Subchapter 3 - Child Abuse and Neglect | Mille Lacs Band of Ojibwe

Section

3141. Social Workers.
3142. Child Protection Team.
3143. Duty to Report Child Abuse and Neglect.
3144. Investigation and Removal.
3145. Welfare-Check Warrant.
3146. Alternatives to Court Action and Removal.
3147. Notice of Removal.
3148. Restrictions on Placement of Children.
3149. Active Efforts Required.
3150. Filing A Child in Need of Protection or Services (CHIPS) Petition.
3151. Court Hearings Required.
3152. Initial Hearing.
3153. Notification of Rights.
3154. Admit/Deny Hearing.
3155. Formal Trial on the Issues.
3156. Notice of Formal Trial on the Issues.
3157. Default Judgment.
3158. Six (6) Month Review.
3159. Concurrent Permanency Planning.
3160. Transfer of Custody.
3161. Permanency Hearing.
3162. Waiver of Timelines.
3163. Family Services Report.
3164. Family Testimony or Report.
3165. Placement Preferences.
3166. Case Plan.
3167. Change in Placement or Visitation.
3168. Emergency Placement Report and Hearing.

§ 3141. Social Workers.

(a) Social Workers shall be employed by the Band Family Services department.
(b) Family Services may cooperate with such state and community agencies as are necessary to achieve the purposes of this chapter. Family Services may negotiate working agreements with other jurisdictions. Such agreements shall be subject to ratification by the Band Assembly.
(c) A Social Worker shall as soon as practicable following the filing of a petition:
- (1) Receive reports from any source, written or oral, of Children in Need of Protection or Services and be prepared to provide temporary foster care for such children on a twenty-four (24) hour basis; and
- (2) Upon receipt of any report or information under subparagraph (1) of this paragraph immediately:
  - (i) notify the appropriate law enforcement agency, and
  - (ii) make prompt and thorough investigation that shall include a determination of the nature, extent, and cause of any condition that is contrary to the child’s best interests and the name, age, and condition of other children in the home.
- (3) Take the child into temporary custody if there are reasonable grounds to believe that the child is suffering from illness or injury that would cause substantial harm to the child without intervention or is in immediate danger from his surroundings and that his removal is necessary. Law enforcement officials shall cooperate with Family Services personnel to remove a child from the custody of his parents, guardian, or custodian when necessary.
- (4) After investigation, evaluate and assess the home environment of the child or children in the same home and the risk to such children if they continue to be subjected to the existing home environment, and all other facts or matters found to be pertinent. They shall determine and document whether any of such children are a Child in Need of Protection or Services.
- (5) Offer to the family of any child found to be in need of protection or appropriate services that may include, but shall not be restricted to, protective services, and document such offer(s).
- (6) Within thirty (30) days after a referral of a potential Child in Need of Protection or Services, submit a written report of the investigation and evaluation to the Solicitor General and to a central registry maintained by Family Services which shall include a determination as to whether the report was substantiated or unsubstantiated.
  - (i) During the investigative stage, no child shall remain in temporary custody for a period exceeding seventy-two (72) hours, excluding Saturdays, Sundays and holidays, unless a Child in Need of Protection or Services petition is filed.
  - (ii) Before offering protective services to a family, a Social Worker shall inform the family that he has no legal authority to compel the family to receive such services and of his authority to initiate a petition in Court.
  - (iii) If the family declines the offered services, the Social Worker shall recommend to the Solicitor General that a Child in Need of Protection or Services petition be filed in Court if he believes it to be in the child’s best interest.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 6.
Band Ordinance 31-17.

§ 3142. Child Protection Team.

(a) The Mille Lacs Band shall establish a Child Protection Team. The Child Protection Team is established to prevent Indian children from being abused or neglected through the involvement and coordination of various agencies. In cases where children have been abused or neglected, efficient and effective protective services shall be provided so as to immediately secure the children’s safety and health. Follow-up actions shall then be taken to stabilize the circumstances for the long-term benefit of the children and, to the extent possible, their family members.
(b) Prevention of child abuse and neglect is to be emphasized. The child protection team is intended to facilitate the identification of danger signs that will prompt immediate intervention and/or preventive actions to be taken. However, when a child’s well-being is found to be endangered, the child protection team should recommend protective services as promptly, efficiently, and effectively as possible. These services are to be provided so as to ensure the child’s immediate safety and health. Once attained, to the extent possible, actions are to be taken to correct the problems that caused the abuse or neglect and prevent it from occurring again. The child protection team should facilitate the development and implementation of a plan to promote the long-term well-being of the child and the appropriate family members.
(c) The child protection team is technical and advisory in nature. In no way is it intended to undermine the authorities and responsibilities of individual agencies. It is designed to promote cooperation, communication, and consistency among agencies. It is appropriate for the child protection team to debate what actions would best promote the well-being of a child and provide relevant information and advice to decision-making agencies. Confidentiality shall be maintained by all child protection team members.
(d) The Child Protection Team may consist of behavioral health professionals, chemical dependency counselors, Tribal police officers, school psychologists, Band Family Services staff and advocates, and Tribal Court guardians ad litem, and must include one elder who actively follows and practices Band spirituality. The Child Protection Team may include County Social Services staff and County Police officers by invitation. The Child Protection Team may include, wherever possible, a member of the child’s own family who is a positive role model to the child.
(e) The duties of the child protection team shall include the development and implementation of procedures for facilitating provision of services such as:
- (1) Identifying available community resources, programs and services;
- (2) Providing recommendations to various pertinent agencies;
- (3) Promoting cooperation, communication, and consistency among agencies;
- (4) Maintaining confidentiality of information.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 7.
Band Ordinance 31-17.

