumstances underlying the removal;
and
(3)
The terms and conditions for placement of the child, returning the
child to her home, and family visitation.
(D)
Where the evidence demonstrates that the activities of a particular
person in the household are the basis for the Court's finding that
removal of the child is required, the Court may, pursuant to its civil
regulatory authority, issue a restraining order preventing that person
from residing in the residence in lieu of removing the child.
(E) The
expense for any temporary care and custody shall be paid by the parents
or guardian/custodian, or if they are unable to pay, by ICW which
may seek reimbursement according to Tribal law.
ARTICLE IV. REMOVAL AND PLACEMENT
SECTION 401. EMERGENCY REMOVAL
(A) If
a child is in imminent danger from her surroundings and removal from
such surroundings is necessary to insure the child's safety, the law
enforcement agency or Child Protective Services may remove the child
from such surroundings without a Court order and place her in protective
care or a foster home. A child shall be considered to be in imminent
danger when:
(1)
The failure to remove the child may result in an immediate and substantial
risk of death, permanent or serious injury, or serious emotional
harm to the child; or
(2)
The parent, guardian/custodian is absent and it appears from the
circumstances that the child's basic necessities of life are not
being met, and proper arrangements have not been made by the parent,
guardian/custodian to provide for such necessities.
(B)
When a child is removed, the law enforcement agency or Child Protective
Services shall make reasonable efforts to contact a member of the
child's extended family.
(C)
Such removal shall not exceed ninety-six (96) hours, within which
time an Emergency Protective Care Petition shall be filed with the
Court or the child shall be returned to her parent or guardian/custodian.
(D)
If a Petition is filed, the procedures for removal shall be followed,
provided that the Court shall schedule a hearing on the Petition within
ten (10) days from the date the Petition was filed.
SECTION 402. REVIEW OF PLACEMENT AND SUPERVISION
(A) The
Court may exercise continuing jurisdiction over the supervision of
such child custody proceeding for so long as it deems necessary to
protect the child's best interests. The status of all children who
have come within the supervision of the Court shall be reviewed by
the Court at least every three (3) months at a hearing to determine
whether or not the placement conditions have been met and whether
or not Court supervision shall continue.
(B) The
first review following a formal hearing on the Petition shall be held
within forty-five (45) days of the Court's decision.
(C)
If continued Court supervision and intervention is necessary, the
Court shall set forth the following in a written order:
(1)
What services have been provided or offered to the parents or guardian/custodian
to help address the circumstances underlying the removal;
(2)
The extent of the parent or guardian/custodian involvement with
the child or any reason why visitation and/or contact has been infrequent
or not otherwise occurred;
(3)
Whether or not the parents or guardian/custodian have been cooperative
with the Court;
(4)
Whether or not the parents or guardian/custodian should be required
to participate in any additional treatment programs to help correct
the underlying circumstances;
(5)
Define a time frame in which the family can reasonably expect to
be reunited, provided the circumstances underlying the removal have
been satisfactorily addressed; and
(6)
Any additional steps the Court deems necessary and appropriate.
SECTION 403. PLACEMENT PREFERENCES
(B) Whenever
the Court has adjudged a child to be in need of protective or foster
care, the child shall be placed in the least restrictive setting which
most approximates a family and in which her special needs, if any,
may be met. The child shall also be placed within reasonable proximity
to her home, taking into account any special needs of the child. A
placement preference shall be given, in the absence of good cause
to the contrary and taking into consideration the child's age and
maturity, to a placement with:
(1)
Members of the child's family or extended family;
(2)
Other members of the Pit River Tribe;
(3)
A tribally approved foster home or facility for children which has
a program suitable to meet the child's needs;
(4)
Other Indian families.
(C)
Where a child is placed outside of the Tribal community, the Tribal
Court shall include in its order provisions for continuing contact
between the child and the Tribal community.
ARTICLE V. MISCELLANEOUS
SECTION 501. EMERGENCY AUTHORIZATION OF MEDICAL TREATMENT
(A) This
Section shall apply to the emergency removal of a child who is in
imminent danger.
(B)
When a physician indicates that in her professional opinion, the life
of the child would be greatly endangered or that there is a strong
likelihood that the child would suffer permanent and/or serious harm
without specified treatment, the protective or foster care parent
or the Children's Court on an ex parte basis may authorize emergency
medical treatment. Every effort shall be made to contact the child's
parents and ICW before authorization is given. The child's parents
or an extended member of the child's family shall be notified of the
emergency treatment immediately thereafter.
