TITLE 6. CHILDREN AND

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FAMILY RELATIONS

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Chapter

Section

1. CHILDREN.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 1–101

2. FAMILY RELATIONS—MARRIAGE. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 2–101

3. PROTECTION FROM DOMESTIC AND FAMILY VIOLENCE

ACT. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 3–101

4. ORGANIZED INDIAN YOUTH COUNCILS—TRIBAL CHARTERS.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 4–101

5. GUARDIAN AND WARD.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 5–101

6. MUSCOGEE (CREEK) NATION CHILD SUPPORT ENFORCEMENT CODE. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 6–101

7. PATERNITY DETERMINATION CODE. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 7–101

CHAPTER 1.

CHILDREN

Subchapter

Purpose; Definitions; General Provisions

Children and Family Services Administration

Jurisdiction and Venue

Procedure, Generally

Abuse and Neglect Reporting Requirements; Central Registry

Search Warrants; Custody or Detention

Adjudication

Disposition

Termination of Parental Rights

10. Adoptions

11. Foster Care

United States Code Annotated

Indian Child Protection and Family Violence Prevention Act, see 25 U.S.C.A. § 3201 et seq.

Indian Child Welfare Act, see 25 U.S.C.A. § 1901 et seq.

SUBCHAPTER 1. PURPOSE; DEFINITIONS;

GENERAL PROVISIONS

Section

1–101. Purpose.

1–102. Definitions; general.

1–103. Definitions; family and custodial relationships.

1–104. Definitions; courts and agencies.

1–105. Definitions; types of children’s needs requiring court intervention.

1–106. Definitions; placement facilities.

333

Refs & Annos

CHILDREN

Section

1–107. Role of the Prosecutor in juvenile proceedings.

1–108. District Court.

1–109. Place of sitting.

§ 1–101. Purpose

The purpose of this chapter is to:

A. Secure for each child subject to this chapter such care and guidance,

preferably in his own home, as will best serve his welfare and the interests of

the Nation and society in general;

B. Preserve and strengthen the ties between the child and his Nation

whenever possible;

C. Preserve and strengthen family ties whenever possible, and strengthen

and improve the home and its environment when necessary; and

D. Remove a child from the custody of his parents and Indian custodians

only when his welfare and safety or the protection of the public would

otherwise be endangered; and

E. Secure for any child removed from the custody of his parents the

necessary care, guidance and discipline to assist him in becoming a responsible

and productive member of his Nation and society in general.

[NCA 01–126, § 102, approved Aug. 9, 2001.]

Library References

Indians O132.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150, 152, 154 to 176.

§ 1–102. Definitions; general

Unless the context otherwise requires, as used in this chapter the following

terms shall be defined as follows:

A. Adjudicatory hearing. ‘‘Adjudicatory hearing’’ means a hearing to determine whether the allegations of a petition alleging a child to be deprived, in

need of supervision, in need of treatment or delinquent filed pursuant to this

title are supported by the evidence.

B. Adult. ‘‘Adult’’ means a person eighteen (18) years of age or over; except

that any person alleged to have committed a delinquent act before he became

eighteen (18) years of age shall be considered a child under this chapter for the

purpose of adjudication and disposition of the delinquent act.

C. Child. ‘‘Child’’ means any unmarried person who is under age eighteen

(18) and is either: (1) a member of an Indian tribe; or (2) eligible for

membership in an Indian tribe.

D. Child custody proceedings.

1. ‘‘Child custody proceedings’’ shall mean and include:

a. ‘‘Foster care placement’’ which shall mean any action removing an

Indian child from its parent or Indian custodian for temporary placement in a

foster home or institution or the home of a guardian or conservator where the

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GENERAL PROVISIONS

Title 6, § 1–102

parent or Indian custodian cannot have the child returned upon demand, but

where parental rights have not been terminated;

b. ‘‘Termination of parental rights’’ which shall mean any action resulting

in the termination of the parent-child relationship;

c. ‘‘Preadoptive placement’’ which shall mean the temporary placement of

an Indian child in a foster home or institution after the termination of parental

rights, but prior to or in lieu of adoptive placement; and

d. ‘‘Adoptive placement’’ which shall mean the permanent placement of an

Indian child for adoption, including any action resulting in a final decree of

adoption.

2. Such term or terms shall include custody proceedings involving delinquent or alleged delinquent children, but shall not include a placement based

on an award in a divorce proceeding of custody to one of the parents.

son.

Commit. ‘‘Commit’’ means to transfer legal custody.

Custody. ‘‘Custody’’ means legal and physical guardianship of the per-

G. Deprivation of custody. ‘‘Deprivation of custody’’ means the transfer of

custody by the Court from a parent or a previous legal custodian to another

person, agency, or institution.

H. Detention. ‘‘Detention’’ means the temporary care of a child who requires secure custody in physically restricting facilities pending Court disposition or a Court order for placement or commitment.

I. Dispositional hearing. ‘‘Dispositional hearing’’ means a hearing, held

after an adjudicating hearing has found a child to be deprived, neglected, in

need of supervision, or delinquent in which the Court must determine what

treatment should be ordered for the family and the child, and what placement

of the child should be made during the period of treatment.

J. Expert witness. An ‘‘expert witness’’ means one of the following persons

providing expert testimony on a topic related to his field of expertise:

1. A member of the child’s Tribe who is knowledgeable about the child’s

Tribe’s family values, practices and customs, provided that such qualifications

shall be established by consideration of the following factors: the age of the

expert witness, whether he is fluent in the language of the child’s Tribe,

whether he has resided within the territorial jurisdiction of the child’s Tribe for

a significant period of time, the extent of his involvement in Indian church

activities, stomp ground ceremonies, band activities and other cultural activities within the Nation, testimony by other members of the child’s Tribe that he

is recognized as being knowledgeable about the child’s Tribe’s family values,

practices and customs, and other similar factors;

2. A lay expert witness having substantial experience in the delivery of child

and family services to Indians and extensive knowledge of prevailing social and

cultural standards and child rearing practices within the Indian child’s Tribe;

A licensed physician;

A qualified mental health professional; or

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5. A professional person having substantial education and experience in the

area of his or her specialty.

K. Guardianship of the person. ‘‘Guardianship of the person’’ means legal

custody or the duty and authority vested by law to make major decisions

affecting a child including, but not limited to:

1. The authority to consent to marriage, enlistment in the armed forces, and

to extraordinary medical and surgical treatment;

2. The authority to represent a child in legal actions and to make other

decisions of substantial legal significance concerning a child;

3. The authority to consent to the adoption of a child when the parent-child

relationship has been terminated by judicial decree or the death of the parents;

4. The rights and responsibilities of the physical and legal care, custody, and

control of a child when legal custody has not been vested in another person, or

agency, or institution; and

5. The duty to provide food, clothing, shelter, ordinary medical care, education, and discipline for the child.

L. Handicapped child. ‘‘Handicapped child’’ means any child who has a

physical or mental impairment which substantially limits one or more of the

major life activities of the child or who is regarded as having such an

impairment by a competent medical professional.

M. Indian country. ‘‘Indian country’’ means any real property that is within

the Nation’s political jurisdiction as defined in Article I, Section 2 of the 1979

Muscogee (Creek) Nation Constitution and that is: (1) owned by any Indian

subject to restrictions against alienation; (2) held in trust by the United States

for the benefit of any Indian; (3) held in trust by the United States for the

benefit of the Muscogee (Creek) Nation; (4) any original unallotted fee land

owned by the Muscogee (Creek) Nation prior to allotment, including without

limitation the Mackey Sandbar site; or (5) any other real property which

otherwise constitutes Indian country as that term is defined in 18 U.S.C.

§ 1151.

N. Muscogee (Creek) child. ‘‘Muscogee (Creek) child’’ means any person

under the age of eighteen (18) years, who is either (1) a member of the

Muscogee (Creek) Nation, or (2) who is eligible for membership in the Muscogee (Creek) Nation.

O. Muscogee (Creek) household. A ‘‘Muscogee (Creek) household’’ is a

home in which at least one head of the household is a member of the Muscogee

(Creek) Nation, or eligible for membership in the Tribe.

Nation. ‘‘Nation’’ means the Muscogee (Creek) Nation of Oklahoma.

Q. Protective supervision. ‘‘Protective supervision’’ means a legal status

created by court order under which the child is permitted to remain in his own

home under the supervision of the District Court through the child welfare

worker during the period during which treatment is being provided to the

family by the agency designated by the Court.

R. Qualified mental health professional. ‘‘Qualified mental health professional’’ means a person having specific training and current experience in the

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Title 6, § 1–103

GENERAL PROVISIONS

mental health testing, examination, evaluation and diagnosis of children and

adolescents and who either: holds at least a master’s degree in a mental health

field and is employed under the classification of a Psychological Assistant or

Social Worker II or above by the state as a provider of mental health services

or possesses a current, valid Oklahoma license in a mental health field or

permission to practice by a licensor board in a mental health field.

S. Residual parental rights and responsibilities. ‘‘Residual parental rights

and responsibilities’’ means those rights and responsibilities remaining with the

parent after legal custody, or guardianship of the person of said child has been

vested in another person, agency, or institution, but where parental rights have

not been terminated, including, but not necessarily limited to, the responsibility

for support, the right to consent to adoption, the right to inherit from the child,

the right to determine the child’s religious affiliation, and the right to reasonable visitation with the child unless restricted by the Court.

T. Termination of parental rights or termination of parent-child legal

relationship. ‘‘Termination of parental rights’’ or ‘‘termination of the parentchild legal relationship’’ means the permanent elimination by Court order of all

parental rights and duties, including residual parental rights and duties, but not

including the child’s right to inherit from the parent whose rights have been

terminated.

U. Transfer proceeding. ‘‘Transfer proceeding’’ means any proceeding in

the Court to grant, accept, or decline transfer of any children’s case from or to

the courts of any Indian Nation or state whenever such transfer is authorized

by Tribal, federal, or state law.

[NCA 01–126, § 103, approved Aug. 9, 2001.]

Cross References

Legal custody, guardianship, see Title 6, § 1–814.

§ 1–103. Definitions; family and custodial relationships

The following definitions shall be followed in all child custody proceedings in

the Nation’s District Court, and are also hereby recognized as the official law of

the Muscogee (Creek) Nation in all state child custody proceedings involving

children of members of the Muscogee (Creek) Nation or children who are

members of the Muscogee (Creek) Nation and who are subject to the federal

Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and the Oklahoma Indian

Child Welfare Act, 10 O.S. § 40 et seq. in such state court proceedings:

A. Adoptive extended family member. A person shall be recognized as an

adoptive member of the child’s extended family if such person would come

within the terms of the definitions of said extended family members set forth in

this section by virtue of a lawful adoption accomplished in one of the following

ways:

1. Pursuant to order of a state court or of a Tribal Court, including the

Nation’s District Court, provided that said court possessed jurisdiction over the

child sufficient to issue such order; or

2. Pursuant to custom of an Indian Nation, including customs regarding

clan memberships, provided that the person claiming to be an adoptive mem337

Title 6, § 1–103

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ber of the child’s extended family pursuant to Tribal custom shall have the

burden of proof of establishing the fact of his adoptive relationship with he

child’s family, and such proof must include the testimony of at least one

qualified expert witness knowledgeable about said customs.

Aunt. ‘‘Aunt’’ means a person who, by blood or marriage, is:

A female sibling of the biological parents; or

A female cousin of the biological parents; or

3. Any other person, who, by virtue of an adoption either of herself or a

member of her family is an ‘‘adoptive extended family member’’ as defined by

subsection A of this section and who qualifies as an aunt in accordance with

paragraph 1 or 2 of this subsection.

Brother. ‘‘Brother’’ means a person who is:

Any male sibling; or

2. Any other person, who, by virtue of an adoption either of himself or a

member of his family is an ‘‘adoptive extended family member’’ as defined by

subsection A of this section and who qualifies as a brother in accordance with

this subsection.

D. Brother-in-law. ‘‘Brother-in-law’’ means the husband of a sister by blood

or marriage.

E. Cousin. ‘‘Cousin’’ means the child of an aunt or uncle; or the child of the

child of an aunt or uncle.

F. Extended family member. ‘‘Extended family member’’ shall mean a

person who has reached the age of eighteen (18) and who is the Indian child’s:

Grandparent;

Aunt or uncle;

Brother or sister;

Fellow clan member;

Niece or nephew; or

First or second cousin.

Grandparent. ‘‘Grandparent’’ means a person who is:

A biological grandparent; or

The brothers and sisters of a biological grandparent, and their spouses;

A biological great-grandparent; or

4. Any other person, who, by virtue of an adoption either of himself or a

member of his family is an ‘‘adoptive extended family member’’ as defined by

subsection A of this section and who qualifies as an aunt in accordance with

paragraphs 1 or 2 of this subsection.

H. Indian custodian. ‘‘Indian custodian’’ means any Indian person who has

legal custody of an Indian child pursuant to the following type of authorization:

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GENERAL PROVISIONS

Title 6, § 1–103

1. Pursuant to order of a state court or of a Tribal Court, including the

Nation’s District Court, provided that said Court possessed jurisdiction over the

child sufficient to issue such order; or

2. Pursuant to authorization by a parent who has transferred the temporary

physical care, custody, and control over the child to such person, provided that

said authorization need not be in writing, and may be established by testimony

regarding verbal statements by the parent, habits and practices of the parent

and the person claiming to be an Indian custodian regarding custody of the

child, and proof of any other factors relevant to the person’s status as an Indian

custodian; or

3. Pursuant to customs of the Tribe of which the child is a member, based

upon testimony of at least one qualified expert witness knowledgeable about

said customs.

I. Nephew. ‘‘Nephew’’ means the male child of a brother, sister, brother-inlaw, or sister-in-law, by blood, marriage, or adoption or custom.

J. Niece. ‘‘Niece’’ means the female child of a brother, sister, brother-inlaw, or sister-in-law, by blood, marriage, adoption, or custom.

Parent. ‘‘Parent’’ means:

1. Any biological parent of an Indian child, not including an unwed father,

unless he has acknowledged paternity of the child orally to two or more

disinterested parties or in writing under oath unless paternity has been established by judicial action; or

2. Any person who has lawfully adopted an Indian child pursuant to order

of a state court or of a Tribal Court, including the District Court, provided that

said court possessed jurisdiction over the child sufficient to issue such order; or

3. Any person who has adopted a child pursuant to custom, common law or

tradition of an Indian Nation.

Sister. ‘‘Sister’’ means:

Any female sibling, or

2. Any other person, who, by virtue of an adoption either of herself or a

member of her family is an ‘‘adoptive extended family member’’ as defined by

subsection A of this section and who qualifies as a sister in accordance with

paragraphs 1 or 2 of this subsection.

M. Sister-in-law. ‘‘Sister-in-law’’ means the wife of a brother by blood or by

marriage.

N. Stepparent. ‘‘Stepparent’’ means a person married to a biological parent, but who is not a biological parent of the child.

Uncle. ‘‘Uncle’’ means a person who, by blood or marriage, is:

A male sibling of the biological parents; or

A male cousin of the biological parents; or

3. Any other person, who, by virtue of an adoption either of himself or a

member of his family is an ‘‘adoptive extended family member’’ as defined by

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subsection A of this section and who qualifies as an uncle in accordance with

paragraphs 1 or 2 of this subsection.

[NCA 01–126, § 104, approved Aug. 9, 2001.]

Cross References

Placement preferences, see Title 6, § 1–811.

§ 1–104. Definitions; courts and agencies

A. Child placement agency. ‘‘Child placement agency’’ means an agency

designed for the care or placement of children licensed or approved pursuant

to law of the Nation, or, if outside the Nation’s jurisdiction, by the law of the

jurisdiction in which such facility is physically located, or both.

