# Oneida Business Committee (2022) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A0c8574d7cb39b4bc ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text 1 of 245 Oneida Nation Oneida Business Committee Legislative Operating Committee PO Box 365 • Oneida, WI 54155-0365 Oneida-nsn.gov ~ ONEIDA LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA Business Committee Conference Room - 2nd Floor Norbert Hill Center July 20, 2022 9:00 a.m. I. Call to Order and Approval of the Agenda II. Minutes to be Approved 1. July 6, 2022 LOC Meeting Minutes (pg. 2) III. Current Business 1. Children’s Code Amendments (pg. 4) 2. Oneida Nation Assistance Fund Law (pg. 169) IV. New Submissions 1. Probate Law (pg. 179) V. Additions VI. Administrative Updates 1. E-Poll Results: Adoption of an Emergency Amendment to the Election Law (pg. 202) VII. Executive Session VIII. Recess/Adjourn A good mind. A good heart. A strong fire. 2 of 245 Oneida Nation Oneida Business Committee Legislative Operating Committee PO Box 365 • Oneida, WI 54155-0365 Oneida-nsn.gov r'\ mooao ONEIDA LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center July 6, 2022 9:00 a.m. Present: Kirby Metoxen, Marie Summers, Daniel Guzman King Excused: David P. Jordan, Jennifer Webster Others Present: Clorissa N. Santiago, Grace Elliot, Carolyn Salutz, Brooke Doxtator, Lawrence Barton, Amy Spears (Microsoft Teams), Justin Nishimoto (Microsoft Teams), Joy Salzwedel (Microsoft Teams), Kristal Hill (Microsoft Teams), Rhiannon Metoxen (Microsoft Teams), Rae Skenandore (Microsoft Teams), Kaylynn Gresham (Microsoft Teams), Eric Boulanger (Microsoft Teams), Carrie Lindsey (Microsoft Teams), Hon. Robert Collins II (Microsoft Teams), Matthew Denny (Microsoft Teams), Michelle Myers (Microsoft Teams), I. Call to Order and Approval of the Agenda Kirby Metoxen called the July 6, 2022, Legislative Operating Committee meeting to order at 9:00 a.m. Motion by Marie Summers to adopt the agenda with three additions: Section V.1. Elder Assistance Program law; Section V.2. Oneida Nation Assistance Fund Application Submission Period and Disbursement Timeframe for 2022 Resolution; and Section V.3 Election Law Emergency Amendments; seconded by Daniel Guzman King. Motion carried unanimously. II. Minutes to be Approved 1. June 15, 2022 LOC Meeting Minutes Motion by Marie Summers to approve the June 15, 2022, LOC meeting minutes and forward to the Oneida Business Committee; seconded by Daniel Guzman King. Motion carried unanimously. III. Current Business 1. Healing to Wellness Court Law Motion by Daniel Guzman King to approve the adoption packet for the Healing to Wellness Court law and forward to the Oneida Business Committee for consideration; seconded by Marie Summers. Motion carried unanimously. 2. Children’s Code Amendments Motion by Marie Summers to accept the public comments and the public comment review A good mind. A good heart. A strong fire. Legislative Operating Committee Meeting Minutes of July 6, 2022 Page 1 of 2 ~ ONEIDA 3 of 245 memorandum and defer to a work meeting for further consideration; seconded by Daniel Guzman King. Motion carried unanimously. IV. New Submissions 1. Eviction and Termination Law Amendments Motion by Marie Summers to add the Eviction and Termination law amendments to the Active Files List with David P. Jordan – or Marie Summers if David P. Jordan declines as the sponsor; seconded by Daniel Guzman King. Motion carried unanimously. 2. Emergency Management Law Amendments Motion by Daniel Guzman King to add the Emergency Management law emergency amendments to the Active Files List with Marie Summers as the sponsor; seconded by Marie Summers. Motion carried unanimously. V. Additions 1. Elder Assistance Program Law Motion by Marie Summers to approve the adoption packet for the Elder Assistance Program law and forward to the Oneida Business Committee for consideration; seconded by Daniel Guzman King. Motion carried unanimously. Motion by Daniel Guzman King to approve the resolution, Elder Assistance Program Application Submission Period and Disbursement Timeframe for 2022, and corresponding statement of effect and forward to the Oneida Business Committee for consideration; seconded by Marie Summers. Motion carried unanimously. 