SECTION 502. CHARACTER INVESTIGATIONS
(A) ICW
shall compile a list of all positions which involve regular contact
with, or control over, Indian children.
(B)
ICW shall, in conjunction with the law enforcement agency, conduct
an investigation of the character of each individual who is employed,
or is being considered for employment by the Tribe, in a position
listed in subsection (A) of this Section.
(C)
The minimum standards of character that are to be prescribed under
this Section shall ensure that none of the individuals employed in
any position listed in subsection (A) have been found guilty of, or
entered a plea of no contest or guilty to, any offense under federal,
state or tribal law involving crimes of violence, sexual assault,
molestation, exploitation, contact or prostitution, or crimes against
persons.
SECTION 503. CENTRAL REGISTRY OF REPORTS; CONFIDENTIALITY OF RECORDS
(A) When
an investigation has shown reasonable cause to believe that a child
was abused or neglected, regardless if the cause is known, such incident,
together with the name of the child and the family shall be reported
to the Central Registry of Child Abuse in Indian Country, pursuant
to 25 U.S.C. § 3204, or in the absence of such registry, to the
central registry for the State of California.
(B)
Notwithstanding any other provision of law, any and all reports of
child abuse or neglect shall be kept confidential except when reports
are required to be shared between tribal, federal and state agencies
or as provided in subsection (C) of this section.
(C)
Indian Child Welfare shall release records of child abuse and neglect,
except the name of an individual reporting, to:
(1)
Any law enforcement agency or child abuse registry of another tribe
or state for the purposes of subsequent investigation of child abuse
or neglect; or
(2)
A physician requesting such information for the purposes of examination,
care or treatment of a child who is the subject of a report; or
(3)
The attorney of record for a child, parent or custodian in any proceeding
involving the child; or
(4)
A guardian ad litem, CASA, or court approved spokesperson for a
child, parent or custodian in any proceeding involving the child;
or
(5)
A tribal or state child care licensing agency, but in such instance,
only the name of the person suspected of abusing the child shall
be released.
(D)
Indian Child Welfare may release a report of abuse or neglect to any
person or agency when it has determined that such disclosure is necessary
to investigate, prevent or treat child abuse and neglect, and that
such disclosure is in the best interests of the affected child. A
disclosure may also be made for research and statistical purposes
if all names of the child, child's family and alleged abuser are removed
from the reports to be released.
(E)
All records released under this section shall maintain their confidential
nature and shall be kept confidential by the person or agency receiving
such reports. Indian Child Welfare may refuse any request under subsections
(A) to (D) of this section for records, after Indian Child Welfare
has made a determination that the person or agency receiving the reports
does not have sufficient control of the records to ensure confidentiality
or has inappropriately released confidential material in the past.
(F)
A person who violates subsection (A) or (E) of this section commits
a violation punishable by a fine not to exceed $1000.00.
SECTION 504. MODIFICATION, REVOCATION OR EXTENSION OF COURT ORDERS
(A) Upon
a motion of any party to the proceeding or any other person or entity
who would have had the right to be a party to the proceeding, the
Court may conduct a hearing to modify, revoke or extend a Court order
made under this Ordinance.
(B)
Any hearing to modify, revoke or extend a Court order shall be held
in accordance with the procedures established by the Tribal Court.
SECTION 505. APPEALS
Appeals
from decisions by the Children's Court under this Ordinance may be made
by any party in accordance with the rules governing the Appellate Court
of the Pit River Tribe.
SECTION 506. CERTAIN EVIDENTIARY PRIVILEGES WAIVED IN CHILD ABUSE
CASES
In any
judicial proceeding resulting from a report of abuse or neglect, any
privilege between husband and wife, psychotherapist-patient, physician-patient,
nurse-patient, social worker-client or to staff members of schools shall
not be grounds to exclude evidence regarding child abuse or neglect,
or the cause thereof.
SECTION 507. GRANDPARENT VISITATION
The court
shall determine the rights of a grandparent under Chapter 4, Annulment,
Divorce and Child Custody, to have visitation with a grandchild when
ordering an out of home placement for a child. Such visitation shall
be continued unless the court finds that such visitation is not in the
best interests of the child.
SECTION 508. SEVERABILITY
The provisions
of this Chapter are severable. If any provision of this Chapter or its
application to any person or proceeding is declared invalid for any
reason, such declaration shall not affect the validity of the remaining
portions of this Chapter.
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