B. Child protection worker. ‘‘Child protection worker’’ means the person

who is responsible for the investigation of child abuse and neglect for Indian

children subject to the District Court’s jurisdiction and referral of cases to the

Prosecutor for filing, and for periodic reports and recommendations to the

District Court regarding children placed in foster care by the District Court.

C. Child treatment worker. ‘‘Child welfare worker’’ means the person who

is responsible for providing culturally oriented preventive and treatment services to at-risk Indian families, including education of the Indian community on

child protection issues; and providing care and protection to Muscogee (Creek)

children removed from their homes through advocacy of the Indian Child

Welfare Act in state court, conduct of placement home studies and placement

recommendations to the state court and the District Court, supervision of

children placed by the District Court in the legal custody of the Muscogee

(Creek) Nation Children and Family Services Administration, reports to the

state court and the District Court, and maintenance of a Tribal foster care

program.

D. Children and Family Services Administration (CFSA). ‘‘Children and

Family Services Administration’’ or ‘‘CFSA’’ means the Children and Family

Services Administration of the Muscogee (Creek) Nation.

E. District Court.

District Court.

‘‘District Court’’ means the Muscogee (Creek) Nation

F. Law enforcement agency. ‘‘Law enforcement agency’’ means a law

enforcement agency of the Nation, the Bureau of Indian Affairs, a municipality,

a county sheriff or a state agency.

G. Lighthorse Police. ‘‘Lighthorse Police’’ means the law enforcement

agency of the Muscogee (Creek) Nation.

H. Receiving agency. ‘‘Receiving agency’’ means the department or law

enforcement agency first receiving a report of alleged child abuse.

[NCA 01–126, § 104–A, approved Aug. 9. 2001; amended by NCA 06–059, § 1, approved

May 8, 2006.]

§ 1–105. Definitions; types of children’s needs requiring court intervention

A. Abused child. ‘‘Abused child’’ means a child who is the subject of an act

or omission by a parent, guardian or custodian in one of the following

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GENERAL PROVISIONS

Title 6, § 1–105

categories which seriously threatens the health or welfare of the child, provided

that persons investigating reports of child abuse shall take into account accepted child rearing practices of the culture in which the child participates:

1. Any case in which a child exhibits evidence of skin bruising, bleeding,

malnutrition, failure to thrive, burns, fracture of any kind, subdural hematoma,

soft tissue swelling, or death, and such condition or death is at variance with

the degree or type of such condition arising from accidental or natural causes,

or circumstances indicate that such condition or death may not be the product

of an accidental or natural causes; or

2. Any case in which a child is subject to serious emotional damage, based

on findings by a qualified expert witness who is a psychiatrist or psychologist;

Any case in which a child is subject to sexual assault or molestation; or

4. Any case in which the child’s parents, legal guardians or custodians have

allowed another to abuse the child without taking lawful means to stop such

abuse and prevent it from recurring.

B. Child in need of supervision. ‘‘Child in need of supervision’’ means any

child:

1. Who has repeatedly disobeyed reasonable and lawful commands or

directives of his parent, legal guardian, or other custodian; or

2. Who is willfully and voluntarily absent from his home without the

consent of his parent, guardian, or legal custodian for a substantial period of

time, or without intent to return; or

3. Who, being subject to compulsory school attendance, is willfully, voluntarily, and habitually absent from school for ten (10) or more days or parts of

days within a semester or for four (4) or more days or parts of days within a

four (4) week period without a valid excuse as defined by the local school

boards if said child is subject to compulsory school attendance.

Child in need of treatment.

1. ‘‘Child in need of treatment’’ means a child who has a demonstrable

mental illness and as a result of that mental illness:

a. Can be expected within the near future to intentionally or unintentionally

seriously physically injure himself or another person and has engaged in one or

more recent overt acts or made significant recent threats which substantially

support that expectation; or

b. Is unable to attend to those of his basic needs that must be attended to in

order for him to avoid serious harm in the near future and has demonstrated

such inability by failing to attend to those basic needs in the recent past. A

determination regarding the ability of the child to attend to his basic needs

shall be based upon the age of the child and reasonable and appropriate

expectation of the abilities of a child of such age to attend to said needs.

2. The term ‘‘child in need of treatment’’ shall not mean a child afflicted

with epilepsy, developmental disability, organic brain syndrome, physical handicaps, brief periods of intoxication caused by such substances as alcohol or

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CHILDREN

drugs or who is truant or sexually active unless the child also meets the criteria

of a child in need of treatment pursuant to the definitions contained herein.

Delinquent child. ‘‘Delinquent child’’ means a child who:

1. Has violated any lawful order of the Court made pursuant to this chapter

or has violated any federal law, law of the Nation, or state law, except traffic

laws and hunting and fishing laws; or

Has habitually violated any traffic, hunting, or fishing laws.

E. Deprived child, dependent child, neglected child. ‘‘Deprived child,’’

‘‘dependent child’’ or ‘‘neglected child’’ means a child who is the subject of an

act or omission by a parent, guardian or custodian in one of the following

categories which threatens the health or welfare of the child, provided that

persons investigating reports of child neglect shall take into account accepted

child rearing practices of the culture in which the child participates:

A child who is for any reason destitute or homeless; or

2. A child who does not have the proper parental care or guardianship

through the actions or omissions of a parent, guardian or custodian; or

3. A child whose home is an unfit place for the child by reason of neglect,

cruelty or depravity on the part of his parents, legal guardian or other person in

whose care the child may be, including but not limited to an abused child; or

4. A child whose parent, guardian, or custodian has allowed another to

mistreat or abuse the child without taking lawful means to stop such maltreatment or abuse and prevent it from recurring; or

5. A child whose parent, guardian, or legal custodian has abandoned the

child without intent to return, or who had placed him informally and without

benefit of Tribal custom with any other person, and/or has not contributed to

the support of the child or maintained personal contact with the child for a

period in excess of twelve (12) months.

6. A child who is a handicapped child deprived of the nutrition necessary to

sustain life or of the medical treatment necessary to remedy or relive a lifethreatening medical condition in order to cause or allow the death of said child

if such nutrition or medical treatment is generally provided to similarly situated

non-handicapped or handicapped children, provided that no medical treatment

is necessary if, in the reasonable medical judgment of the attending physician,

such treatment would be futile in saving the life of the child; or

7. A child who is, due to improper parental care and guardianship, absent

from school for ten (10) or more days or parts of days within a semester or for

four (4) or more days or parts of days within a four (4) week period without a

valid excuse as defined by the local school boards if said child is subject to

compulsory school attendance.

[NCA 01–126, § 105, approved Aug. 9, 2001.]

§ 1–106. Definitions; placement facilities

A. Child care center. ‘‘Child care center’’ means an institution or facility

designed for the care of children licensed or approved pursuant to law of the

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Title 6, § 1–107

GENERAL PROVISIONS

Nation, or, if outside the Nation’s jurisdiction, by the law of the jurisdiction in

which such facility is physically located, or both.

B. Emergency shelter home. ‘‘Emergency shelter home’’ means a foster

home licensed by the Muscogee (Creek) Nation Children and Family Services

Administration (CFSA) and designated primarily for time-limited emergency

placements, usually lasting no longer than thirty (30) days for any child.

C. Family foster home or foster home. ‘‘Family foster home’’ or ‘‘foster

home’’ means a home where care is provided to a total of not more than ten

(10) children at any given time, including children who are not foster children,

in a family type setting, licensed or approved pursuant to law of the Nation, or,

if outside the Nation’s jurisdiction, by the law of the jurisdiction in which such

facility is physically located or both.

D. Group care facilities. ‘‘Group care facilities’’ means places other than

family care homes or child care centers providing care for small groups of

children.

E. Halfway house. ‘‘Halfway house’’ means group care facilities for children

who have been placed on probation or parole by virtue of being adjudicated

delinquent or in need of supervision under this chapter.

F. Shelter. ‘‘Shelter’’ means a facility for the temporary care of a child in

physically unrestricting facilities pending court disposition, or execution of a

court order for emergency or temporary placement.

G. Special services home. A ‘‘special services home’’ means a foster home

licensed by the CFSA and able to provide extraordinary care or services, by

virtue of training, experience, and/or special skills.

[NCA 01–126, § 106, approved Aug. 9, 2001.]

§ 1–107. Role of the Prosecutor in juvenile proceedings

The Prosecutor shall act on behalf of the people of the Muscogee (Creek)

Nation for the protection of the child in all state and Tribal Court child custody

proceedings subject to the Juvenile Code. The CFSA is primarily responsible

for the protection of children in state and Tribal custody; however, the

Prosecutor shall be responsible for the legal proceedings in deprived actions for

Tribal courts and state courts, in accordance with § 1–205 of this Title. CFSA

may request legal advice or representation in other matters. The Prosecutor

shall assist the CFSA pursuant to the requirements of the Juvenile Code, but

shall exercise independent professional judgments related to the protection of

the child. If a conflict of interest should arise between CFSA staff and the child

or between elected officials and the child, the Prosecutor’s foremost obligations

shall be to uphold the law for the protection of the child.

[NCA 01–126, § 110, approved Aug. 9, 2001; amended by NCA 06–059, § 1, approved

May 8, 2006.]

Library References

Indians O640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

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CHILDREN

§ 1–108. District Court

The District Court shall be the Muscogee (Creek) Nation District Court or its

Juvenile Division. The Chief Judge shall appoint the Judge or Judges who may

act as the District Court, including Special Judges.

[NCA 01–126, § 111, approved Aug. 9, 2001.]

Cross References

District Court, generally, see Title 26, § 2–101 et seq.

Library References

Indians O401.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–109. Place of sitting

The District Court shall sit in the same place the District Court sits, provided,

that the Juvenile Division, in a transfer proceeding or where otherwise necessary and expedient in the interest of justice and economy, with the approval of

the Chief Judge, may sit anywhere within the territorial limits of the United

States.

[NCA 01–126, § 112, approved Aug. 9, 2001.]

Cross References

Terms and location of court, rules and procedures, see Title 27, App. 1, Rule 3.

Library References

Indians O401.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

SUBCHAPTER 2. CHILDREN AND FAMILY

SERVICES ADMINISTRATION

Section

1–201. Muscogee (Creek) Nation Children and Family Services Administration.

1–202. Contracts and cooperative agreements.

1–203. General authority and duties.

1–204. Proceedings in District Court.

1–205. State court proceedings.

1–206. Multi-Disciplinary Team.

1–207. Manager.

§ 1–201. Muscogee (Creek) Nation Children and Family Services Administration

The Muscogee (Creek) Nation Children and Family Services Administration

(CFSA) is an agency of the Muscogee (Creek) Nation of Oklahoma subject to the

fiscal and administrative supervision of the Executive Office of the Muscogee

(Creek) Nation.

[NCA 01–126, § 107, approved Aug. 9, 2001.]

344

Title 6, § 1–203

GENERAL PROVISIONS

Cross References

Executive Office, see Title 16, § 1–101 et seq.

Library References

Indians O132.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150, 152, 154 to 176.

§ 1–202. Contracts and cooperative agreements

The Principal Chief is authorized to approve and execute all federal contracts

related to funding of the CFSA, and to execute cooperative agreements with the

State of Oklahoma, provided that said cooperative agreements are first approved by the National Council.

[NCA 01–126, § 107, approved Aug. 9, 2001.]

Cross References

Applications for financial assistance, see Title 37, § 2–501 et seq.

Library References

Indians O132, 216.

Westlaw Topic No. 209.

C.J.S. Indians §§ 59, 150, 152, 154 to 176.

§ 1–203. General authority and duties

The CFSA shall be responsible for the following:

A. Providing culturally oriented preventive and treatment services to at-risk

Indian families within the jurisdiction of the Nation, including parenting skills

training and education of the Indian community on child protection issues;

B. Conducting home studies and preparing reports for purposes of foster

care licensing and recommendations relating to potential adoptive parents;

Issuing foster care licenses and supervision of foster care families;

D. Negotiating cooperative agreements between the Nation and other states

or tribes relating to provision of services to Indian children and their families,

provided that said agreements shall not be effective unless approved by the

National Council and executed by the Principal Chief;

E. Cooperating with other social services agencies in order to ensure the

best possible protection of Indian children and their families; and

Exercising all other duties consistent with this title.

[NCA 01–126, § 108, approved Aug. 9, 2001.]

Cross References

Adoptions, generally, see Title 6, § 1–1001 et seq.

Foster care, see Title 6, § 1–1101 et seq.

Library References

Indians O132.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150, 152, 154 to 176.

345

Title 6, § 1–204

CHILDREN

§ 1–204. Proceedings in District Court

The CFSA shall be responsible for the protection of Indian children subject to

the jurisdiction of the District Court. In performing these duties, the CFSA shall

have authority to engage in the following activities:

A. Investigation of all reports or complaints regarding Indian children

located within the territorial boundaries of the Muscogee (Creek) Nation and

domiciled on Indian country or otherwise subject to the jurisdiction of the

Muscogee (Creek) Nation;

B. Request of legal documents for child custody proceedings where necessary for the protection of Indian children;

C. Submission of these legal requests to the Prosecutor of the Muscogee

(Creek) Nation for action;

D. Placement and supervision of children placed by the District Court in the

legal custody of the Muscogee (Creek) Nation Children and Family Services

Administration, including emergency placements;

E. Conduct placement home studies and placement recommendations regarding children in foster care to the District Court;

F. Reports and recommendations regarding children in foster care to the

District Court; and

G. Participation in and attendance at all District Court proceedings in order

to serve as an advocate for the child, including permanency planning for the

child.

[NCA 01–126, § 108, approved Aug. 9, 2001.]

Library References

Indians O132.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150, 152, 154 to 176.

§ 1–205. State court proceedings

The Prosecutor shall provide the following services in state court proceedings:

A. Intervention on behalf of the Muscogee (Creek) Nation in all Oklahoma

state court child custody proceedings involving Muscogee (Creek) children

domiciled in Indian country within the jurisdiction of the Nation, in order to

secure dismissal of said state court action for lack of state court jurisdiction;

and referral of said case to the Child Protection Worker for institution of child

custody proceedings in the District Court if necessary for the protection of the

child.

B. Intervention on behalf of the Muscogee (Creek) Nation in all Oklahoma

state court child custody proceedings within the boundaries of the Muscogee

(Creek) Nation involving enrolled Muscogee (Creek) children or Muscogee

(Creek) Nation children whose biological parent or parents are enrolled members, in order to serve as an advocate of the Muscogee (Creek) Nation regarding

proper placement of the child; and to move on behalf of the Nation to transfer

proceedings to the Nation’s District Court if appropriate. CFSA shall conduct

346

Title 6, § 1–206

GENERAL PROVISIONS

and prepare home studies; provide supervision; provide rehabilitative services

to the child and his family; prior to each hearing, prepare reports and

recommendations to the appropriate Court; and attend all Court hearings in

said matter;

C. Intervention on behalf of the Muscogee (Creek) Nation in child custody

proceedings involving enrolled Muscogee (Creek) children or Muscogee (Creek)

Nation children whose biological parent or parents are enrolled members

arising in an Oklahoma state court outside the boundaries of the Muscogee

(Creek) Nation, or a Tribal court located within Oklahoma, for the limited

purpose of monitoring activities in said proceedings or for the purpose set forth

in paragraph B of this subsection; and,

D. Intervention on behalf of the Muscogee (Creek) Nation in child custody

proceedings involving Muscogee (Creek) children arising in state or Tribal

courts outside of the state of Oklahoma, for the limited purpose of monitoring

activities in said proceedings or for the purposes set forth in paragraph B of

this subsection.

[NCA 01–126, § 108, approved Aug. 9, 2001; amended by NCA 06–059, § 1, approved

May 8, 2006; NCA 07–252, § 2, eff. Oct. 10, 2007; NCA 07–252, § 3, eff. Oct. 10, 2007.]