§ 3143. Duty to Report Child Abuse and Neglect.

(a) Duty to Report. Any person who has a reasonable cause to suspect that a child has been abused, neglected or abandoned should immediately report the abuse, neglect or abandonment to the Band Family Services department and/or Band Law Enforcement.
(b) Persons Specifically Required to Report. Those persons who are mandated to report suspected abuse or neglect include any physician, nurse, dentist, optometrist, or any other medical or mental health professional; school principal, school teacher, or other school official; social worker; child day care center worker or other child care staff including foster parents, residential care or institutional personnel, counselor; peace officer or other law enforcement official; judge, juvenile counselor, clerk of Court, Solicitor General or other judicial system official.
(c) Anonymous Reports. Any person who has reasonable cause to suspect that a child has been abused, neglected or abandoned, should report the abuse, neglect or abandonment. Those persons reporting, except those specified in paragraph (b) of this section, may remain anonymous.
(d) Immunity from Liability. All persons or agencies reporting, in good faith, known or suspected instances of child abuse or neglect shall be immune from civil liability and criminal prosecution.
(e) Malicious and Reckless Reports. Any person who knowingly or recklessly makes a false report under the provisions of this section shall be liable in a civil suit for any actual damages suffered by the person or persons so reported and for any punitive damages set by the Court or jury, plus costs and reasonable attorney fees.
(f) Penalty for Not Reporting. Those persons mandated to report a case of known or suspected abuse or neglect who knowingly fail to do so or willfully prevent someone else from doing so shall be subject to a civil cause of action pursuant to 24 MLBS § 1211 in the Court of Central Jurisdiction.
(g) Abuse and Neglect Reports.
- (1) Form of Report: Those persons mandated to report under paragraph (b) of this section shall promptly make an oral report to the Mille Lacs Band Family Services Department and then make a written report within forty-eight (48) hours. Reporters are encouraged to provide a written report as soon as possible within the 48-hour timeframe.
- (2) Contents of Written Report: The following information shall be included in the written report:
  - (i) Names, addresses, and tribal affiliation of the child and his parents, guardian, or custodian.
  - (ii) The child’s age.
  - (iii) The nature and content of the child’s abuse and neglect.
  - (iv) Previous abuse or neglect of the child or his siblings, if known.
  - (v) The name, age, and address of the person alleged to be responsible for the child’s abuse or neglect, if known.
  - (vi) The name and address of the person or agency making the report.
- (3) Failure to technically adhere to the above reporting requirements shall not serve as a justification to refuse performing an investigation.
- (4) Photograph of Visible Trauma: Persons reporting suspected abuse or neglect may photograph or request X-rays to be taken of the child suspected of being abused and such photographs or X-rays may be introduced into evidence at a hearing.
(h) Central Registry.
- (1) The Mille Lacs Band Family Services and Mille Lacs Band Law Enforcement shall maintain a central registry of reports, investigations, and evaluations made under this chapter. The registry shall contain the information given to Family Services by Band personnel throughout the reservation, including protective services workers, probation officers, caseworkers, and Indian Child Welfare Program employees.
- (2) Data shall be kept in the central registry after the case is closed for three (3) years if the allegations are unsubstantiated and for seven (7) years if the allegations are substantiated (unless the Court orders individual records shall be kept on file beyond that date in order to protect other siblings).
- (3) Data and information in the central registry shall be confidential. Any requests for information made by outside social services agencies, public health and law enforcement agencies, licensed health practitioners, and health and educational institutions may be made available only with the approval of the Director of Family Services. Denial of request by Director of Family Services may be reviewed by the Court upon request. A request for the release of information must be submitted in writing, and such request and its approval shall be made part of the child’s file.
- (4) If a person who has made an allegation of abuse requests information on the status of the case, the Mille Lacs Band Family Services Department may only provide information as to whether the allegation was received and investigated. Family Services may not share the status or disposition of the case.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 8.
Band Ordinance 31-17.

§ 3144. Investigation and Removal.

(a) Investigation. The child abuse or neglect report shall be investigated within forty-eight (48) hours of the time that the report is received by the Family Services Department or other appropriate agency, unless the Court directs otherwise.
(b) Authority to Remove. If the Enforcement or Family Services personnel investigating a report of child abuse or neglect finds that the grounds for removal, listed in paragraph (c) of this section have been met, such person may remove the child from the home in which the child is residing and place the child in a temporary placement or other appropriate placement.
(c) Grounds for Emergency Removal. A child shall not be removed from the home of the child’s parents, guardian or custodian without the consent of the parent, guardian or custodian absent a specific order of the Court, except as follows:
- (1) When failure to remove the child may result in a substantial risk of death, permanent injury, or serious emotional harm; or
- (2) When the parent, guardian or custodian is absent and it appears, from the circumstances, that the child is unable to provide for his own basic necessities of life, and that no satisfactory arrangements have been made by the parent, guardian or custodian to provide for such necessities.
(d) Power to Remove. A Social Worker or Law Enforcement Officer shall have the power to remove a child pursuant to this section provided that:
- (1) Reasonable grounds existed at the time of the removal to believe the removal was necessary;
- (2) The person removing the child ensures the safety and well-being of the child, until such time as the Court assumes control of the matter; and
- (3) The person removing the child complies with the notice provisions contained in § 3147 of this chapter.

Historical and Statutory Notes

Source:
Band Ordinance 01-96.
Band Ordinance 31-17.

§ 3145. Child Well-being Warrant.