Library References

Indians O136.

Westlaw Topic No. 209.

C.J.S. Indians §§ 154 to 176.

§ 1–206. Multi-Disciplinary Team

The CFSA shall maintain an effective Multi-Disciplinary Team (hereinafter

‘‘MDT’’), which shall have responsibility for making recommendations regarding the diagnostic, prognostic, and treatment services being offered to the child

or family in connection with reported abuse, pursuant to the following requirements:

A. The MDT shall staff each case on an anonymous basis. In all its discussions, the team shall not disclose the names or addresses or any other identifying information relating to the children, families, or informants in those cases.

B. At the beginning of the discussion of each case, a designated team

member shall state the following information: The severity of the abuse or

neglect and the age and sex of the child. The team shall also state whether the

child was hospitalized and whether the child’s medical records were checked.

C. The public shall not be permitted to attend those portion of MDT

meetings concerned with mandatory team discussions of public and private

agencies responses to each report of child abuse and neglect being considered

by the team, as well as the team’s recommendations related to public agency

responses.

D. At the meeting, the MDT shall review the responses of public and private

agencies to each report of child abuse or neglect and shall state whether such

response was timely and adequate.

[NCA 01–126, § 108, approved Aug. 9, 2001.]

347

Title 6, § 1–206

CHILDREN

Cross References

Records and reports of incidents of domestic abuse, see Title 6, § 3–314.

Library References

Indians O132.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150, 152, 154 to 176.

§ 1–207. Manager

The Manager of the CFSA shall be responsible for the day to day operation of

CFSA, shall hire staff pursuant to the personnel policies and procedures of the

Nation, shall supervise all staff of CFSA, shall maintain oversight over caseloads, shall be responsible for seeking funding sources and preparing grant

applications, and shall prepare and submit quarterly reports to the Principal

Chief for distribution to the National Council.

[NCA 01–126, § 109, approved Aug. 9, 2001.]

Library References

Indians O132.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150, 152, 154 to 176.

SUBCHAPTER 3.

JURISDICTION AND VENUE

Section

1–301. Jurisdiction over Indian children domiciled in Indian country.

1–302. Jurisdiction over Indian children domiciled outside of Indian country.

1–303. Indian Child Welfare Act transfers from state courts.

1–304. Indian Child Welfare transfers from Tribal courts to the Muscogee (Creek)

Nation District Court.

1–305. Muscogee (Creek) Nation District Court transfers to other Tribal or state courts.

Cross References

Jurisdiction of Muscogee (Creek) Nation Courts, see Title 27, § 1–102.

§ 1–301. Jurisdiction over Indian children domiciled in Indian country

Except as otherwise provided by law, the District Court shall have exclusive

jurisdiction in child custody proceedings involving a Muscogee (Creek) child

domiciled in Indian country within the Muscogee (Creek) Nation and concurrent jurisdiction with the child’s Tribe in all cases involving an Indian child of

another Tribe domiciled in Indian country within the boundaries of the Muscogee (Creek) Nation, including the following types of proceedings: cases in

which the child has been made a ward of the District Court; foster care

placements; termination of parental rights; preadoptive placements; adoptive

placements; guardianships; transfer proceedings to or from a court of another

sovereign; child support; paternity actions; actions for judicial consent to the

marriage, employment or enlistment of a child, when such consent is required

by law; actions for writ of habeas corpus; and actions for the treatment or

commitment of a mentally ill or developmentally disabled child. The District

348

Title 6, § 1–303

GENERAL PROVISIONS

Court shall possess exclusive jurisdiction over all delinquency proceedings

involving Indian children and involving acts occurring in Indian country,

provided that such jurisdiction may be concurrent with the state in the case of

delinquency cases involving delinquent acts occurring both in Indian country

and outside Indian country.

[NCA 01–126, § 113, approved Aug. 9, 2001.]

Cross References

Adoptions of children, jurisdiction, see Title 6, § 1–1001.

Library References

Indians O134 to 136, 134(3), 501.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–302. Jurisdiction over Indian children domiciled outside of Indian

country

A. Concurrent jurisdiction. The District Court shall have concurrent jurisdiction with the state in child custody proceedings involving a Muscogee

(Creek) child who is not domiciled in Muscogee (Creek) Nation Indian country,

including foster care placements, termination of parental rights, pre-adoptive

placements, adoptive placements, guardianships, child support, paternity actions, actions for judicial consent to the marriage, employment or enlistment of

a child, when such consent is required by law, and for the treatment or

commitment of a mentally ill or developmentally disabled child.

B. Manner in which concurrent jurisdiction may be exercised. Concurrent

jurisdiction shall be exercised by the District Court in the following circumstances, provided that the child shall be made a ward of the court in such cases:

1. When a child custody proceeding has been filed in District Court, and no

other child custody proceedings has been held in the court of another jurisdiction; or

2. When a child custody proceeding has been filed in the court of another

sovereign and such proceeding involves a Muscogee (Creek) child and the case

has been transferred to the District Court pursuant to Title 6, §§ 1–303 and

1–304.

[NCA 01–126, § 114, approved Aug. 9, 2001.]

Cross References

Adoptions of children, jurisdiction, see Title 6, § 1–1001.

Library References

Indians O501.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–303. Indian Child Welfare Act transfers from state courts

A. Conditions. Pursuant to the Indian Child Welfare Act, 25 U.S.C.

§ 1911(b), any state court may transfer to the District Court herein any foster

349

Title 6, § 1–303

CHILDREN

care or parental rights termination proceeding subject to exclusive or concurrent Tribal jurisdiction involving any Indian child who is a member of or

eligible for membership in the Nation, if the District Court accepts jurisdiction

over the case.

B. Hearing on acceptance of transfer. The District Court shall determine, in

a transfer hearing initiated by the Nation or the child’s parent or Indian

custodian, whether the transfer to its jurisdiction is required (1) because the

District Court has exclusive jurisdiction over the case or (2) because the case is

subject to concurrent Tribal jurisdiction and would not be detrimental to the

best interest of the child. Such determination shall be made after the order of

transfer is received by the Court Clerk. In cases involving concurrent jurisdiction the Court may consider the following:

1. Whether the child or its family will be in need of special services for

physical or mental disease or defect which the Nation and its resources are

unable to adequately provide; and

2. If transfer is tendered prior to adjudication, whether the witnesses

necessary to adjudicate the case will be available. If the witnesses will probably

not appear the Court should decline to accept the transfer until after the

adjudication is completed; and

3. Any other matters which may adversely affect the Nation’s ability to

provide treatment or necessary services to the family.

C. Transfer procedures. A state court transferring a case to the Nation’s

jurisdiction under subsection A of this section shall transmit all documents and

legal and social records, or certified copies thereof, to the District Court, which

court shall proceed with the case as if the petition had been originally filed or

the adjudication had been originally made in this Court. Transfer cases shall be

assigned a District Court juvenile division case number as in other cases.

[NCA 01–126, § 115, approved Aug. 9, 2001.]

Library References

Indians O134(3), 501.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

Code of Federal Regulations

Reassumption of jurisdiction over child custody proceedings, see 25 CFR 13.1 et seq.

§ 1–304. Indian Child Welfare transfers from Tribal courts to the Muscogee

(Creek) Nation District Court

Any Tribal court or other CFR court may transfer to the District Court herein

any case involving a Muscogee (Creek) child, if the District Court finds that the

transfer would not be detrimental to the best interests of the child, pursuant to

the same requirements as Title 6, § 1–303.

[NCA 01–126, § 116, approved Aug. 9, 2001.]

Library References

Indians O134(3).

Westlaw Topic No. 209.

350

Title 6, § 1–305

GENERAL PROVISIONS

Code of Federal Regulations

Reassumption of jurisdiction over child custody proceedings, see 25 CFR 13.1 et seq.

§ 1–305. Muscogee (Creek) Nation District Court transfers to other Tribal

or state courts

A. Conditions. The District Court, absent objection by either parent, is

authorized to transfer any children’s case arising within the court’s jurisdiction,

said child not being a member or eligible for membership in the Nation, to the

Court of the child’s Indian Nation, or if the child is a non-Indian, to the courts

of the state where the child is a resident or domiciled, upon the petition of the

Prosecutor, either parent, a custodian or guardian, the Indian Nation of which

the child is a member or eligible for membership, or an appropriate official of

the child’s state.

er:

Considerations. In making such transfers the District Court may considThe best interests of the child;

2. Any special needs or mental or physical disease or defects of the child

and family and the ability of the Nation and the receiving jurisdiction to meet

those needs;

3. If transfer is requested prior to adjudication, whether witnesses necessary

to the adjudication can attend in the receiving jurisdiction;

Emotional, cultural, and social ties of the child and its family; and

5. The likelihood that the same child and family would return to the

Nation’s jurisdiction within a reasonable time and come before the District

Court again.

C. Order of transfer. Upon entering an order transferring a case as provided in this section, the Court shall serve a certified copy of the order of transfer,

the legal case file, and any social or police reports concerning the child’s case

to the Court Clerk of the receiving jurisdiction by certified mail, return receipt

requested. The District Court may retain physical custody of the child pending

an order or notice of acceptance from the receiving jurisdiction, and upon

receiving such order or notice, may close the case file and dismiss the case

subject to any necessary order for the protection of the child until completion of

physical transfer to the receiving jurisdiction.

[NCA 01–126, § 117, approved Aug. 9, 2001.]

Library References

Indians O132, 401, 501.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

Code of Federal Regulations

Reassumption of jurisdiction over child custody proceedings, see 25 CFR 13.1 et seq.

351

Title 6, § 1–305

CHILDREN

SUBCHAPTER 4.

PROCEDURE, GENERALLY

Section

1–401. Procedural requirements.

1–402. Hearings.

1–403. Jury trials.

1–404. Effect of proceedings.

1–405. Inspection of court records.

1–406. Expungement of delinquency or in need of supervision court records.

1–407. Exclusion of certain statements by alleged delinquent.

1–408. Appeals.

Cross References

Judicial procedures, generally, see Title 27, § 1–101 et seq.

§ 1–401. Procedural requirements

A. The rules of juvenile procedure herein set forth shall apply in all proceedings under this chapter. To the extent that any procedure is not specifically set

forth herein, the general rules of civil procedure shall apply.

B. In cases involving an allegation of delinquency by means of commission

of an offense, the adjudicatory hearing shall be held in conformity with the

rules of criminal procedure, and the child shall be entitled to all the rights,

privileges, and immunities of an accused in a criminal case.

C. The District Court shall have the authority by written court rule not

inconsistent with this chapter or other law of the Muscogee (Creek) Nation

setting forth rules of civil procedure and filed of record in the Court Clerk’s

office and National Council Secretary’s office to provide for any procedure or

form necessary for the efficient, orderly, and just resolution of cases under this

chapter.

[NCA 01–126, § 118, approved Aug. 9, 2001.]

Cross References

Criminal offenses, see Title 14, § 2–101 et seq.

Criminal procedure, see Title 14, § 1–101 et seq.

Rules and procedures of tribal courts, see Title 27, App. 1.

Tribal court proceedings, see Title 27, § 2–101 et seq.

Library References

Indians O132, 501, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–402. Hearings

A. Procedure. Hearings shall be held before the Court without a jury, except

as provided in Title 6, § 1–403, and may be conducted in an informal manner,

except in proceedings brought concerning an alleged delinquent. The general

public, including elected officials, shall be excluded unless the Court determines that it is in the best interest of the child to allow the general public to

attend. The Court shall admit only such persons as have an interest in the case

or the work of the Court, including persons whom the parents or Indian

352

Title 6, § 1–403

GENERAL PROVISIONS

custodian wish to be present unless an order has been entered authorizing the

general public to attend. Hearings may be continued from time to time as

ordered by court.

B. Record. An audio tape record shall be taken of all proceedings which

might result in the deprivation of custody. An audio tape record shall be made

in all other hearings, unless waived by the parties in the proceeding and so

ordered by the Judge.

C. Consolidated hearings. When more than one (1) child is named in a

petition alleging delinquency, need of supervision, or neglect or dependency,

the hearings may be consolidated; or heard separately at any stage of the

proceeding in the Court’s discretion.

D. Separate hearings. Children’s cases shall be heard separately from

adult’s cases, and the child or his parents, guardian, or other custodian may be

heard separately when deemed necessary by the Court.

E. Confidentiality. The name, picture, place of residence, or identity of any

child, parent, guardian, other custodian, or person appearing as a witness in

children’s proceedings under this chapter shall not be published in any newspaper or in any other publication nor given any other publicity unless for good

cause it is specifically permitted by order of the Court. Any person who violates

the provisions of this subsection is guilty of a misdemeanor and, upon conviction, thereof, shall be punished by a fine of not more than five hundred dollars

($500.00), or by imprisonment in the Court’s detention facilities for not more

than thirty (30) days, or by both such fine and imprisonment.

[NCA 01–126, § 119, approved Aug. 9, 2001.]

Cross References

Trials, see Title 27, § 2–109 et seq.

Library References

Indians O132, 519, 651.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–403. Jury trials

A. Demand for jury. The child, his parent or guardian, or any interested

party may demand a trial by jury of not more than six (6) persons:

1. In adjudicatory hearings concerning an alleged delinquent, deprived

child, or child in need of supervision;

In hearings seeking termination of parental rights;

In determining the parentage of a child under this chapter.

B. Failure to demand. Unless a jury is demanded, it shall be deemed to be

waived.

[NCA 01–126, § 120, approved Aug. 9, 2001; amended by NCA 06–059, § 1, approved

May 8, 2006.]

353

Title 6, § 1–403

CHILDREN

Cross References

Jury trial, generally, see Title 27, § 2–110 et seq.

Rules and procedures, jury trial, see Title 27, App. 1, Rule 11 et seq.

Library References

Indians O651.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–404. Effect of proceedings

A. No civil disability. No adjudication or disposition in proceedings under

this chapter shall impose any civil disability upon a child or disqualify him from

any personnel system of the Nation, military service application, appointment

or from holding an office of the Nation.

B. Admissibility of evidence in other proceedings. No adjudication, disposition, or evidence given in proceedings brought under this chapter shall be

admissible against a child in any criminal or other action or proceedings,

except in subsequent proceedings under this chapter concerning the same

child.

[NCA 01–126, § 121, approved Aug. 9, 2001.]

Library References

Indians O132, 520(3), 526.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–405. Inspection of court records

A. Right to inspect. Records of court proceedings shall be open to inspection by the parents or guardian, attorneys and other parties in proceedings

before the Court, and to any agency to which legal custody of the child has been

transferred, except records of court proceedings in formal adoption and formal

relinquishment shall be confidential and open to inspection only by Court

order.

B. No right to inspect. Probation counselors’ records and all other reports

of social and clinical studies shall not be open to inspection, except by consent

of Court.

[NCA 01–126, § 122, approved Aug. 9, 2001.]

Cross References

Review, lending or copying of court files, see Title 27, App. 1, Rule 15B.

§ 1–406. Expungement of delinquency or in need of supervision court

records

A. Petition. Any person who has been adjudicated delinquent or in need of

supervision, who was taken into custody on an allegation of delinquency or

need of supervision, or who was the subject of a petition for delinquency or

need of supervision later may petition the Court for the expungement of his

record and shall be so informed at the time of adjudication, or the Court, on its

354

GENERAL PROVISIONS

Title 6, § 1–407

own motion may initiate expungement proceedings concerning the record of

any child who has been under the jurisdiction of the Court. Such petition shall

be filed or such court order entered no sooner than two (2) years after the date

of termination of the Court’s jurisdiction over the person. Only by stipulation of

all parties involved may expungement be applied for prior to the expiration of

two (2) years from the date of termination of the Court’s jurisdiction or

termination of the Court’s supervision under an informal adjustment.

B. Hearing; notice. Upon the filing of a petition for expungement or

entering of a court order, the Court shall set a date for a hearing and shall

notify the Prosecutor and anyone else whom the Court has reason to believe

may have relevant information related to the expungement of the record,

including the child’s past or present foster parents and all agencies or officials

known to have relevant files relating to the individual.

C. Order. The Court shall order sealed all records in the petitioner’s case in

the custody of the Court and any records in the custody of any other agency or

official, if at the hearing the Court finds that:

1. The subject of the hearing has not been convicted of a felony or of a

misdemeanor involving moral turpitude and has not been adjudicated under

this chapter since the termination of the Court’s jurisdiction;

2. No proceeding concerning a felony, a misdemeanor involving moral

turpitude, or a petition under this chapter is pending or being instituted against

him; and

3. The rehabilitation of the person has been attained to the satisfaction of

the Court.

D. Expungement. Upon the entry of an order to seal the records, the

proceedings in the case shall be deemed never to have occurred, and all index

references shall be deleted, and the person, every agency, and the Court may

properly reply that no record exists with respect to such person upon any

inquiry in the matter. Copies of the order shall be sent to each agency or official

named therein.

E. Inspection of expunged records. Inspection of the records included in the

order may thereafter be permitted by the Court only upon petition by the

person who is the subject of such records and only to those persons named in

such petition.

F. Expungement upon dismissal of petition at adjudication. In any proceeding alleging delinquency or need-of-supervision in which the Court orders the

petition dismissed on the merits at adjudication, the Court may order the

records expunged. Such order of expungement may be entered without delay

upon petition of the child or any party or upon the Court’s own motion.

[NCA 01–126, § 123, approved Aug. 9, 2001.]

§ 1–407. Exclusion of certain statements by alleged delinquent

A. Inadmissibility of statements and admissions. No statements or admissions of a child made as a result of interrogation of the child by a law

enforcement official concerning acts alleged to have been committed by the

child which would constitute a crime if committed by an adult shall be

355

Title 6, § 1–407

CHILDREN

admissible in evidence against that child unless a parent, guardian, or legal

custodian of the child was present at such interrogation and the child and his

parent, guardian, or legal custodian were advised of the child’s right to remain

silent, that any statements made may be used against him in a court of law, the

right of the presence of an attorney during such interrogation, and the right to

have counsel appointed if so requested at the time of the interrogation if

available at no fee except that, if, to the extent such counsel is available for

appointment at no fee, legal counsel representing the child is present at such

interrogation, such statements or admissions may be admissible in evidence

even though the child’s parent, guardian, or legal custodian was not present.

B. Exceptions to exclusion. Notwithstanding the provisions of subsection A

of this section, statements or admissions of a child shall not be inadmissible in

evidence by reason of the absence of a parent, guardian, or legal custodian if

the child is emancipated from the parent, guardian, or legal custodian or if the

child is a runaway from outside the Court’s jurisdiction and is of sufficient age

and understanding.

[NCA 01–126, § 124, approved Aug. 9, 2001.]

Cross References

Criminal procedure, rights of defendant, see Title 14, § 1–303.

Library References

Indians O520(3), 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–408. Appeals

An appeal may be taken from any order, decree, or judgment of the Court in

the same manner as other civil appeals are taken. Initials shall appear on the

record on appeal in place of the name of the child and respondents. Appeals

shall be advanced on the calendar of the Appellate Court and shall be decided

at the earliest practical time. The Nation shall have the same right to appeal

questions of law in delinquency cases as exists in criminal cases.

[NCA 01–126, § 125, approved Aug. 9, 2001.]

Cross References

Appellate procedure, see Title 27, § 3–101 et seq.

Rules of Appellate Procedure, see Title 27, App. 2.

Library References

Indians O132, 542, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

SUBCHAPTER 5. ABUSE AND NEGLECT REPORTING

REQUIREMENTS; CENTRAL REGISTRY

Section

1–501. Legislative purpose.

356

Title 6, § 1–502

GENERAL PROVISIONS

Section

1–502. Persons required to report child abuse or neglect.

1–503. Required report of postmortem investigation.

1–504. Evidence of abuse and neglect.

1–505. Immunity from liability.

1–506. Communication not privileged.

1–507. Reporting procedures.

1–508. Confidentiality of reports of abuse or neglect.

1–509. Home study and other reports.

1–510. Children and Family Services Administration records.

1–511. Law enforcement records confidential.

1–512. Identity confidential.

1–513. Central registry.

1–514. Action upon receipt of report.

Cross References

Domestic and family violence, see Title 6, § 3–101 et seq.

Physical abuse of a child, see Title 14, § 2–313.

Sexual abuse of a person under the age of sixteen, see Title 14, § 2–315.

United States Code Annotated

Reporting of child abuse, see 18 U.S.C.A. § 1169.

§ 1–501. Legislative purpose

The National Council hereby declares that the complete reporting of child

abuse and neglect is a matter of concern and that in enacting this subchapter it

is the intent of the Nation to protect the children within the jurisdiction of the

Nation and to offer protective services in order to prevent any further harm to a

child suffering from abuse and neglect. It is the further intent of the Nation that

the various federal, state and Tribal medical, mental health, education and

social services agencies impacting on child welfare matters find a common

purpose through cooperative interaction.

[NCA 01–126, § 201, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5.

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants §§ 116 to 117.

§ 1–502. Persons required to report child abuse or neglect

A. Any person specified in subsection B of this section who has reasonable

cause to know or suspect that a child has been subjected to abuse or neglect or

who has observed the child being subjected to circumstances or conditions

which would reasonably result in abuse or neglect shall immediately report or

cause a report to be made of such fact to the CFSA or appropriate law

enforcement agency.

B. Persons required to report such abuse or neglect or circumstances or

conditions shall include any of the following:

Physician or surgeon, including a physician in training;

Child health associate or community health representative (CHR);

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Title 6, § 1–502

CHILDREN

Medical examiner or coroner;

Dentist;

Osteopath;

Optometrist;

Chiropractor;

Chiropodist or podiatrist;

Registered nurse or licensed practical nurse;

10. Hospital personnel engaged in the admission, care, or treatment of

patients;

11.

School official or employee;

12.

Social worker or worker in a family care home or child care center;

13.

Mental health professional;

14.

Any law enforcement personnel;

15.

The Prosecutor or his assistants.

C. In addition to those persons specifically required by this section to report

known or suspected child abuse or neglect and circumstances or conditions

which might reasonably result in abuse or neglect, any other person may report

known or suspected child abuse or neglect and circumstances or conditions

which might reasonably result in child abuse or neglect to the Tribal law

enforcement agency or CFSA.

D. Any Indian or non-Indian person subject to the jurisdiction of the

District Court who willfully violates the provisions of this section:

1. Shall be subject to a civil penalty not to exceed five hundred dollars

($500.00); and

Shall be liable for damages proximately caused thereby.

[NCA 01–126, § 202, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5.

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants §§ 116 to 117.

§ 1–503. Required report of postmortem investigation

A. Any person who is required to report known or suspected child abuse or

neglect who has reasonable cause to suspect that a child died as a result of

child abuse or neglect shall report such fact immediately to the appropriate law

enforcement agency and to the appropriate coroner or medical examiner. The

law enforcement agency and the coroner or medical examiner shall accept such

report for investigation and shall report their findings to the appropriate law

enforcement agency, the Child Protection Worker, the Prosecutor, and the

CFSA.

B. The CFSA shall forward a copy of such report to the central registry.

[NCA 01–126, § 203, approved Aug. 9, 2001.]

358

Title 6, § 1–506

GENERAL PROVISIONS

Library References

Indians O132.

Infants O13.5.

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants §§ 116 to 117.

§ 1–504. Evidence of abuse and neglect

A. Any child health associate, person licensed to practice medicine, registered nurse or licensed practical nurse, hospital personnel engaged in the

admission, examination, care or treatment of patients, medical examiner,

coroner, social worker, or local law enforcement officer who has before him a

child he reasonably believes has been abused or neglected may take or cause to

be taken color photographs of the areas of trauma visible on the child. If

medically indicated, such person may take or cause to be taken X-rays of the

child.

B. Any color photographs or X-rays which show evidence of child abuse

shall be immediately forwarded to a receiving agency.

[NCA 01–126, § 204, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5.

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants §§ 116 to 117.

§ 1–505. Immunity from liability

Any person participating in good faith in the making of a report or in a

judicial proceeding held pursuant to this chapter, the taking of color photographs or X-rays, or the placing in temporary custody of a child pursuant to

this subchapter or otherwise performing his duties or acting pursuant to this

chapter shall be immune from any liability, civil or criminal, that otherwise

might result by reason of such reporting. For the purpose of any proceedings,

civil or criminal, the good faith of any person reporting child abuse, any person

taking color photographs or X-rays, and any person who has legal authority to

place a child in protective custody shall be presumed.

[NCA 01–126, § 205, approved Aug. 9, 2001.]

Library References

Health O768.

Indians O132.

Infants O13.5(2).

Westlaw Topic Nos. 198H, 209, 211.

C.J.S. Hospitals § 44.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants § 117.

C.J.S. Mental Health §§ 123 to 124.

§ 1–506. Communication not privileged

The privileged communication between patient and physician and between

husband and wife shall not be a ground for excluding evidence in any judicial

proceedings resulting from a report pursuant to this subchapter.

[NCA 01–126, § 206, approved Aug. 9, 2001.]

Cross References

Spouse’s testimony, rights of defendant, see Title 14, § 1–303.

359

Title 6, § 1–506

CHILDREN

Library References

Indians O132, 520, 640.

Infants O13.5(1).

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 150 to 179.

C.J.S. Infants § 116.

§ 1–507. Reporting procedures

A. Reports of known or suspected child abuse or neglect made pursuant to

this subchapter shall be made immediately to the CFSA or Lighthorse Police

and shall be followed promptly by a written report prepared by those persons

required to report. The receiving agency shall forward a copy of its own report

to the central registry on forms supplied by CFSA.

Such reports, when possible, shall include the following information:

The name, address, age, sex, and race of the child;

The name and address of the parent, guardian or Indian custodian;

3. The nature and extent of the child’s injuries, including any evidence of

previous known or suspected abuse or neglect to the child or the child’s

siblings;

4. The names and addresses of the persons responsible for the suspected

abuse or neglect, if known;

The family composition;

6. The source of the report and the name, address, and occupation of the

person making the report;

Any action taken by the reporting source;

8. Any other information that the person making the report believes may be

helpful in furthering the purposes of this section.

C. A copy of the report of known or suspected child abuse or neglect shall

be transmitted immediately by the receiving agency to the Prosecutor’s office

and to the Lighthorse Police.

D. A written report from persons or officials required by this subchapter to

report known or suspected child abuse or neglect shall be admissible as

evidence in any proceeding related to child abuse.

[NCA 01–126, § 207, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5(1).

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants § 116.

§ 1–508. Confidentiality of reports of abuse or neglect

A. Except as provided in this section, reports of child abuse or neglect and

the name and address of any child, family or informant or any other identifying

information contained in such reports shall be confidential and shall not be

public information.

B. Disclosure of the name and address of the child and family and other

identifying information involved in such reports shall be permitted only when

360

Title 6, § 1–509

GENERAL PROVISIONS

authorized by a court for good cause. Such disclosure shall not be prohibited

when there is a death of a suspected victim or child abuse or neglect and the

death becomes a matter of public record, the subject of an arrest by a law

enforcement agency, or the subject of the filing of a formal charge by a law

enforcement agency.

C. Any person who violates any provision of this section shall be subject to a

civil penalty of not more than five hundred dollars ($500.00).

D. Only the following persons or agencies shall be given access to child

abuse or neglect records and reports:

1.1 The law enforcement agency or social services department investigating

a report of known or suspected child abuse or neglect, caring for, supervising

or treating a child or family which is the subject of the report or record,

including the Lighthorse Police, Attorney General, and the Muscogee (Creek)

Nation Children and Family Services Administration, including the Deputy

Director of Community Services, but excluding other administrators, personnel

and elected officials of the Muscogee (Creek) Nation of Oklahoma.

E. After a child who is the subject of a report reaches the age of eighteen

(18) years, access to his record under this section shall be permitted only if a

sibling or offspring of such child is before any person mentioned in subsection

D of this section and is a suspected victim of child abuse. The amount and type

of information released shall depend upon the source of the report and shall be

determined by regulations established by the manager of the central registry.

However, under no circumstances shall the information be released unless the

person requesting such information is entitled thereto as confirmed by the

manager of the central registry and the information released states whether or

not the report is founded or unfounded. A person given access to the names or

other information identifying the subject of a report shall not divulge or make

public any identifying information unless he is the Prosecutor or other law

enforcement official and the purpose is to initiate court action or unless he is

the subject of a report.

[NCA 01–126, § 208, approved Aug. 9, 2001; amended by NCA 06–059, § 1, approved

May 8, 2006.]

1 So in original.

Library References

Indians O132.

Infants O13.5(1).

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants § 116.

§ 1–509. Home study and other reports

A. Home study reports. Unless waived by the Court, the CFSA or other

agency designated by the Court shall make a home study and report in writing

in all children’s cases, except:

1. If the allegations of a petition filed under Title 6, § 1–707 are denied, the

study shall not be made until the Court has entered an order of adjudication;

and

2. The study and investigation in all adoptions shall be made as provided in

the provisions relating to adoptions.

361

Title 6, § 1–509

CHILDREN

B. Use of reports as evidence. For the purpose of determining proper

disposition of a child the general rules of evidence shall not apply, and written

reports and other material relating to the child’s mental, physical, and social

history may be received and considered by the Court along with other evidence.

However, the Court, if so requested by the child, his parent or guardian, or

other interested party, shall require that the person who wrote the report or

prepared the material, if available, appear as a witness and be subject to both

direct and cross-examination. In the absence of such request, the Court may

order the person who prepared the report or other material to appear if it finds

that the interest of the child, his parent or guardian, or other party to the

proceedings so requires. The Court shall inform the child, his parent or legal

guardian, or other interested party of the right of cross-examination concerning

any written report or other material as specified herein.

[NCA 01–126, § 209, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5(1).

Records O30.

Westlaw Topic Nos. 209, 211, 326.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants § 116.

C.J.S. Records §§ 74, 76, 78, 80, 112.

§ 1–510. Children and Family Services Administration records

All records of the Nation’s Children and Family Services Administration

related to child custody proceedings concerning all children’s cases under the

provisions of this chapter, and all records of any federal agency related to child

custody proceedings concerning all children’s cases under the provisions of this

chapter may not be inspected or disclosed to the public, including the names of

children taken into temporary custody or issued a summons, except:

act;

To the victim in each case when the child is found guilty of a delinquent

B. When the child has escaped from an institution to which he has been

committed;

By order of the Court;

When the Court orders the child to be held for criminal proceedings;

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

F. When the disclosure is to a Tribal, federal, or state officer, employee, or

agency in their official capacity who show a bona fide need for the information

requested to assist in apprehension, to conduct a current investigation, or as

otherwise provided by law of the Nation.

[NCA 01–126, § 210, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5(1).

Records O30.

Westlaw Topic Nos. 209, 211, 326.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants § 116.

C.J.S. Records §§ 74, 76, 78, 80, 112.

362

Title 6, § 1–513

GENERAL PROVISIONS

§ 1–511. Law enforcement records confidential

The records of law enforcement officers concerning all children’s cases or

children taken into temporary custody or issued a summons under the provisions of this chapter shall be maintained separately from the records of arrest

and may not be inspected by or disclosed to the public, including the names of

children taken into temporary custody or issued a summons, except:

act;

To the victim in each case when the child is found guilty of a delinquent

B. When the child has escaped from an institution to which he has been

committed;

By order of the Court;

When the Court orders the child to be held for criminal proceedings;

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

F. When the disclosure is to a Tribal, federal, or state officer, employee, or

agency in their official capacity who show a bona fide need for the information

requested to assist in apprehension, to conduct a current investigation, or as

otherwise provided by law of the Nation.