(a) The Court shall have authority to issue a Child Well-being warrant that enables Tribal Police to enter a home for the purpose of conducting a child welfare safety check and removing a child from the premises if necessary to protect the child’s health, safety or welfare. Before issuing the warrant, the Court must find the following:
- (1) probable cause to believe that child’s health, safety, or welfare is in imminent and substantial danger;
- (2) credible evidence that the child is being held on the premises or property of a person under the jurisdiction of the Court; or
- (3) prior documented attempts to check on the child or produce the child in Court, including placing the child on a 72-hour hold and the use of a Court Order to produce the child have been ignored, unless Family Services can show good cause for requesting a warrant before any prior attempts at contact have been made.
(b) No Child Well-being warrant shall be issued except upon statement of fact sufficient to show probable cause that entry to the premises will discover the child. Such probable cause shall be supported by an affidavit based upon reliable information and particularly describing the premises to be entered. It shall also contain specific dates and times of previous attempts to check on the welfare of the child or to compel the family to produce the child in Court that were refused.
(c) Child Well-being warrants shall only be executed by Tribal Police Officers. The executing Officer may only search those places where a child could be found. Only evidence that is in plain view or discovered while searching in a place where a child could be found may be admissible in Court. The executing officer shall return the warrant to the Court within the time limit shown on the face of the warrant, which in no case shall be longer than ten (10) calendar days from the date of issuance. Warrants not returned within such time limits shall be void.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3146. Preliminary Agreements.

(a) Unsubstantiated Report. When Family Services receives a report of suspected abuse, and finds the allegations unsubstantiated, Family Services may enter into a Voluntary Services agreement with the child, if he is able to understand and meaningfully participate in the development and execution of the agreement, the parent, guardian, or custodian, and other parties. An “unsubstantiated report” means the Social Worker has determined that the interests of the child do not require filing a Child in Need of Protection or Services petition, but the family would benefit from services. This Voluntary Services agreement shall be in writing and signed by the parties.
- (1) If at any time during the period of the Voluntary Services agreement the Social Worker determines that new circumstances exist that may place the child at risk of harm, the Family Services worker may request a new investigation into the said circumstances. This investigation shall be treated as separate and the Voluntary Services agreement may continue unless the new allegations are substantiated and Court intervention becomes necessary.
- (2) The Voluntary Services agreement will remain in effect for up to six (6) months from the date signed, unless either party withdraws consent to the terms.
(b) Substantiated Report, Low Risk. If the Social Worker finds the needs do not rise to the level of necessary removal, but still finds sufficient evidence to substantiate the report and file a Child in Need of Protection or Service Petition, the Court may direct Family Services to enter into a Protective Services agreement with the child, if he is able to understand and meaningfully participate in the development and execution of the agreement, the parent, guardian, or custodian, and other parties.
- (1) A Protective Services agreement may be entered into as an outcome of an Initial Hearing as set out in § 3152 of this chapter. A Protective Services agreement will include a case plan for the child and family to follow. Entering into this agreement will suspend further proceedings in Court as the Family Services Department works with the family to complete the case plan.
- (2) If at any time during the period of the Protective Services agreement Family Services determines the obligations imposed under the agreement are not being met, the Family Services worker may revoke the agreement and shall recommend to the Solicitor General’s Office to proceed with child protection proceedings as if the agreement had never been entered into.
- (3) The Protective Services agreement will remain in effect for up to six (6) months from the date signed, unless the child, parent, guardian, or custodian is discharged sooner. The Family Services Department may extend a protective supervision agreement once for six (6) additional months upon a motion to the Court.
- (4) The Protective Services agreement shall include language regarding the requirement to have a status hearing two (2) weeks prior to its expiration.
- (5) If upon the expiration of the Protective Services agreement, its express terms and conditions have not been fulfilled, the Solicitor General’s Office shall continue forward with a Child in Need of Protection or Services petition as if the agreement had never been entered into.
- (6) The Solicitor General may file an amended petition if the circumstances have changed since the initial filing.
(c) Substantiated Report, Moderate or High Risk. If the Family Services Worker finds that the allegations of the report are substantiated and the risk of harm to the child is moderate or high, the Family Services worker shall proceed with recommendations to the Solicitor General that a Child in Need of Protection or Services petition be filed in accordance with the provisions of this chapter.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3147. Notice of Removal.

(a) Notice to the Court. After a child is removed from his home, the Social Worker or Law Enforcement Officer who removed the child shall attempt to contact the Court within eight (8) business hours. The attempt to contact the Court shall be documented. Actual notice to the Court shall be made, by the removing person, no later than 12:00 p.m. the next Court working day.
(b) Notice to the Parent, Guardian or Custodian. Family Services shall make all reasonable efforts to notify the parents, guardian or custodian within twelve (12) hours of the Court’s actual notice of the child’s removal. Reasonable efforts shall include personal, telephone and written contacts at their residence, place of employment, or other location where the parent, guardian or custodian is known to frequent with regularity. If the parent, guardian or custodian cannot be found, notice shall be given to members of the extended family of the parent, guardian or custodian and/or the extended family of the child.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 10.
Band Ordinance 31-17.

§ 3148. Restrictions on Placement of Children.

A child alleged to be neglected or abused shall not be detained in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be juvenile offenders, but may be placed in the following locations:

(a) A household of a relative of the child who is willing to guarantee to the Court that the child will not be returned to the alleged abusive or neglectful parent, guardian or custodian without the prior approval of the Court and who will be subject to necessary background and home safety checks;
(b) A licensed foster home or a home otherwise authorized under the law to provide foster care, group-care, or serve as a protective residence;
(c) A facility operated by a licensed child welfare services company; or
(d) Any other suitable place, other than a facility for the care and rehabilitation of juvenile offenders to which children adjudicated as juvenile offenders may be confined, and that meets the standards for shelter-care facilities established by the department.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 11.
Band Ordinance 31-17.