[NCA 01–126, § 211, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5(1).

Records O30.

Westlaw Topic Nos. 209, 211, 326.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants § 116.

C.J.S. Records §§ 74, 76, 78, 80, 112.

§ 1–512. Identity confidential

No fingerprint, photograph, name, address, or other information concerning

identity of a child taken into temporary custody or issued a summons under the

provisions of this subchapter may be transmitted to the Federal Bureau of

Investigation or any other person or agency except a local law enforcement

agency when necessary to assist in apprehension or to conduct a current

investigation, or when the Court orders the child to be held for criminal

proceedings.

[NCA 01–126, § 212, approved Aug. 9, 2001.]

§ 1–513. Central registry

A. When the National Council determines that sufficient funding and resources are available, the Nation shall establish a central registry of child

protection for the purpose of maintaining a registry of information concerning

each case of child abuse reported under this subchapter.

The central registry shall contain but shall not be limited to:

All information in any written report received under this subchapter;

2. Record of the final disposition of the report, including services offered

and services accepted;

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Title 6, § 1–513

CHILDREN

3. The plan for rehabilitative treatment;

4. The name and identifying data, date, and circumstance of any person

requesting or receiving information from the central registry;

5. Any other information which might be helpful in furthering the purposes

of this chapter.

C. The CFSA Manager may employ a manager of the central registry on a

part-time or full-time basis if funds are available, or may assign the duties of

the manager of central registry to a CFSA employee or employees on a parttime basis. The person performing the duties of the manager shall have charge

of said registry. Subject to available appropriations, the manager shall equip his

office so that data in the central registry may be made available during

nonbusiness hours through the use of computer technology. Such computerized

records shall be password coded and only CFSA personnel, judges, justices and

law enforcement personnel shall have access to the password.

D. After a child who is the subject of a report reaches the age of eighteen

(18) years, access to his record under this section shall be permitted only if a

sibling or offspring of such child is before any person mentioned in subsection

B of Title 6, § 1–502 and is a suspected victim of child abuse. The amount and

type of information released shall depend upon the source of the report and

shall be determined by regulations established by the manager of the central

registry. However, under no circumstances shall the information be released

unless the person requesting such information is entitled thereto as confirmed

by the manager of the central registry and the information released states

whether or not the report is founded or unfounded. A person given access to

the names or other information identifying the subject of a report shall not

divulge or make public any identifying information unless he is the Prosecutor

or other law enforcement official and the purpose is to initiate court action or

unless he is the subject of a report.

E. Unless an investigation of a report conducted pursuant to this subchapter

determines there is some credible evidence of alleged abuse, all information

identifying the subject of the report shall be expunged from the central registry

forthwith. The decision to expunge the record shall be made by the manager of

the central registry based upon the investigation made by the CFSA or the

enforcement agency.

F. In all other cases, the record of the reports to the central registry shall be

sealed no later than ten (10) years after the child’s eighteenth (18th) birthday.

Once sealed, the record shall not otherwise be available unless the Manager of

the central registry, pursuant to rules promulgated by CFSA and upon notice to

the subject of the report, gives his personal approval for an appropriate reason.

In any case and at any time, the manager may amend, seal, or expunge any

record upon good cause shown and notice to the subject of the report.

G. At any time the subject of a report may receive, upon request, a report of

all information pertinent to the subject’s case contained in the central registry,

but the manager of the central registry is authorized to prohibit the release of

data that would identify the person who made the report or who cooperated in

a subsequent investigation which he reasonably finds to be detrimental to the

safety or interest of such person.

364

Title 6, § 1–514

GENERAL PROVISIONS

H. At any time subsequent to the completion of the investigation, a subject

of the report may request the manager to amend, seal, or expunge the record of

the report. If the manager refuses to does not act within a reasonable time, but

in no event later than thirty (30) days after such request, the subject shall have

the right to a fair hearing before the District Court to determine whether the

record of the report in the central registry should be amended, sealed, or

expunged on the grounds that it is inaccurate or it is being maintained in a

manner inconsistent with this subchapter. The CFSA shall be given notice of

the hearing. The burden in such a hearing shall be on the CFSA. In such

hearings the fact that there was such a finding of child abuse or neglect shall be

presumptive evidence that the report was substantiated.

I. Written notice of any amendment, sealing, or expungement made pursuant to the provisions of this chapter shall be given to the subject of such report

and to the CFSA. The latter, upon receipt of such notice, shall take similar

action regarding such information in its files.

J. Any person who willfully permits or who encourages the release of data

or information contained in the central registry to persons not permitted access

to such information by this subchapter shall be subject to a civil penalty not in

excess of five hundred dollars ($500.00) and any actual damages sustained.

K. The CFSA shall adopt such rules and regulations for the central registry

as may be necessary to encourage cooperation with other Nations, states and

the National Center on Child Abuse and Neglect.

[NCA 01–126, § 213, approved Aug. 9, 2001.]

Library References

Indians O132.

Infants O13.5(1).

Records O30.

Westlaw Topic Nos. 209, 211, 326.

C.J.S. Indians §§ 150, 152, 154 to 176.

C.J.S. Infants § 116.

C.J.S. Records §§ 74, 76, 78, 80, 112.

§ 1–514. Action upon receipt of report

A. The Muscogee (Creek) Nation Children and Family Services Administration (CFSA) shall make a thorough investigation immediately upon receipt of

any report of known or suspected child abuse or neglect pursuant to cooperative agreement between the two agencies. The immediate concern of such

investigation shall be the protection of the child.

B. The investigation, to the extent that it is reasonably possible, shall

include:

The nature, extent, and cause of the abuse or neglect;

The identity of the person responsible for such abuse or neglect;

The names and conditions of any other children living in the same place;

4. The environment and the relationship of any children therein to the

person responsible for the suspected abuse or neglect;

All other data deemed pertinent.

C. The investigation shall, at a minimum, include a visit to the child’s place

of residence or place of custody and to the location of the alleged abuse or

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Title 6, § 1–514

CHILDREN

neglect and an interview with or observance of the child reportedly having been

abused or neglected. If admission to the child’s place of residence cannot be

obtained, the District Court, upon good cause shown, shall order the responsible person to allow the interview, examination and investigation.

D. The receiving agency responsible for the coordination of all investigations of all reports of known or suspected child abuse or neglect shall arrange

for such investigations to be conducted by persons trained to conduct either the

complete investigation or such parts thereof as may be assigned. The receiving

agency may conduct the investigation independently or in conjunction with

another appropriate agency or may arrange for the initial investigation to be

conducted by another agency with personnel having appropriate training and

skill. The receiving agency shall provide for persons to be continuously available to respond to such reports. Nations and state and federal agencies may

cooperate to fulfill the requirements of this subsection. As used in this subsection, ‘‘continuously available’’ means the assignment of a person to be near an

operable telephone not necessarily located in the premises ordinarily used for

business by the receiving agency or to have such arrangements made through

agreements with local law enforcement agencies.

E. The receiving agency shall refer its investigation report to the Child

Protection Worker. Upon receipt of a report, if the CFSA reasonably believes

abuse or neglect has occurred, it shall immediately offer social services to the

child who is the subject of the report and his family. If, before the investigation

is completed, the opinion of the investigators is that assistance of the appropriate law enforcement agency is necessary for the protection of the child or other

children under the same care, the law enforcement agency and the Prosecutor

shall be notified. If immediate removal is necessary to protect the child or other

children under the same care from further abuse, the child or children may be

placed in protective custody in accordance with applicable provisions of this

chapter.

F. If a local law enforcement agency receives a report of known or suspected child abuse or neglect, it shall first attempt to contact the receiving agency

in order to refer the case for investigation. If the local law enforcement agency

is unable to contact the receiving agency, it shall make a complete investigation

and may request the Prosecutor to institute appropriate legal proceedings on

behalf of the subject child or other children under the same care. The law

enforcement agency, upon receipt of a report and upon completion of any

investigation it may undertake, shall immediately forward a summary of the

investigatory data plus all relevant documents to the CFSA.

[NCA 01–126, § 301, approved Aug. 9, 2001.]

SUBCHAPTER 6. SEARCH WARRANTS;

CUSTODY OR DETENTION

Section

1–601. Search warrants for the protection of children.

1–602. Issuance and return of search warrant.

1–603. Expiration of search warrant.

366

Title 6, § 1–602

GENERAL PROVISIONS

Section

1–604. Children taken into custody prior to filing of petition.

1–605. Detention or release of child; medical examination and treatment; notice and

hearing.

1–606. Notification of court officers.

1–607. Temporary care and shelter.

1–608. Conditions of detention of child; detention or confinement in adult facility.

1–609. Court-ordered release.

1–610. Authorized medical treatment.

1–611. Court ordered commitment for observation.

Cross References

Criminal procedure, search and seizure, see Title 14, § 1–306.

§ 1–601. Search warrants for the protection of children

A. Authority to issue. A search warrant may be issued by the District Court

to search any place for the recovery of any Indian child believed to be a

delinquent child, a child in need of supervision, a child in need of treatment or

a neglected or abused child and located within Indian country subject to the

Court’s jurisdiction.

B. Warrant requirements. Such warrant shall be issued only on the conditions that the application for the warrant shall:

1. Be in writing and supported by affidavit sworn to or affirmed before the

Court;

Name or describe with particularity the child sought;

3. State that the child is believed to be a delinquent child, a child in need of

supervision, a child in need of treatment or a neglected or abused child and the

reasons upon which such belief is based;

State the address or legal description of the place to be searched; and

5. State the reasons why it is necessary to proceed pursuant to this section

instead of proceeding by issuance of a summons.

[NCA 01–126, § 302, approved Aug. 9, 2001.]

Library References

Indians O640.

Searches and Seizures O102 to 108.

Westlaw Topic Nos. 209, 349.

C.J.S. Indians §§ 151 to 179.

C.J.S. Searches and Seizures §§ 175 to 186,

188 to 193, 199 to 200, 203 to 205.

§ 1–602. Issuance and return of search warrant

A. Issuance. If the Court is satisfied that grounds for the application exist or

that there is probable cause to believe that they exist, it shall issue a search

warrant identifying by name or describing with particularity the child sought

and the place to be searched for the child.

B. Service. The search warrant shall be directed to any law enforcement

officer authorized by law to execute it wherein the place to be searched is

located. The warrant shall be served in the daytime unless the application for

the warrant alleges that it is necessary to conduct the search at some other

time, in which case the Court may so direct. A copy of the warrant, the

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Title 6, § 1–602

CHILDREN

application therefore, and the supporting affidavit shall be served upon the

person in possession of the place to be searched and where the child is to be

sought, or if no one be home, a copy shall be left in plain sight within the place

searched.

C. Custody of child. If the child is found, the child shall be taken into

custody, transported to and placed in the detention or shelter facility.

D. Return. The warrant shall be returned to the issuing court, immediately

upon service, and the officer shall subscribe on the warrant his name, the date

and time of service, the place where the child was delivered by him and his

fees. A copy shall be delivered to the Prosecutor. If the child was not found,

such information should be subscribed on the warrant.

[NCA 01–126, § 303, approved Aug. 9, 2001.]

Library References

Indians O640.

Searches and Seizures O123, 124, 150.

Westlaw Topic Nos. 209, 349.

C.J.S. Indians §§ 151 to 179.

C.J.S. Searches and Seizures §§ 173 to 174,

204 to 205, 225 to 243, 274 to 275.

§ 1–603. Expiration of search warrant

A search warrant for the protection of a child shall be null and void if not

served within ten (10) days of the date of issuance and a void warrant should be

returned with the reason for non-service subscribed thereon.

[NCA 01–126, § 304, approved Aug. 9, 2001.]

§ 1–604. Children taken into custody prior to filing of petition

A. Custody without court order. A child may be taken into custody prior to

the filing of a petition by a peace officer without a court order if the child is

found violating any law, or if the child is willfully and voluntarily absent from

the home of the child without the consent of the parent, guardian or legal

custodian for a substantial length of time or without intent to return, or if the

child’s surroundings are such as to endanger the welfare of the child.

B. Custody with court order. A child may be taken into custody prior to the

filing of a petition pursuant to an order of the District Court issued on the

application of the Prosecutor. The application presented by the Prosecutor may

be supported by a sworn affidavit which may be based upon information and

belief. The application shall state facts sufficient to demonstrate to the court

that there is reasonable suspicion to believe the child is in need of protection

due to abandonment, abuse or neglect, or is in surroundings that are such as to

endanger the welfare of the child. The Court order may be written or oral,

provided, that if the order is issued orally, the Judge shall reduce the order to

writing within twenty-four (24) hours of the oral issuance of the order. The

Court order may be transmitted to the Court Clerk by facsimile, and the

facsimile copy filed stamped upon receipt, provided that the original order shall

be delivered to the Court Clerk and attached to the file stamped facsimile copy

within ten (10) days of the date of filing the facsimile copy.

[NCA 01–126, § 305, approved Aug. 9, 2001.]

368

Title 6, § 1–605

GENERAL PROVISIONS

Library References

Indians O135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–605. Detention or release of child; medical examination and treatment;

notice and hearing

A. Custody of alleged delinquent child or child in need of supervision.

Whenever a child is taken into custody as a delinquent child or a child in need

of supervision, the child shall be detained or be released to the custody of his

parent, guardian, attorney or custodian, upon the written promise of such

parent, guardian, attorney or custodian to bring the child to the Court at the

time fixed. If detained, such child shall be taken immediately before a Judge of

the District Court or to the place of detention or shelter designated by the

Court. If no Judge be available locally, the person having the child in custody

shall immediately report his detention of the child to the Chief Judge, provided

that the child shall not be detained in custody beyond the next judicial day or

for good cause shown due to problems of arranging for and transporting the

child to and from a regional juvenile detention center, beyond the next two (2)

judicial days unless the court shall so order after a detention hearing to

determine if there exists probable cause to detain the child. If the latter Judge

cannot be reached, such detention shall be reported immediately to any Judge

serving on the Court. If detained, a reasonable bond for release shall be set.

Pending further disposition of the case, a child whose custody has been

assumed by the Court may be released to the custody of a parent or other

person appointed by the Court, or be detained in such place as shall be

designated by the Court, subject to further order.

B. Custody of alleged deprived child. Whenever a child is taken into custody

as a deprived child, he shall be taken to a shelter, hospital, foster home or other

appropriate place as designated by the Court or he shall be taken immediately

before a judge of the District Court for the purpose of obtaining an order for

protective custody. When a child has been taken into custody as a deprived

child without a court order, the peace officer or Child Protection Worker shall

immediately report the fact of the detention of the child to a Judge of the

District Court. If no Judge is available locally, the detention shall be reported

immediately to the Chief Judge, or if the Chief Judge cannot be reached, then to

any Judge regularly serving the Court. Within the next two (2) judicial days

following the child being taken into custody, and thereafter at such intervals as

may be determined by the Court, the Court shall conduct a hearing to determine whether the child should remain in protective custody or be released to

the parent guardian, legal custodian or another responsible person pending

further proceedings pursuant to this subchapter. The parent or legal guardian

of the child shall be given immediate notice of the custody of the child

whenever possible and prior adequate notice of the hearing. The Court may

release an alleged deprived child from protective custody upon such conditions

as the court finds reasonably necessary for the protection of the child and the

Court shall determine whether the allegations regarding the child are such that

additional time for the filing of a petition pursuant to this chapter is warranted.

369

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C. Custody of alleged child in need of treatment. Whenever a child is taken

into custody as a child in need of treatment, he shall be taken to a shelter,

hospital, foster home or other appropriate place as designated by the Court or

he shall be taken immediately before a judge of the District Court for the

purpose of obtaining an order for protective custody. When a child has been

taken into custody as a child in need of treatment without a court order, the

peace officer or Child Protection Worker shall immediately report the fact of

the detention of the child to a Judge of the District Court. If no Judge is

available locally, the detention shall be reported immediately to the Chief

Judge, or if the Chief Judge cannot be reached, then to any Judge regularly

serving the Court. The parent or legal guardian of the child shall be given

immediate notice of the custody of the child whenever possible and prior

adequate notice of any hearing pursuant to this subsection. Within the next two

(2) judicial days following the child being taken into custody, and thereafter at

such intervals as may be determined by the Court, the Court shall conduct a

hearing to determine whether the child should remain in protective custody or

be released to the parent, guardian, legal custodian or another responsible

person pending further proceedings pursuant to this chapter. The Court may

release an alleged child in need of treatment from protective custody upon such

conditions as the Court finds reasonably necessary for the protection of the

child or others and the Court shall determine whether the allegations regarding

the child are such that additional time for the filing of a petition pursuant to

this chapter is warranted. Any protective order of the Court pursuant to this

subsection for a mental health examination of the child shall be provided. After

a prescreening examination and a determination by a qualified medical health

professional that there is reasonable cause to believe that as a result of a

demonstrable mental illness there exists an imminent danger that the child will

intentionally or unintentionally seriously physically injure himself or another

person, the child may be admitted to a hospital or mental health facility on an

emergency psychiatric basis. Except upon an order of the court for an inpatient

mental health examination of the child, such emergency psychiatric admission

shall be for not more than two (2) judicial days, excluding weekends and legal

holidays.

[NCA 01–126, § 306, approved Aug. 9, 2001.]

Library References

Indians O135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–606. Notification of court officers

Whenever an officer takes a child to a detention or shelter facility, or admits

a child to a medical facility, and determines not to release said child, the officer

who took the child to a detention or shelter facility shall notify the Prosecutor,

the CFSA, and any agency or persons so designated by the Court at the earliest

opportunity that the child has been taken into custody and where he has been

taken. He shall also promptly file a brief written report with the Prosecutor, the

CFSA, and any agency or person so designated by the Court stating the facts

which led to the child being taken into custody and the reason why the child

370

Title 6, § 1–608

GENERAL PROVISIONS

was not released. This report shall be filed within twenty-four (24) hours

excluding Saturdays, Sundays, and legal holidays.

[NCA 01–126, § 307, approved Aug. 9, 2001.]

Library References

Indians O135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–607. Temporary care and shelter

A. Temporary shelter. A child who must be taken from his home but who

does not require physical restriction shall be given temporary care in a shelter

facility approved by the CFSA and designated by the Court or the CFSA and

shall not be placed in detention.

B. Temporary shelter in child’s home. Upon application of the CFSA the

Court may find that it is not necessary to remove a child from his home to a

temporary shelter facility and may provide temporary shelter in the child’s

home by authorizing a representative of the CFSA, if emergency caretaker

services are available, to remain in the child’s home with the child until a

parent, or legal guardian, or relative of the child enters the home and expresses

willingness and has the apparent ability, as determined by the CFSA, to resume

charge of the child, but in no event shall such period of time exceed twenty-four

(24) hours. In the case of a relative, the relative is to assume charge of the child

until a parent or legal guardian enters the home and expresses willingness and

has the apparent ability, as determined by the CFSA, to resume charge of the

child. The Manager of the CFSA shall designate in writing the representatives

of CFSA authorized to perform such duties. The Court order allowing emergency shelter in the child’s home may be written or oral, provided, that if consent

is given verbally, the Judge shall reduce the consent given to writing within

twenty-four hours.

[NCA 01–126, § 308, approved Aug. 9, 2001.]

Library References

Indians O135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–608. Conditions of detention of child; detention or confinement in

adult facility

A. Basic requirements. When a child is taken into custody pursuant to the

provisions of this chapter, the child shall be detained only if it is necessary to

assure the appearance of the child in court or for the protection of the child or

the public, pursuant to the following guidelines:

1. No pre-adjudicatory or predisposition detention or custody order shall

remain in force and effect for more than thirty (30) days. The Court for good

and sufficient cause shown, may extend the effective period of such an order for

an additional period not to exceed sixty (60) days.

2. Whenever the Court orders a child to be held in a juvenile detention

facility, as that term is defined in this chapter, an order for secure detention

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CHILDREN

shall remain in force and effect for not more than ten (10) days after such

order. Upon an application of the Prosecutor and after a hearing on such

application, the Court, for good and sufficient cause may allow an additional

period not to exceed ten (10) days after such hearing. The total period of preadjudicatory or predisposition shall not exceed the ninety (90) day limitation

specified in paragraph 1 of this subsection. The child shall be present at the

hearing on the application for extension unless, as authorized and approved by

the court, the attorney for the child is present at the hearing and the child is

available to participate in the hearing via telephone conference communication.

For the purpose of this paragraph, ‘‘telephone conference communication’’

means use of a telephone device that allows all parties, including the child, to

hear and be heard by the other parties at the hearing. After the hearing, the

Court may order continued detention in a juvenile detention center, may order

the child detained in an alternative to secure detention, or may order the

release of the child from detention.

3. No child alleged or adjudicated to be deprived, in need of supervision or

in need of treatment shall be confined in any jail, adult lockup or adult

detention facility. No child shall be transported or detained in association with

criminal, vicious or dissolute persons.

4. Except as otherwise authorized by this section a child who has been

taken into custody as a deprived child, a child in need of supervision or a child

in need of treatment, may not be placed in any detention facility pending court

proceedings, but must be placed in shelter care or foster care, or released to the

custody of his parents or some other responsible party. When a child is taken

into custody as a child in need of supervision as a result of being a runaway, the

Court may order the child placed in a juvenile detention facility pending Court

proceedings if it finds said detention to be essential for the safety of the child.

B. Prohibition regarding secure detention. No child may be placed in

secure detention unless:

1. The child is an escapee from a correctional facility or community correctional program or placement; or

2. The child is a fugitive from another jurisdiction with a warrant on a

delinquency charge or confirmation of delinquency charges by the home

jurisdiction; or

The child is seriously assaultive or destructive towards others or himself;

4. The child is detained for the commission of a crime that would constitute

a serious act; or

5. The child is detained for the commission of a crime that would constitute

a habitual criminal act; or

6. The child is currently charged with a felony or misdemeanor and is on

probation or parole on a prior delinquent offense, is on pre-adjudicatory

community supervision, is currently on release status on a prior delinquent

offense, or has willfully failed or there is reason to believe that the child will

willfully fail to appear for District Court proceedings.

372

GENERAL PROVISIONS

Title 6, § 1–608

C. Prohibition regarding use of adult secure detention facilities; exceptions. Except as otherwise provided in this section, no child may be placed in

secure detention in a jail, adult lockup or other adult detention facility unless:

the child is detained for the commission of a crime that would constitute felony

if committed by an adult; and the child is awaiting an initial court appearance

which is scheduled within twenty-four (24) hours after being taken into custody,

excluding weekends and holidays; and there is no existing acceptable alternative placement for the child; and the jail, adult lockup or adult detention facility

meets the requirements for licensor of state juvenile detention facilities, is

appropriately licensed, and provides sight and sound separation for juveniles,

including total separation between juveniles and adult facility spatial areas such

that there could be no haphazard or accidental contact between juvenile and

adult residents in the respective facilities, total separation in all juvenile and

adult program activities within the facilities, including recreation, education,

counseling, health care, dining, sleeping and general living activities and

separate juvenile and adult staff, specifically direct care staff such as recreation,

education and counseling. Specialized services staff, such as cooks, bookkeepers, and medical professionals who are not normally in contact with detainees

or whose infrequent contacts occur under conditions of separation of juveniles

and adults can serve both.

D. Limited use of adult secure facilities. Nothing in this section shall

preclude a child who is detained for the commission of a crime that would

constitute a felony if committed by an adult, or a child who is an escapee from

a juvenile training school or group home from being held in any jail certified by

the Oklahoma Department of Health, police station or similar law enforcement

offices for up to six (6) hours for purposes of identification, processing or

arranging for transfer to a secure detention or alternative to secure detention.

Such holding shall be limited to the absolute minimum time necessary to

complete these actions. The time limitations for holding a child in a jail for the

purposes of identification, processing or arranging transfer established by this

section shall not include the actual travel time required for transporting a child

from a jail to a juvenile detention facility or alternative to secure detention. The

time limitations for holding a child in jail for the purposes of identification,

processing or arranging transfer established by this section shall not include

the actual travel time required for transporting a child from a jail to a juvenile

detention facility or alternative to secure detention. Whenever the time limitations established by this subsection are exceeded, this circumstance shall not

constitute a defense in a subsequent delinquency or criminal proceeding.

E. Use of jail for runaways. Notwithstanding the provisions of this section a

child who is alleged to be a runaway from another Indian Nation’s jurisdiction

or a state may be held in a detention facility or jail up to seven days, during

which time arrangements shall be made for returning the child to his parent, or

legal custodian.

F. Detention hearing for child in delinquency proceedings involving alleged

felony crime. No child taken to a detention or shelter facility without a court

order as the result of an allegedly delinquent act which would constitute a

major crime if committed by an adult shall be released from such facility if in

writing a law enforcement agency has requested that a detention hearing be

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CHILDREN

held to determine whether the child’s immediate welfare or the protection of

the community requires that he be detained. No such child shall thereafter be

released from detention except after a hearing, reasonable advanced notice of

which has been given to the Prosecutor, alleging new circumstances concerning

the further detention of the child. When, following a detention hearing the

Court orders further detention of a child, a petition alleging the child to be

delinquent shall be filed with the Court without unnecessary delay if one has

not been previously filed, and the child shall be held in detention pending a

hearing on the petition. Nothing herein shall be construed as depriving a child

of the right to bail under the same circumstances as an adult.

G. Contracts for juvenile detention facilities. The CFSA shall initiate negotiations for a contract on behalf of the Muscogee (Creek) Nation with any state

juvenile detention facility for the providing of detention services pursuant to

10A O.S. 2–3–101 G, provided that such contract is subject to approval by the

Principal Chief and National Council.

[NCA 01–126, § 309, approved Aug. 9, 2001.]

Library References

Indians O135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–609. Court-ordered release

At any time prior to the filing of a petition and entry of an emergency custody

order on that petition, the Court may order the release of any child from

detention or shelter care without holding a hearing, either without restriction

or upon written promise of the parent, guardian, or legal custodian to bring the

child to the Court at a time set or to be set by the Court.

[NCA 01–126, § 310, approved Aug. 9, 2001.]

Library References

Indians O135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–610. Authorized medical treatment

A. Emergency medical treatment without court order. When any child is

taken into custody pursuant to this chapter and it reasonably appears to the

police officers, child protection worker or person acting pursuant to court

order that the child is in need of medical treatment to preserve his health, any

police officer, any child protection worker or person acting pursuant to court

order shall have the authority to authorize medical examination and medical

treatment for any child found to be in need of medical treatment as diagnosed

by a competent medical authority in the absence of a parent or guardian who is

competent to authorize medical treatment. The officer or the employee of the

court or person acting pursuant to court order shall authorize said medical

treatment only after exercising due diligence to locate the parent, guardian or

other person legally competent to authorize said medical treatment. The parent,

374

Title 6, § 1–611

GENERAL PROVISIONS

guardian or custodian of the child shall be responsible for such medical

expenses as ordered by the court. No peace officer, employee of the court or

person acting pursuant to court order authorizing such treatment in accordance with the provisions of this section for any child found in need of such

medical treatment shall have any liability, civil or criminal, for giving such

authorization.

B. Court order for medical treatment prior to adjudication. At any time

after a child is taken into custody with or without a court order and prior to

adjudication on the merits:

1. When the Court finds that emergency medical, surgical, or dental treatment is required for a child in CFSA custody it may authorize such treatment

or care if the parents, guardian, or legal custodian are not immediately

available to give their consent or to show cause why such treatment should not

be ordered. The power to consent to emergency medical care may be delegated

by the Court to the agency or person having physical custody of the child

pursuant to this chapter or pursuant to court order.

2. After making a reasonable effort to obtain the consent of the parent,

guardian, or other legal custodian, and after a hearing on notice the Court may

authorize or consent to non emergency medical, surgical, or dental treatment

or care for a child in CFSA custody.

C. Court order for medical treatment after adjudication. After a child has

been adjudicated a ward of the Court, the Court may consent to any necessary

emergency, preventive, or general medical, surgical, or dental treatment or

care, or may delegate the authority to consent thereto to the agency or person

having custody of the child.

[NCA 01–126, § 311, approved Aug. 9, 2001.]

Library References

Health O911.

Indians O640.

Westlaw Topic Nos. 198H, 209.

C.J.S. Indians §§ 151 to 179.

C.J.S. Physicians, Surgeons, and Other Health

Care Providers § 116.

C.J.S. Right to Die §§ 4, 23 to 26, 51, 53.

§ 1–611. Court ordered commitment for observation

If it appears that any child being held in detention or shelter may be mentally

ill developmentally disabled, or has sustained any trauma which may result in a

delayed medical danger or injury, the Court shall place the child in a designated facility approved by the Court for seventy-two (72) hour treatment and

evaluation. Upon the advice of a physician the treatment and evaluation period

may be extended for a period not exceeding ten (10) days.

[NCA 01–126, § 312, approved Aug. 9, 2001.]

Library References

Indians O640.

Infants O227(1).

Westlaw Topic Nos. 209, 211.

C.J.S. Indians §§ 151 to 179.

C.J.S. Infants §§ 24 to 25, 41, 43, 46 to 48, 71

to 95.

375

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CHILDREN

SUBCHAPTER 7.

ADJUDICATION

Section

1–701. Court intake.

1–702. Prosecutor intake.

1–703. Deferred adjudication.

1–704. Deferred adjudication admissible.

1–705. Court diversion by stipulation.

1–706. Limitation on diversions.

1–707. Filing petition; time limits when child already in custody; order to remove

child from home.

1–708. Petition heading.

1–709. Petition contents.

1–710. Summons.

1–711. When summons unnecessary.

1–712. Additional parties to be summoned.

1–713. Service of summons.

1–714. Failure to appear.

1–715. Appointment of guardian ad litem.

1–716. Notice of legal rights.

1–717. Adjudicatory hearing.

1–718. Mentally ill and developmentally disabled children.

1–719. Dismissal of petition.

1–720. Sustaining petition.

1–721. Temporary orders.

§ 1–701. Court intake

A. Whenever it appears to a law enforcement officer or any other person

that a child is or appears to be within the Court’s jurisdiction, by reason of

delinquency, need of supervision, need of treatment, neglect or abuse, the law

enforcement officer or other person may refer the matter to the CFSA, which

shall determine whether the interests of the child or of the community requires

that further action be taken.

B. If the CFSA worker determines that the interests of the child or of the

community require that court action be taken, he shall request in writing the

Prosecutor to file a petition and deliver a copy of the entire case file to the

Prosecutor. The file shall include without limitation, the initial referral, the

investigative report, and all available police reports, medical reports and other

relevant documents.

C. If the CFSA worker is unable to determine whether the interests of the

child or of the Nation require that court action be taken from information

available to him, he may investigate or refer the matter to another agency

designated by the Court for a preliminary investigation and recommendations

as to filing a petition or as to initiating an informal adjustment pursuant to this

chapter.

D. If the CFSA worker determines that the interests of the child or of the

Nation do not require court action, the CFSA may assist the family in development of a voluntary treatment plan and/or offer such social services and make

such referrals to other agencies as may be feasible to help the family with any

problems they may have.

[NCA 01–126, § 401, approved Aug. 9, 2001.]