§ 3149. Active Efforts Required.

The Court, before determining whether a child should be placed in or continue in foster care or be placed for adoption, shall make a determination as to whether active efforts, as defined in subsection 3103(b), were made to prevent placement or whether active efforts to prevent placement are not required.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3150. Filing a Child in Need of Protection or Services (CHIPS) Petition.

(a) Authorization to File Petition. Formal child protection proceedings shall be instituted by a CHIPS petition filed by the Solicitor General on behalf of the Band and in the best interests of the child.
(b) Time Limitations. If a child has been removed from the home or is subject to a Protective Services Agreement under § 3246(b) of this chapter, a CHIPS petition shall be filed with the Court no later than seventy-two (72) hours following the removal.
(c) Contents of Petition. The CHIPS petition shall set forth the following with specificity:
- (1) The name, birth-date, sex, residence and tribal affiliation of the child;
- (2) The basis for the Court’s jurisdiction;
- (3) The specific allegations that led to filing the petition;
- (4) A plain and concise statement of the facts upon which the allegations of why the child in need of protection or services are based, including the date, time and location at which the alleged facts occurred;
- (5) The names, residences and tribal affiliation of the child’s parents, guardian or custodian, if known;
- (6) The names, relationship and residence of all known members of the child’s extended family and all former care givers, if known; and
- (7) If the child is placed outside of the home, where the child is placed, the facts necessitating the placement and the date and time of the placement.
- (8) Notice to family and extended family members on behalf of the child in placement.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 12.
Band Ordinance 31-17.

§ 3151. Court Hearings Required.

(a) Initial Hearing. An initial hearing in a CHIPS petition shall be held by the end of the second working day following the filing of a CHIPS petition.
(b) Admit/Deny Hearing. A hearing shall be held within 30 days of the Initial Hearing. The purpose of the hearing is for the parents, guardian, or custodian to admit or deny the allegations contained in the Petition and for the Court to reassess whether continuing Court intervention is necessary to protect the well-being of the child.
(c) Formal Trial on the Issues. If the issues are not resolved at the Initial Hearing or Admit/Deny Hearing, the Court will set a date for a formal Trial on the allegations contained in the Petition. The Trial will be no later than ninety (90) days after the filing of the CHIPS petition. Requests for pre-trial hearings may be granted at the Court’s discretion.
(d) Review Hearings. Review Hearings shall be held by the Court no later than once every one hundred twenty (120) calendar days after the adjudication in all CHIPS cases or as needed.

Historical and Statutory Notes

Source:
Band Ordinance 01-96.
Band Ordinance 31-17.

§ 3152. Initial Hearing.

(a) Purpose. The purpose of the initial hearing is to determine whether the petition presents prima facie evidence that the Child is in Need of Protection Services.
(b) Advice of Rights. During the hearing, the Court shall advise the parties of the reason for the hearing and of their basic rights as provided for in § 3153 of this chapter.
(c) Nature of Hearing. The hearing shall be informal in nature. Concerned parties may present evidence or information relating to the situation. Hearsay evidence will not be excluded at this hearing as long as it is otherwise admissible. The general public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, Family Services, the child’s extended family and any other person as determined appropriate by the Court shall be admitted.
(d) Possible Outcomes of the Initial Hearing:
- (1) The CHIPS petition may be dismissed and the child returned to the home with no further intervention from the Band. Custody of the child in this case is returned to the parent or guardian.
- (2) The Family Services Department may enter into a Protective Services agreement with the family as set out in § 3146 of this chapter. Custody of the child is returned to or remains with the parents or guardian.
- (3) The child may be returned to the home of the parents, guardian or custodian under the supervision of the Court and another hearing held within thirty (30) days. Custody of the child in this case remains with the Band until the Court determines otherwise.
- (4) The child may continue in the child’s out-of-home placement and an Admit/Deny hearing will be held. Custody of the child in this case remains with the Band until the Court determines otherwise.
(e) Notice of Initial Hearing. The Court shall make all reasonable efforts to advise the parent, guardian or custodian of the time and place of the initial hearing as well as the contents of the petition. The Court shall request that the parent, guardian or custodian be present for the hearing. Reasonable efforts shall include personal, telephone and written contacts at their residence, place of employment or other location where the person is known to frequent with regularity. If the Court is unable to contact the parent, guardian or custodian, notice shall be given to members of the extended family of the child.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 13.
Band Ordinance 31-17.

§ 3153. Notification of Rights.

All parties have a right to be represented by an advocate or attorney at their own expense in all proceedings under this chapter, to introduce evidence, to be heard on his own behalf, to examine witnesses, and to be informed of possible consequences if the allegations of the petition are found to be true. All parties shall be entitled to advance copies of Court documents as stated in § 3163 of this chapter.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 14.
Band Ordinance 31-17.

§ 3154. Admit/Deny Hearing.

(a) A second hearing will be held within thirty (30) days following the initial hearing. The purpose of this hearing is for the Court to reassess whether continuing Court intervention is necessary to protect the well-being of the child.
(b) The Admit/Deny Hearing shall be held according to paragraphs (b), (c), and (e) of § 3152 of this chapter.
(c) If the parent fails to attend this hearing, parent’s counsel may enter a denial on behalf of the parent and the Court may set a date for trial according to § 3155 of this chapter.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 15.
Band Ordinance 31-17.

§ 3155. Notice of Formal Trial on the Issues.