376

Title 6, § 1–703

GENERAL PROVISIONS

Library References

Indians O134, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–702. Prosecutor intake

A. Upon receiving a request to file a petition and the accompanying reports

and files from the CFSA, the Prosecutor shall review the case file, reports, and

any witness statements to determine if there is sufficient evidence which will be

admissible under the applicable evidentiary rules to establish the jurisdiction of

the District Court over the child.

B. If the Prosecutor determines that there is not sufficient evidence available to establish the jurisdiction of the District Court over the child, he shall, in

writing, refuse to file the requested petition, or, in his discretion, may request

the appropriate law enforcement or child welfare agency to conduct a further

investigation into the matter.

C. If the Prosecutor determines that sufficient evidence is available to

establish the jurisdiction of the District Court over the child, he shall file a

petition concerning the child.

[NCA 01–126, § 402, approved Aug. 9, 2001.]

§ 1–703. Deferred adjudication

A. Prior to the filing of a petition, either the CFSA or the Prosecutor with

the consent of the CFSA may divert any children’s case from the court process

through use of a deferred adjudication, except a case subject to prosecution as a

major crime or subject to Title 6, § 1–706.

B. A deferred adjudication shall be made by entering into a contract with

the child’s parents, guardian, or other custodian whereby the parent, guardian

or other custodian agrees to undergo specified treatment for the condition

noticed, including an agreement to do or refrain from doing certain acts and

the CFSA or Prosecutor on behalf of the Nation agrees not to file a petition in

the case so long as the parent, guardian, or other custodian comply with the

contract.

Each such contract shall contain the following:

1. The specific facts or allegations, including dates, which gave rise to the

condition addressed by the contract.

2. The specific treatment programs the parents, guardian, or custodian

agree to successfully complete and their duration.

3. The specific facts which the parents, guardian, or custodian agree to do

or to refrain from doing.

4. The specific treatment or other social services to be offered by the Nation

or the Bureau of Indian Affairs and accepted by the family.

A fixed, limited time for the contract to run not exceeding one (1) year.

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Title 6, § 1–703

CHILDREN

6. That the Prosecutor will not file a petition on the subject of the contract

for the facts or allegations stated if the parents, guardian, or custodian comply

with the contract terms for the full term of the contract.

That each party has received a copy of the contract.

D. No diversion contract may place physical custody in any person or

agency other than the parents, guardian, or other legal custodian unless it bears

the approval in writing of a Judge of the District Court.

[NCA 01–126, § 403, approved Aug. 9, 2001.]

§ 1–704. Deferred adjudication admissible

The deferred adjudication contract and any statements or admissions of the

parties made in negotiating or fulfilling the terms of the contract are admissible

as evidence. The parents, guardian, or custodian may prove the contract and

show their compliance with the terms thereof as a defense to a petition filed

concerning the matter of the contract. Upon a showing of compliance with the

terms of the contract the Court shall dismiss the petition unless it determines by

evidence beyond a reasonable doubt that the child is in imminent danger of

severe physical or mental harm.

[NCA 01–126, § 404, approved Aug. 9, 2001.]

§ 1–705. Court diversion by stipulation

A. After filing of a petition but prior to the entry of an order sustaining the

petition, the Prosecutor with the consent of the CFSA, may divert any children’s

case, except a case subject to prosecution as a major crime or subject to Title 6,

§ 1–706, from the adjudicatory process with the consent of the respondents and

the Court by obtaining consent decree if:

1. The Court has informed the child and his parents, guardian, or legal

custodian, and the Court believes they understands said information regarding

their rights to:

a. Deny the allegations of the petition and require the Prosecutor to prove

each allegation by admissible evidence;

b. Confront and cross-examine the witnesses against them and to call

witnesses on their own behalf;

Refuse to testify against themselves or each other in delinquency cases;

d. A trial by a jury of six (6) persons at the adjudicatory stage, where a jury

trial is available;

e. Be represented by counsel at their own expense at each stage of the

proceedings, and, to the extent counsel is available at no fee, to have counsel

appointed for them if they cannot afford private counsel.

2. Written consent to the stipulation is obtained from the parents, guardian,

or legal custodian and the child if of sufficient age and understanding.

3. The CFSA has prepared a treatment plan for the family to be incorporated into the consent decree which distinctly states:

378

GENERAL PROVISIONS

Title 6, § 1–707

a. A statement that CFSA has consulted with the child’s parents in development of the plan or a brief summary of CFSA’s attempt to obtain such

consultation and explanation why such attempt failed.

b. The specific treatment programs the parents, guardian, or custodian, or

child agree to successfully complete and their duration.

c. The specific treatment or other social services to be offered by the CFSA

and accepted by the family.

d. The specific acts which the parents, guardian, or custodian or child agree

to do or to refrain from doing.

e. The person or agency to be vested with custody of the child if the child

cannot remain in its own home, the specific provisions of subparagraphs (b),

(c), and (d) of this paragraph which must be completed or accomplished for a

specific duration before the child is returned to its own home, and the period of

supervision of the child in its own home.

B. After all parties have consented, the Court shall review the treatment

plan and if the Court agrees that the plan is satisfactory, shall order all parties

by the consent decree to abide by the provisions of the treatment plan. The

consent decree shall be monitored and modified as in other dispositions,

provided, that if the family fails to comply with the treatment plan, the Court,

on motion of the Prosecutor shall proceed with the adjudication.

C. A consent decree shall remain in effect for not exceeding one (1) year,

provided, that upon notice of hearing the Court may extend the force of the

decree for an additional term of one (1) year with the consent of the parties.

The adjudication shall be continued during the term of the consent decree and

thereafter dismissed if the decree is complied with.

[NCA 01–126, § 405, approved Aug. 9, 2001.]

§ 1–706. Limitation on diversions

No child shall be handled by informal adjustment where the child referred to

the Court by any person has had any sustained petition for delinquency in the

preceding twelve (12) months or has been handled by informal adjustment for a

delinquent act in the preceding twelve (12) months.

[NCA 01–126, § 406, approved Aug. 9, 2001.]

§ 1–707. Filing petition; time limits when child already in custody; order

to remove child from home

A. Petition when child already in custody. When a child has been taken into

custody under any provision of this chapter before a petition has been filed, a

petition shall be filed and a summons issued within five (5) judicial days from

the date of such assumption of custody, or custody of the child shall be

relinquished to his parent, guardian or other legal custodian. Where a child has

been taken into custody and upon allegations of cruelty on the part of the

parents, guardian or other person having custodial care of the child, the fiveday limitation herein shall not cause the child to be relinquished to such parent,

guardian or other legal custodian. In all such cases, the Court shall determine

whether the petition was filed within a reasonable time, except that a petition

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Title 6, § 1–707

CHILDREN

shall be filed within thirty (30) days of the child being taken into custody. When

a child has been taken into custody as provided by this chapter and the Court

has ordered an inpatient mental health examination of the child pursuant to

this chapter, the Court shall determine whether the petition was filed within a

reasonable time.

B. Petition prior to removal of child. The Prosecutor shall file a petition

seeking adjudication for any alleged delinquent child, child in need of supervision, deprived child or child in need of treatment. The petition may seek

removal of the child from the home. No order of the Court providing for the

removal of an alleged or adjudicated deprived child from his home shall be

entered unless the Court finds that the continuation of the child in his home is

contrary to the welfare of the child. Said order shall include either a determination as to whether or not reasonable efforts have been made to prevent the need

for the removal of the child from his home and as appropriate, reasonable

efforts have been made to provide for the return of the child to his home or a

determination as to whether or not an absence of efforts to prevent the removal

of the child from his home is reasonable under the circumstances, if such

removal of the child from his home is due to an alleged emergency and is for

the purpose of providing for the safety of the child.

[NCA 01–126, § 407, approved Aug. 9, 2001.]

Cross References

Home study, timing when allegations of petition are denied, see Title 6, § 1–509.

Initiation of civil proceedings, see Title 27, § 2–101.

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–708. Petition heading

The Prosecutor shall sign and file all child welfare petitions alleging a child

to be delinquent, in-need-of-supervision, neglected, or abused. Such petitions

and all subsequent court documents in such proceedings shall contain a

heading and title in substantially the following form:

IN THE DISTRICT COURT OF THE MUSCOGEE (CREEK) NATION

OKMULGEE DISTRICT

In The Interest Of:

An Alleged

)

Child, )

Case No. JV-

[NCA 01–126, § 408, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

380

Title 6, § 1–710

GENERAL PROVISIONS

§ 1–709. Petition contents

A. The petition shall set forth plainly the facts which bring the child within

the Court’s jurisdiction. If the petition alleges that the child is delinquent, it

shall cite the law which the child is alleged to have violated. The petition shall

also state the name, age, and residence of the child and the names and

residences of his parents, guardian, or other legal custodian or of his nearest

known relative if no parent, guardian, or other legal custodian is known.

B. All petitions filed alleging the abuse or neglect of a child may include the

following statement: ‘‘Termination of the parent-child legal relationship is a

possible remedy available if this petition is sustained.’’ Unless such statement is

contained in the petition, no termination of parental rights can be obtained

unless, upon the occurrence of new facts after the filing of the petition an

amended petition be filed based upon the new facts and containing the above

required statement.

[NCA 01–126, § 409, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–710. Summons

Upon filing of a petition the Court Clerk shall issue a summons to the

respondents and the child as in other civil cases. The summons shall be in

substantially the following form:

IN THE DISTRICT COURT OF THE MUSCOGEE (CREEK) NATION

OKMULGEE DISTRICT

In The Interest Of:

An Alleged

)

Child, )

Case No. JV-

SUMMONS

THE PROSECUTOR OF THE MUSCOGEE (CREEK) NATION to:

,Respondents.

YOU ARE HEREBY NOTIFIED, that a petition has been filed in the District

Court alleging that the above named

is a (delinquent) (abused

or neglected) child (in-need-of-supervision) and that as the (parent) (guardian)

(legal custodian) of said child you have been named as the Respondent, all as

more fully set out in the attached petition.

YOU ARE THEREFORE ORDERED TO APPEAR at the Courtroom of the

Muscogee (Creek) Nation District Court at

, on the

day of

, 20

, at the hour of

o’clock .m. and to there remain subject to the

call of the Court until discharged that you may be advised of the allegations

contained in the petition and may answer that you admit or deny the allegations of the petition.

381

Title 6, § 1–710

CHILDREN

YOU ARE FURTHER ORDERED, if the above named child is in your

physical custody or subject to your control, to bring the child to Court with you.

You may seek the advice of an attorney on any matter relating to this action at

your own expense.

Court Clerk

[Seal]

(Return as in other civil cases)

[NCA 01–126, § 410, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–711. When summons unnecessary

A summons need not issue or be served upon any respondent who appears

voluntarily, or who waives service in writing before a notary public or Court

Clerk, or who has promised to appear at the hearing in writing upon the release

of a child from emergency custody or otherwise, but any such person shall be

entitled to a copy of the petition and summons upon request.

[NCA 01–126, § 411, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–712. Additional parties to be summoned

The Court on its own motion or on the motion of any party may join as a

respondent or require the appearance of any person it deems necessary to the

action and authorize the issuance of a summons directed to such person.

[NCA 01–126, § 412, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–713. Service of summons

A. Summons shall be served personally, pursuant to applicable rules of civil

procedure.

B. If the parties, guardian, or other legal custodian of the child required to

be summoned cannot be found within the jurisdiction of the District Court, the

fact of the child’s presence within the Court’s jurisdiction shall confer jurisdiction on the Court as to any absent parent, guardian, or legal custodian if due

notice has been given in the following manner:

382

Title 6, § 1–715

GENERAL PROVISIONS

1. When the residence of the person to be served outside the Court’s

jurisdiction is known, a copy of the summons and petition shall be sent by

certified mail with postage prepaid to such person at his place of residence with

a return receipt requested. Service of summons shall be deemed complete upon

return of the requested receipt.

2. When the person to be served has no residence within the Court’s

jurisdiction and his place of residence is not known or when he cannot be

found within the Court’s jurisdiction after due diligence, service may be by

publication.

[NCA 01–126, § 413, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–714. Failure to appear

A. Any person served with a summons who fails to appear without reasonable cause may be proceeded against for contempt of court and a bench

warrant may issue.

B. If after reasonable effort the summons cannot be served or if the welfare

of the child requires that he be brought immediately into the custody of the

Court, a bench warrant may be issued for the parents, guardian, or other legal

custodian or for the child, or a search warrant may issue for the child as

provided by law.

C. When a parent or other person who signed a written promise to appear

and bring the child to court, or who has waived or acknowledged service fails

to appear with the child on the date set by the Court, a bench warrant may be

issued for the parent or other person, the child, or both.

[NCA 01–126, § 414, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–715. Appointment of guardian ad litem

A. The Court may appoint a guardian ad litem to protect the interest of a

child in proceedings pursuant to this chapter when:

1. No parent, guardian, legal custodian, or relative of the child appears at

the first or any subsequent hearing in the case; or

2. The Court finds that there may be a conflict of interest between the child

and his parent, guardian, or other legal custodian; or

3. The Court finds that it is in the child’s interest and necessary for his

welfare, whether or not a parent, guardian, or other legal custodian is present.

B. The Court may appoint a guardian ad litem for any parent in proceedings pursuant to this chapter who has been determined to be mentally ill by a

383

Title 6, § 1–715

CHILDREN

Court of competent jurisdiction or is developmentally disabled; except that, if a

conservator has been appointed, the conservator may serve as the guardian ad

litem. If the conservator does not serve as guardian ad litem, he shall be

informed that a guardian ad litem has been appointed.

C. At the time any child first appears in Court, if it is determined that he has

no guardian of his person, the Court shall appoint a guardian of the person of

the child before proceeding with the matter.

D. In all proceedings brought for the protection of a child suffering from

abuse or nonaccidental injury, a guardian ad litem shall be appointed for said

child. Said guardian shall have the power to represent the child in the legal

proceedings.

E. All guardians ad litem shall, whenever practical, be required to personally visit the place of residence of the child.

[NCA 01–126, § 415, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–716. Notice of legal rights

A. Advice regarding legal rights. At his first appearance before the Court,

the child and his parents, guardian or other legal custodian shall be fully

advised by the Court of their legal rights, including:

Their right to a jury trial upon demand where available;

2. Their right to be represented by an attorney, at their own expense, at

every stage of the proceeding;

Their right to see, hear and cross-examine all witnesses against them;

4. Their right to call witnesses on their own behalf and to have court

process compel the attendance of witnesses for them; and

5. In juvenile delinquency proceedings, the right of the child not to be

compelled to testify against himself.

B. Court-appointed counsel. If the child or his parents, guardian, or other

legal custodian requests an attorney and is found to be without sufficient

financial means, counsel, to the extend funds are available or counsel is

available at no fee, shall be appointed by the Court in proceedings wherein the

Nation is a party, and termination of the parent-child legal relationship is stated

as a possible remedy in the summons. The Court may appoint counsel without

such request if it deems representation by counsel necessary to protect the

interest of the child or other parties.

C. No legal counsel; motion for new trial. If the child and his parents,

guardian or other legal custodian were not represented by legal counsel, the

Court shall inform them at the conclusion of the proceedings that they have the

right to file a motion for a new trial and that if such motion is denied, they have

384

Title 6, § 1–718

GENERAL PROVISIONS

the right to appeal, provided that lack of counsel alone shall not be grounds for

reversal.

[NCA 01–126, § 416, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–717. Adjudicatory hearing

A. At the adjudicatory hearing, which shall be conducted as provided in the

applicable rules of civil procedure, except that the applicable rules of criminal

procedure shall apply in delinquency cases, the Court shall consider whether

the allegations of the petition are supported by evidence beyond a reasonable

doubt in cases concerning delinquent children or children in need of supervision or by a preponderance of the evidence in cases concerning neglected or

dependent children; except that jurisdictional matters of the age and residence

of the child shall be deemed admitted by or on behalf of the child unless

specifically denied prior to the adjudicatory hearing.

B. When it appears that the evidence presented at the hearing discloses

issues not raised in the petition, the Court may proceed immediately to consider

the additional or different matters raised by the evidence if the parties consent.

C. In such event, the Court, on the motion of any interested party or on its

own motion, shall order the petition to be amended to conform to the evidence.

D. If the amendment results in a substantial departure from the original

allegations in the petition, the Court shall continue the hearing on the motion of

any interested party, or the Court may grant a continuance on its own motion if

it finds it to be in the best interests of the child or any other party to the

proceeding.

[NCA 01–126, § 417, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–718. Mentally ill and developmentally disabled children

A. If it appears from the evidence presented at an adjudicatory hearing or

otherwise that the child may be mentally ill or developmentally disabled, as

these terms are defined in this section, the Court shall order that the child be

examined by a physician, psychiatrist, or psychologist and may place the child

in a hospital or other suitable facility for the purpose of examination for a

period not to exceed thirty (30) days.

B. A suitable facility for the purpose of examination shall be a facility

designated by the Court for treatment and evaluation, but neither a Tribal, city

or county jail nor a detention facility shall be considered a suitable facility

under any circumstances.

385

Title 6, § 1–718

CHILDREN

C. If the report of the examination made pursuant to subsection A of this

section states that the child is mentally ill to the extent that hospitalization or

institutional confinement and treatment is required, the Court may order such

hospitalization, institutional confinement, or treatment prior to or after adjudication.

D. The Court may dismiss the original petition when a child who has been

ordered to receive treatment is no longer receiving treatment.

E. The Court shall set a time for resuming the hearing on the original

petition under the following circumstances:

1. The report of the examination made pursuant to subsection A of this

section states that the child is not mentally ill to the extent that hospitalization

or institutional confinement and treatment are required;

The child is found not to be mentally ill; or

3. The report of the examination made pursuant to subsection A of this

section states that the child is developmentally disabled but not mentally ill.

F. 1. ‘‘Developmental disability’’ means a disability attributable to mental

retardation, cerebral palsy, epilepsy, autism, or a neurological impairment,

which may have originated during the first eighteen (18) years of life which can

be expected to continue indefinitely, and which constitutes a substantial handicap.

2. ‘‘Mentally ill person’’ means a person who is of such mental condition

that he is in need of supervision, treatment, care, or restraint.

3. ‘‘Mentally retarded person’’ means a person whose intellectual functions

have been deficient since birth or whose intellectual development has been

arrested or impaired by disease or physical injury to such an extent that he

lacks sufficient control, judgment, and discretion to manage his property or

affairs or who, by reason of this deficiency and for his own welfare or the

welfare or safety of others, requires protection supervision. guidance, training,

control, or care.

[NCA 01–126, § 418, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–719. Dismissal of petition

When the Court finds that the allegations of the petition are not supported by

evidence beyond a reasonable doubt in cases concerning delinquent children or

children in need of supervision or by a preponderance of the evidence in cases

concerning deprived children or children in need of treatment, the Court shall

order the petition dismissed and the child discharged from any detention or

restriction previously ordered. His parents, guardian, or other legal custodian

shall also be discharged from any restriction other previous temporary order.

[NCA 01–126, § 419, approved Aug. 9, 2001.]

386

Title 6, § 1–721

GENERAL PROVISIONS

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–720. Sustaining petition

When the Court finds that the allegations of the petition are supported by

evidence beyond a reasonable doubt in cases concerning delinquent children or

children in need of supervision or by a preponderance of the evidence in cases

concerning deprived children or children in need of treatment, the Court shall

sustain the petition and make an order of adjudication setting forth whether the

child is delinquent, in need of supervision, deprived or in need of treatment and

making the child a ward of the Court. In cases concerning deprived children,

evidence that child abuse or nonaccidental injury has occurred shall constitute

prima facie evidence that such child is deprived and such evidence shall be

sufficient to support an adjudication under this section.

[NCA 01–126, § 420, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–721. Temporary orders

Upon sustaining a petition the Court shall make such dispositional orders as

may be necessary to protect the child prior to the dispositional hearing which

shall be held without undue delay.

[NCA 01–126, § 421, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

SUBCHAPTER 8.

DISPOSITION

Section

1–801. Dispositional hearing.

1–802. Social studies and reports.

1–803. Treatment plan.

1–804. Medical examination.

1–805. Hearing purpose.

1–806. Hearing informal.

1–807. Continuance.

1–808. Order of protection.

1–809. Child in need of treatment; disposition.

1–810. Deprived child; disposition.

1–811. Placement preferences.

1–812. Child in need of supervision; disposition.

1–813. Delinquent child; disposition.

1–814. Legal custody; guardianship.

387

Title 6, § 1–801

CHILDREN

Section

1–815. Probation for delinquents and children in need of supervision.

1–816. New hearing authorized.

1–817. Continuing jurisdiction.

1–818. Orders for support.

1–819. Review hearings.

1–820. Permanency hearing.

§ 1–801. Dispositional hearing

After making an order of adjudication finding the child to be a ward of the

Court, the Court shall hear evidence on the question of the proper disposition

best serving the interests of the child and the Muscogee (Creek) Nation at a

hearing scheduled for that purpose.

[NCA 01–126, § 501, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–802. Social studies and reports

A. The Court may order any agency within its jurisdiction or request any

other agency to prepare and submit to the Court after the adjudication and

prior to disposition a social study, home study, family or medical history or

other reports which may be helpful in determining proper treatment and

disposition for the family.

B. After adjudication the Court may order or request, as appropriate, any

agency to submit preadjudicatory social studies or reports helpful in determining proper treatment and disposition for the family.

C. Such reports shall be filed with the Court and a copy delivered to the

parties or their attorney at least five (5) days prior to the dispositional hearing.

[NCA 01–126, § 502, approved Aug. 9, 2001.]

§ 1–803. Treatment plan

A. In every case the Court shall order the CFSA to prepare a detailed

treatment plan for the treatment and disposition of the problems identified in

the adjudication.

B. The treatment plan shall be developed by CFSA after consultation with

the parents unless such consultation cannot be obtained and shall contain at a

minimum:

A brief social and family history;

A brief statement of the causes of the Court’s exercise of its jurisdiction;

3. A statement that CFSA has consulted with the child’s parents in development of the plan or a brief summary of CFSA’s attempt to obtain such

consultation and explanation why such attempt failed

4. The specific treatment programs the family should be required to complete, their duration, and what is expected to be accomplished;

388

Title 6, § 1–806

GENERAL PROVISIONS

5. The specific actions the parents, guardian, legal custodian or child should

be ordered to do or refrain from doing and the reasons therefore;

6. The specific treatment or other social services offered by the Nation or

other agency which the family should be required to accept; and

7. The person or agency to be vested with custody of the child if the child

cannot remain in its own home, and a detailed plan describing how and when

the child will be retained in its home under supervision and when court

supervision should cease.

C. The treatment plan shall be filed with the Court and a copy delivered to

the parties or their attorney at least five (5) days prior to the dispositional

hearing.

[NCA 01–126, § 503, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–804. Medical examination

The Court may have the child examined by a physician, psychiatrist, or

psychologist, and the Court may place the child in a hospital or other suitable

facility for this purpose.

[NCA 01–126, § 504, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–805. Hearing purpose

The purpose of the dispositional hearing is for the Court to determine the

treatment which should be ordered to attempt to correct the problems which

led to the adjudication, and to provide for the health, welfare, and safety of the

child during the treatment period or, if treatment cannot or does not correct

the problems after actual attempts have been made to do so, to provide for the

long term health, welfare, and safety of the child.

[NCA 01–126, § 505, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–806. Hearing informal

The dispositional hearing shall be informal and the general rules of procedure and evidence shall not apply so that all pertinent information may be

considered in determining treatment and disposition. However, when feasible,

the Court shall order the writer of any report or study to appear and answer

questions regarding that report if it be challenged by any party.

[NCA 01–126, § 506, approved Aug. 9, 2001.]

389

Title 6, § 1–806

CHILDREN

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–807. Continuance

A. The Court may continue the dispositional hearing, either on its own

motion or on the motion of any interested party, for a reasonable period to

receive reports or other evidence, but the Court shall continue the hearing for

good cause on the motion of any interested party in any case where the

termination of the parent-child legal relationship is a possible remedy.

B. If the hearing is continued, the Court shall make an appropriate order

for detention of the child or for his release in the custody of his parents,

guardian, or other responsible person or agency under such conditions of

supervision as the Court may impose during the continuance.

C. In scheduling investigations and hearings, the Court shall give priority to

proceedings concerning a child who is in detention or who has otherwise been

removed from his home before an order of disposition has been made.

[NCA 01–126, § 507, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–808. Order of protection

A. The Court may make an order of protection in assistance of, or as a

condition of, any decree of disposition authorized by this subchapter. The order

of protection may set forth reasonable conditions of behavior to be observed for

a specified period by the parent, guardian, or any other person who is party to

the proceeding.

The order of protection may require any such person:

To stay away from a child or his residence;

To permit a parent to visit a child at stated periods;

3. To abstain from offensive conduct against a child, his parent or parents,

guardian, or any other person to whom legal custody of a child has been given;

To give proper attention to the care of the home;

To cooperate in good faith with an agency:

Which has been given legal custody of a child;

Which is providing protective supervision of a child by court order; or

To which the child has been referred by the Court.

6. To refrain from acts of commission or omission that tend to make a home

an improper place for a child; or

To perform any legal obligation of support.

390

Title 6, § 1–809

GENERAL PROVISIONS

C. When such an order of protection is made applicable to a parent or

guardian, it may specifically require his active participation in the rehabilitation process and may impose specific requirements upon such parent or

guardian, subject to the penalty of contempt for failure to comply with such

order without good cause, as provided in subsection E of this section.

D. After notice and opportunity for hearing is given to a person subject to

an order of protection, the order may be terminated, modified, or extended for

a specified period of time if the Court finds that the best interests of the child

and the Nation will be served thereby.

E. A person failing to comply with an order of protection without good

cause may be found in contempt of court.

[NCA 01–126, § 508, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–809. Child in need of treatment; disposition

A. The CFSA may provide for the care of a child adjudicated to be a child in

need of treatment who is in the custody of the CFSA:

1. In the home of the child, the home of a relative of the child, a foster

home, a group home, a transitional living program, an independent living

program or in any other community based child care facility under the

jurisdiction or licensor of the State of Oklahoma or the CFSA appropriate for

the care of the child and shall provide for the outpatient care and treatment of

the child; or

2. The CFSA may place a child in need of treatment and found by a Court to

be eligible to receive inpatient care and treatment in a treatment center

operated by the Muscogee (Creek) Nation, another Tribe or the State of

Oklahoma, Indian Health Service or other public or private mental health

facility. The CFSA shall establish a system for the regular review by a qualified

mental health professional, at intervals of not more than sixty (60) days, of the

case of each child in need of treatment in the custody of the CFSA and

receiving inpatient care and treatment to determine whether or not continued

inpatient treatment is required and appropriate for the child. When such child

no longer requires inpatient care and treatment in a mental health treatment

facility, the CFSA shall place the child as provided in paragraph 1 of this

subsection.

B. In providing for the outpatient care and the treatment of children in its

custody who have been adjudicated in need of treatment, the Department of

Human Services shall utilize to the maximum extent possible and appropriate

the services available through state or Tribal guidance centers, substance abuse

programs and community-based private nonprofit agencies and organizations.

C. Nothing contained in this section shall be interpreted to require the

CFSA to place a child found by a Court to be eligible for inpatient mental

health treatment in a mental health facility when the CFSA determines that

391

Title 6, § 1–809

CHILDREN

such placement is inappropriate or unnecessary for the treatment needs of the

child.

[NCA 01–126, § 508–A, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–810. Deprived child; disposition

A. When a child has been adjudicated to be deprived the Court shall enter a

decree of disposition. When the decree does not terminate the parent-child legal

relationship pursuant to subchapter 9 of this chapter (Title 6, § 1–901 et seq.),

it shall include one or more of the following provisions which the Court finds

appropriate:

1. The Court may place the child in the legal custody of one or both parents

or the guardian, with or without protective supervision, under such conditions

as the Court may impose.

2. The Court may place the child in the legal custody of a relative or other

suitable person, with or without protective supervision, under such conditions

as the Court may impose, in accordance with applicable provisions of this

chapter.

3. The Court may place legal custody in the CFSA or a child placement

agency for placement in a family care home, or other child care facility in

accordance with applicable provisions of this chapter.

4. The Court may order that the child be examined or treated by a physician, surgeon, psychiatrist, or psychologist or that he receive other special care

and may place the child in a hospital or other suitable facility for such

purposes.

B. The Court may enter a decree terminating the parent-child legal relationship of one or both parents pursuant to subchapter 9 of this chapter (Title 6,

§ 1–901 et seq.), and disposition of the child shall be made in accordance with

subchapter 9 of this chapter.

[NCA 01–126, § 509, approved Aug. 9, 2001.]

Library References

Indians O134, 135, 640.

Westlaw Topic No. 209.

C.J.S. Indians §§ 150 to 179.

§ 1–811. Placement preferences

A. Preferences. In making a placement of or committing legal custody of a

child to some person, whether for foster care or adoption, the Court shall place

the child with extended family members, as defined in Title 6, § 1–103, in the

following descending order of preference:

1. The natural or adoptive parents;

2. A stepparent who is a member of the Muscogee (Creek) Nation;

392

GENERAL PROVISIONS

Title 6, § 1–811

A member of the child’s extended family;

4. A member of the same clan, band or Tribal town within Muscogee

(Creek) Nation;

6. A Muscogee (Creek) Nation alternative/foster care home approved or

specified by CFSA;

7. With approval of CFSA, a foster care home licensed or approved by

another Tribe;

8. A public or private institution for children approved by CFSA or operated

by an Indian organization which has programs suitable to meet the needs of an

Muscogee (Creek) Indian child; provided that a child attending a BIA, Muscogee (Creek) Nation or other Tribal school will not be eligible for reimbursement, except that weekend care in an alternative/foster care home is reimbursable.

B. Good cause not to follow preferences. The Court shall find good cause

not to strictly comply with the placement preferences set forth in subsection A

of this section in the following circumstances:

1. Where both parents are deceased, and at least one of the parents has

stated a placement preference in an affidavit filed of record with the District

Court Clerk or has stated a placement preference in a will admitted into

probate in the state courts, in the Nation’s Court, in the court of another Indian

Nation, or in a proceeding before an administrative law judge;

2. When the child is already in the custody of a stepparent who is not a

member of the Nation at the time of commencement of any child custody

proceeding, and the Court finds that the stepparent has been involved in the

day to day care of the child for a significant period of time and that the

continued custody of the child by the stepparent would be in the child’s best

interests;

3. When the child is under the age of fourteen (14) and has spent a

significant amount of time with a relative or stepparent within one (1) of the

placement preference categories set forth in subsection A of this section, has

stated a preference for placement with said relative, and the Court finds that

such a placement would be in the child’s best interests; and

4. When the child is fourteen years of age or older and states a preference

for a relative who fits within one of the placement preference categories set

forth in subsection A of this section, provided that the Court determines that the

placement pursuant to the wishes of the child is in the child’s best interests.

C. Parental preference and location of foster home. In foster care placements, the Court may consider the preference of the parents and the proximity

of the prospective foster home to the child’s home in applying the preferences

set forth in subsection A of this section, where appropriate.

D. Considerations regarding persons within placement categories. For each

possible placement, the Court shall consider the willingness, fitness, ability,

suitability, and availability of each person in a placement category before

considering the next lower level of placement preference.

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Title 6, § 1–811

CHILDREN

E. Placement with agency which must follow placement preferences. The

This text is long and has been trimmed here. Open the source document for the complete record.

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