(a) Summons. The Court shall issue a summons to the parent, guardian or custodian and such other persons as appear to the Court to be proper or necessary parties to the proceedings. The summons shall require them to appear personally before the Court at the date and time set for the formal trial.
(b) Attachments to Summons. A copy of the CHIPS petition shall be attached to each summons. The Court shall also attach a notice to the parent, guardian or custodian that advises them of their rights under § 3153 of this chapter.
(c) Personal Service. If the parties to be served with a summons can be found within the territorial jurisdiction of the Mille Lacs Band, the summons, a copy of the CHIPS petition and the notice of rights shall be served personally upon them at least twenty (20) calendar days before the formal trial on the issues.
(d) Mail Service. If there is good cause that the parties cannot be personally served, and if their address is known, the summons, petition and notice of rights may be served by certified mail with a return receipt requested at least twenty (20) business days before the formal trial.
(e) Notice to Extended Family. Notice to Extended Family. If the Court cannot accomplish personal or mail service on the parent, guardian or custodian, the Court shall attempt to notify the parent, guardian, or custodian by contacting members of the extended family of the parent, guardian, custodian, and/or the extended family of the child.
(f) ercice of Summons. Service of summons may be made under the direction of the Court by any person eighteen (18) years of age or older who is not a party to the proceedings.
(g) Publication. In a CHIPS case where it appears within the body of the petition or within an accompanying statement that the parent, guardian or custodian does not reside within the territorial jurisdiction of the Mille Lacs Band, or that their name, place of residence or whereabouts is unknown, as well as in all cases where after due personal service or service by certified mail has been unable to be effected, legal notice may be accomplished by publishing in Inaajimowin, Mille Lacs Band Website, or a newspaper of general circulation in the area where the party is most likely to be made aware of the notice. Publication must be in two consecutive issues of the Inaajimowin (both in print and online), on the Mille Lacs Band website on a page of prominent display for three consecutive weeks, or in a paper of general circulation at least once per week for three consecutive weeks, or any combination thereof. Proof of publication must be provided to the Court Administrator. Proof of publication requires a signed certificate from the editor and/or publisher of the Inaajimowin, Mille Lacs Band website, or the general circulation newspaper. Such notice shall be directed to the parent, guardian or custodian if their names are known, or, if unknown the phrase “to whom it may concern” may be used and applied to and be binding upon any such person whose names are unknown. The name of the Court, the date of the filing of the petition, the date of the hearing, and the object of the proceeding in general terms shall be set forth. There shall be filed with the clerk an affidavit showing publication of the notice. The publication of the notice shall be paid by the Mille Lacs Band Tribal Court. The publication of the notice shall be deemed equivalent to personal service upon all persons known or unknown who have been designated as provided in this paragraph.
(h) Contempt Warning. The summons issued by the Court shall conspicuously display the words:
- NOTICE, VIOLATION OF THIS ORDER IS SUBJECT TO PROCEEDINGS FOR CONTEMPT OF COURT PURSUANT TO 24 MLBSA §1210. THE COURT MAY FIND THE PARENT, GUARDIAN OR CUSTODIAN IN CONTEMPT FOR FAILURE TO APPEAR AT A COURT HEARING OR FOR FAILURE TO FOLLOW COURT ORDERS.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 17.
Band Ordinance 31-17.

§ 3156. Formal Trial on the Issues.

(a) Time Limitation. The formal trial on the issues will be set for no later than ninety (90) days following the filing of the CHIPS petition. The Court may grant a continuance upon a showing of good cause.
(b) Admissibility. No records, testimony, admissions, or stipulations made at either the initial hearing or the admit/deny hearing shall be admissible at the formal trial. This shall not be construed to prevent the admissibility of any evidence that was presented at these hearings that would be admissible under the Court’s rules of evidence.
(c) Closed Hearing. The general public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, the child’s family, and other persons determined to be appropriate by the Court shall be admitted.
(d) Advise of Rights. At the beginning of the hearing, the Court shall advise the parties of the reason for the hearing and of their basic rights as provided for in § 3153 of this chapter.
(e) Child Witnesses. If the Court determines that it is in the best interests of the child and does not violate the rights of a party, the Court may allow the child to testify by means of a videotape deposition, closed circuit television or other appropriate method. If the court does allow these methods to be utilized, the Court shall specifically set out the reasons for this determination on the record.
(f) Burden of Proof. The burden of proof lies with the petitioner. The petitioner must prove that the allegations raised in the Child in Need of Protection or Services petition are more likely true than not, that is, by the preponderance of the evidence, and that the best interests of the child will be served by continued Court intervention.
(g) Outcome of Hearing. At the end of the Formal Trial, the Court shall enter an order making one of the following dispositions of the case:
- (1) Dismissal. The Court may dismiss the CHIPS petition and the child returned to the home. Custody of the child in this case is returned to the parents.
- (2) Return to Home. The Court may find the allegations of the CHIPS petition to be true, but that out of home placement is not needed to protect the child. The Court may, however, due to unresolved problems in the home require compliance with a written Social Service case plan. As part of the case plan, the Court shall stipulate the circumstances under which the matter shall be considered resolved. The Court may delegate the determination of completion of the case plan to the discretion of Family Services. Custody of the child remains with the Band until the case plan is satisfactorily completed. Once Family Services determines the plan is completed, the Solicitor General will move the Court for dismissal and the Court shall dismiss the case.
- (3) Temporary Continuance of Out-of-Home-Placement. The Court may find the allegations of the CHIPS petition to be true and out-of-home placement necessary, but with the performance of specified actions by the parent, guardian, or custodian, the child may be returned absent good cause to the contrary. The order of the Court will specify actions, and the time frames for such actions that parents, guardians, or custodians must accomplish before the child is returned. The order will also specify the reasonable responsibilities of any support agency or personnel to be involved. The Court may delegate the determination of when the necessary actions have been completed to the discretion of Family Services. Custody of the child remains with the Band until the case plan is satisfactorily completed.
(4) Out-Of-Home Placement. The Court may find the allegations of the CHIPS petition to be true and that out-of-home placement continues to be necessary and further that the child may not be returned to the home, absent specific order of this Court. The Court shall review and adopt, as modified by the Court, the case plan presented by Family Services after hearing from the parties. A copy of the case plan shall be attached to the Court’s order and incorporated by reference. Once the case plan has been completed, the parties must return to Court for a final determination regarding the custody of the child. Custody of the child remains with the Band until the Court determines otherwise.
(5) Written Order. The Court shall specify in writing the facts, grounds, and statutory sections upon which it relied to make its decisions.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 16.
Band Ordinance 31-17.

§ 3157. Default Judgment.

(a) When Appropriate. If the parent, guardian or custodian fails to appear for the formal trial, the Court may find the parent, guardian or custodian in default, and enter a default order of CHIPS and order necessary intervention and appropriate steps the parent, guardian or custodian must follow to correct the problem.
(b) Notice Determination. Prior to finding a parent, guardian, or custodian in default, the Court must be satisfied actual notice has been given or that all reasonable steps have been taken to provide notice of the formal trial to the parent, guardian or custodian. The Court must also find that the petitioner can substantiate the presence of abuse or neglect through an offer of proof that demonstrates the relevancy of the evidence and the grounds for admissibility.
(c) Written Order. If the parent, guardian or custodian is found in default, the Court shall specify the facts, grounds, and statutory provisions upon which it relied to make the decision.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 18.
Band Ordinance 31-17.

§ 3158. Six (6) Month Review.

(a) Review Requirement. The status of all children subject to a CHIPS order shall be reviewed by the Court at least every six (6) months at a hearing to determine whether Court supervision shall continue, except that the first review following a formal trial on the issues shall be held within ninety (90) calendar days of the formal trial on the issues.
(b) Return to Home. A child shall be returned home following a review hearing unless the Court finds that grounds for removal still exist. The Court may, however, due to unresolved problems in the home, continue Court intervention and supervision if appropriate.
(c) Written Order. If continued court intervention is determined to be necessary, the Court shall set forth the following in a written order:
- (1) What services have been provided or offered to the parent, guardian or custodian to help correct the underlying problem.
- (2) The extent to which the parent, guardian or custodian has visited or contacted the child, or any reason why such visitation and/or contact has been infrequent or has not otherwise occurred.
- (3) Whether the parent, guardian or custodian is cooperative with the Court and Family Services.
- (4) Whether additional services that are reasonably able to be provided should be offered to the parent, guardian or custodian.
- (5) Whether the parent, guardian or custodian should be required to participate in any additional programs to help correct the underlying problem.
- (6) Whether Family Services has used active efforts to make it possible for the child to return home. Active efforts include providing services that are:
  - (i) relevant to the safety and protection of the child;
  - (ii) adequate to meet the needs of the child and family;
  - (iii) culturally appropriate;
  - (iv) available and accessible;
  - (v) consistent and timely; and
  - (vi) realistic under the circumstances.
(d) Determinations Required for Out-of-Home Placement. If the Court does not return the child to his home, the Court must find:
- (1) that it is contrary to the welfare of the child to return to the child’s home;
- (2) that the child is placed in the least restrictive setting that most approximates a family in which his special needs, if any, may be met, and the child is placed within reasonable proximity to his home, taking into account any special needs of the child or the favorability of the placement for the child; and
- (3) that it is in the best interest of the child to be placed under the care and control of the Band’s Family Services department.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 19.
Band Ordinance 31-17.

§ 3159. Concurrent Permanency Planning.

(a) The Commissioner of Health and Human Services shall establish a program for Concurrent Permanency Planning for Child Protection services.
(b) Concurrent Permanency Planning involves a planning process for children who are placed out of the home of their parents pursuant to a Court order, or who have been voluntarily placed out of the home by the parents for 60 days or more. The Band Family Services department shall develop an alternative permanency plan while making active efforts for reunification of the child with the family. The goals of concurrent permanency planning are to:
- (1) achieve early permanency for children;
- (2) decrease children's length of stay in foster care and reduce the number of moves children experience in foster care; and
- (3) develop a group of families who will work towards reunification and also serve as permanent families for children.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3160. Transfer of Custody.

(a) Established. The Court may transfer permanent legal and physical custody to a relative or other adult in the best interests of the child according to the following conditions:
- (1) an order for transfer of permanent legal and physical custody shall only be made after the Court has reviewed the suitability of the prospective legal and physical custodian;
- (2) a transfer of legal and physical custody includes responsibility for the protection, education, care, and control of the child and decision-making on behalf of the child;
- (3) a permanent legal and physical custodian may not return a child to the permanent care of a parent from whom the Court removed custody without the Court's approval and without notice to the responsible social services agency if any.
(b) Custodian Eligibility Factors.
- (1) Prospective Legal and Physical Custodians must be willing to submit to a background check as part of the petition. If the petition for Legal and Physical Custody does not arise from a Child in Need of Protection or Services case, the Court may require the prospective Custodian to pay a background check fee to Family Services to cover the cost of the background check.
- (2) Any person whose background reveals any convictions involving any of the crimes below shall not be granted custody:
  - (i) Homicide or Attempted Homicide;
  - (ii) Rape, sexual assault, molestation, or exploitation; or
  - (iii) Offenses committed against children (including child abuse).
- (3) Prospective Custodians who have any felony or 2 (two) or more of the following misdemeanor convictions within the last five (5) years may be subject to further scrutiny from the Court to determine the suitability of granting the petition:
  - (i) physical assault;
  - (ii) battery;
  - (iii) spousal abuse; or
  - (iv) drug-related offenses.
- (4) Any person with a diagnosed mental illness that will adversely affect the ability to carry out custodial duties will not be granted custody. The Court may ask for additional information regarding a person’s mental health status if it has reason to believe the child’s best interests could be adversely affected.
- (5) A person with a documented history of chemical dependency problems within the last ten (10) years may be required by the Court to submit to assessments such as a Rule 25 test, proof of attendance at AA meetings, or testimonies from reputable sources as to the prospective custodian’s sobriety before custody can be granted.
(c) Petition.
- (1) Family Services may file a petition naming a fit and willing adult as a proposed permanent legal and physical custodian. The petition shall include a Custodian Report with the following information:
  - (i) A background check;
  - (ii) Housing status and condition of house of the proposed custodian, including Family Services personnel’s own observations of cleanliness and safety;
  - (iii) A plan for custodian to continue providing care for the child following custodial placement;
  - (iv) Financial statement detailing the ability of the custodian to care for the child;
  - (v) Financial statement of the child (if any);
  - (vi) Any special services required for the care of the child;
  - (vii) References from community members such as neighbors and additional family members or friends; and
  - (viii) Family Services Staff member’s own observations regarding the capabilities of the proposed custodian to care for the child.
- (2) Family Services must make the following determinations regarding permanency for the child prior to the transfer of custody:
  - (i) a determination that reunification and adoption are not appropriate permanency options for the child; and
  - (ii) a determination that the child demonstrates a strong attachment to the prospective custodian and the prospective custodian has a strong commitment to caring permanently for the child.
- (3) Supporting information for completing each determination must be documented in the case file and available for review as requested.
(d) Court Oversight. The Court may maintain jurisdiction over the responsible social services agency, the parents or guardian of the child, the child, and the custodian for purposes of ensuring appropriate services are delivered to the child and of ensuring conditions ordered by the Court related to the care and custody of the child are met.
(e) Transfer of Custody Procedures.
- (1) The petitioner, prospective Custodian, and child, if age 14 or older, shall appear personally at the hearing to establish custody unless excused by the Court for good cause shown.
- (2) Before establishing custody, the Court must determine that the Petitioner has established by clear and convincing evidence that:
  - (i) the child’s parents have consented to the Transfer of Custody;
  - (ii) there is not a parent available and willing to care for the child; or
  - (iii) if there is a parent available and willing to care for the child:
    - (A) the child meets the definition of a child in need of protection because of conduct by the parent;
    - (B) there is a substantial probability of future abuse or neglect if the child were returned to the parent; and
    - (C) the conditions are unlikely to improve within a reasonable period of time.
- (3) If the child is 14 years of age or older, the child’s wishes regarding the proposed Transfer of Custody shall be considered by the Court.
- (4) If the Court is satisfied as to the suitability of the Transfer of Custody, it may enter an order granting custody under such terms or conditions that the Court finds appropriate.
- (5) The term of the custody arrangement expires when the child reaches the age of eighteen (18) or the Transfer of Custody is terminated by order of the Court.
(f) Additional Transfer of Custody Provisions. All Transfer of Custody proceedings shall follow the provisions of §§ 3213 (General Guardian Duties, Powers, and Limitations), 3214 (Management of Property), and 3215 (Annual Guardianship Report) of this chapter.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3161. Permanency Hearing.

(a) Frequency. A permanency hearing to review the permanency plan shall be held within twelve (12) months of the date a child is considered to have entered out-of-home placement or within thirty (30) days of a judicial determination that active efforts to reunify the child and family are not required due to aggravated circumstances. Aggravated circumstances include, but are not limited to abandonment, torture, chronic abuse, and sexual abuse. A review hearing to analyze the permanency plan shall be held at least once every twelve (12) months thereafter while the child is in out-of-home placement.
(b) Purpose. The purpose of the permanency hearing is to review the permanency plan for that child. If reunification is not the goal, within 12 months of the placement, a judicial determination must be made whether or not Family Services made active efforts to finalize the permanency plan that is in effect or an alternative permanency plan. Alternative permanency plans include reunification, adoption, cultural or customary adoption, transfer of legal custody or Permanent Guardianship, placement with a fit and willing relative or placement in another planned permanent living arrangement.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3162. Waiver of Timelines.

(a) Timelines established in this chapter may be waived by mutual consent in writing of Petitioner and parent, guardian or custodian subject to the petition.
(b) An extension of timelines may be granted by the Court provided that circumstances exist to justify an extension.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3163. Family Services Report.

(a) Requirement of a Family Services Report. To aid the Court in its decision, a Family Services report consisting of a written evaluation of matters relevant to the disposition of the case shall be made by the person or agencies filing the petition.
(b) Contents of a Family Services Report. The Family Services report shall include the following points, and be made available to the Court, and the parties as deemed appropriate by the Court, at least three (3) business days prior to a CHIPS review hearing:
- (1) A summary of the problem.
- (2) What steps, if any, have the parent, guardian, custodian or Family Services personnel already taken to correct the problem.
- (3) What services could benefit the parent, guardian, or custodian, but are not available in the community.
- (4) A report on how the child is doing in his current placement since the last hearing. If there have been any moves, the report will contain the reason for such moves.
- (5) Dates of contacts with parent, guardian or custodian and the child since the first hearing was held, method of contact, duration, and subjects discussed.
- (6) If there have been no contacts with the parent, guardian, or custodian by the social worker, what efforts have been made to contact such parties.
- (7) An assessment of when the child is expected to return home.
- (8) A list of who the extended family members are and a list of contacts or attempts to contact such family members regarding placement of the child. Family Services shall demonstrate continued efforts to update the list of extended family members at least for each Review Hearing or more frequently as ordered by the Court.
- (9) Documentation of how Family Services has performed Active Efforts as set out in § 3149 of this chapter;
- (10) Family Services personnel shall develop a case plan and shall make recommendations for the next six (6) months. Such recommendations will include:
  - (i) A treatment plan for the parents, guardian or custodian.
  - (ii) Future placement of the child.
  - (iii) What services should be provided for the child, if services are needed.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 20.
Band Ordinance 31-17.

§ 3164. Family Testimony or Report.

The members of the child’s family and extended family may submit reports, documents, or provide oral testimony regarding their position and to aid in the Court’s decision at any stage in the proceedings.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3165. Placement Preferences.

(a) Least Restrictive Setting. If a child cannot be returned home, the child shall be placed in the least restrictive setting that most approximates a family in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his home, taking into account the favorability of the placement and/or any special needs of the child. The placement restrictions set forth in § 3148 of this chapter shall be followed.
(b) Order of Preferences. Whenever appropriate, a child shall be placed in a home with the following characteristics, which shall be given preference in the following order:
- (1) The child’s non-offending parent. whether Indian or non-Indian.
- (2) Members of the extended family including Niiya’wenh’enh’ whether Indian or non-Indian. The agency overseeing placement of the child should look first at family members who have had a connection to the child or any family members who have requested the child be placed with them before moving on to other family members or the other placement options listed in subsection (b).
- (3) An Indian family of the same Band as the child.
- (4) An Indian family.
- (5) Foster Homes with specialized training to address the specific medical or emotional needs of the child.
- (6) A non-Indian family who has agreed to maintain the child’s connection to his culture.
(c) Following the Order of Preferences. Family Services shall work to find an appropriate placement to meet the specific needs of the child in each category before moving on to the next and shall document each attempt to find a placement within each category. Family Services shall consult with a panel of elders, who actively follow and practice Band spirituality. In all categories, Family Services shall work to place sibling groups together wherever possible.
(d) Non-Indian Family Placements. Subsection (b)(6) of this section is not meant to be a permanent placement option. If a child is placed in a foster home under subsection (b)(6), Family Services shall continue to look for alternative placement options within the child’s family, Band, or with another Indian family on an ongoing basis. Any placement under subsection (b)(6) shall be reviewed by the Court no later than six (6) months after placement to assess whether an alternative placement has been found.

Historical and Statutory Notes

Source:
Band Ordinance 01-96, § 21.
Band Ordinance 31-17.

§ 3166. Case Plan.

(a) The case plan must be designed to achieve placement in the most family-like setting possible, and in accordance with the Band’s placement preferences, and consistent with the child’s best interests and special needs.
(b) The case plan shall be a written document that is a distinct part of the child’s case record. The case plan must be developed no later than sixty (60) calendar days from the time the Band assumes responsibility for the placement and care of the child.
(c) The case plan shall be developed jointly with the parent, guardian, or custodian of the child, and the child’s guardian ad litem if he has one, and shall include the following:
- (1) A description of the foster home or residential setting where the child is to be placed, and an explanation of why that placement is appropriate;
- (2) An explanation of the efforts that were offered and made to prevent the need for removal of the child from his home;
- (3) A description of the care and services the child will receive in the foster home, both to meet the needs of the child while in foster care, and to document what steps have been made toward achieving the permanent goal;
- (4) A description of the services the child and his parents will receive with the objective of allowing the child to return home;
- (5) A discussion of why the care and services provided to the child under the plan are appropriate;
- (6) A description, when the child reaches the age of sixteen (16), of the programs and services that will help the child to prepare for the transition from foster care to independent living; and
- (7) Include, to the extent available, the health and education records of the child, which include:
  - (i) the names and addresses of the child’s health and education providers;
  - (ii) their grade level performance;
  - (iii) their school record;
  - (iv) assurances that the child placement in foster care takes in to account the proximity to the school in which the child is enrolled at the time of placement;
  - (v) a record of immunizations;
  - (vi) any known medical problems;
  - (vii) any medications;
  - (viii) any other relevant health and education information determined to be appropriate by the Band.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3167. Change in Placement or Visitation.

If at any time during a CHIPS proceeding, there is a change in the Child’s placement or a substantial change to the child’s visitation plan (for example, a change from unsupervised to supervised visits), Family Services must notify the parties within twenty-four (24) hours and provide the reason for the change.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.

§ 3168. Emergency Placement Report and Hearing.

(a) Report. In the event of a report and investigation requiring a child to be placed out-of-home for a second time in the course of an open CHIPS proceeding either after a trial home visit, protective supervision, or reunification for a time, Family Services shall file a supplementary Court report to notify the Court, Solicitor General and parties which child was removed and when. This report should include a narrative of why the child was removed and where he was placed, unless the safety of the child requires that information to be withheld.
(b) Hearing. The Court will schedule a hearing specifically on the topic of the removal within seventy-two (72) hours.
- (1) If the parties agree with the circumstances that initiated the removal or fail to appear to object to the placement, the Court will order the placement and indicate whether there is need for a revised case plan.
- (2) If the parties disagree with the circumstances that initiated the removal, the Court will set an evidentiary hearing to be held within ten (10) calendar days of the Revised Placement Hearing.

Historical and Statutory Notes

Source:
Band Ordinance 31-17.