2. Oneida Nation Assistance Fund Application Submission Period Timeframe for 2022 Resolution Motion by Marie Summers to approve the resolution, Oneida Nation Assistance Fund Application Submission Period and Disbursement Timeframe for 2022, with noted change and corresponding statement of effect and forward to the Oneida Business Committee for consideration; seconded by Daniel Guzman King. Motion carried unanimously. 3. Election Law Emergency Amendments Motion by Marie Summers to add the Election law emergency amendments to the Active Files List with Kirby Metoxen as the sponsor; seconded by Daniel Guzman King. Motion carried unanimously. VI. Administrative Items VII. Executive Session VIII. Adjourn Motion by Marie Summers to adjourn at 9:40 a.m.; seconded by Daniel Guzman King. Motion carried unanimously. Legislative Operating Committee Meeting Minutes of July 6, 2022 Page 2 of 2 4 of 245 Oneida Nation "' Oneida Business Committee Legislative Operating Committee =DODDOO PO Box 365 • Oneida, WI 54155-0365 ONEIDA Oneida-nsn.gov Legislative Operating Committee July 20, 2022 Children’s Code Amendments Submission Date: 10/7/20 LOC Sponsor: David P. Jordan Public Meeting: 6/15/22 Emergency Enacted: N/A Summary: This item was carried over from last term. On August 25, 2020, the Oneida Law Office and Indian Child Welfare Department requested that emergency amendments be made to the Children’s Code to address customary adoption. The departments were seeking that customary adoption be changed to a suspension of rights rather than a termination of rights in order to allow for the adopting family to be eligible for Adoption Assistance with the State. On August 28, 2020, the LOC considered this request and determined that it did not meet the standard for emergency amendments provided by the Legislative Procedures Act, but that the LOC would add this item to the AFL for amendments to be made via the normal legislative process. 10/7/20 LOC: Motion by Kirby Metoxen to add the Children’s Code Amendments to the Active Files List with David Jordan as the sponsor; seconded by Jennifer Webster. Motion carried unanimously. 10/13/20: Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers, Daniel Guzman King, Clorissa N. Santiago, Tina Jorgenson, Jennifer Berg-Hargrove, Heather Lee. Alebra Cornelius, Peggy Schneider, Rhiannon Metoxen, Kristal Hill. This work meeting was held over Microsoft Teams. On July 22, 2020, the OBC was asked to consider amending resolution BC-07-26-17-J to permanently adopt the policy set forth by the March 20, 2020, COVID-19 Core Decision Making Team’s “Suspension of Transfer of Cases in Resolution# BC-07-26-17-J, Adoption of the Children's Code and the Nation's Indian Child Welfare Act Policy” declaration. The OBC adopted a motion to accept the request as information and send to the LOC for processing. The purpose of this work meeting was to allow the ICW Department and Law Office an opportunity to provide the LOC with more information on why this change should be made on a permanent basis beyond the Public Health State of Emergency. The LOC decided to pursue this change, and directed the LRO Attorney to draft a resolution which amends the policy on the transfer of cases. 3/3/21 LOC: Motion by Jennifer Webster to deny the request for emergency amendments due to the fact that it does not meet the standard for emergency legislation provided by the Legislative Procedures Act which is that it is necessary for the immediate preservation of the public health, safety, and general welfare of the Reservation population, and move this item from a medium priority to a high priority with direction that this be worked on as expeditiously as possible; seconded by Daniel Guzman King. Motion carried unanimously. 4/12/21: Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers, Daniel Guzman King, Clorissa N. Santiago, Hon. Robert Collins, Kristina Denny, Patricia DeGrand, Rhiannon Metoxen. This work meeting was held over Microsoft Teams. The purpose of this work meeting was for the Family Court to provide a “Children’s Code 101” and then for the workgroup to begin reviewing the Children’s Code line-by-line and discussing potential amendments to the law. Page 1 of 3 A good mind. A good heart. A strong fire. 5 of 245 4/12/21: Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers, Daniel Guzman King, Clorissa N. Santiago, Jennifer Berg-Hargrove, Alebra Cornelius, Heather Lee, Michael Hoeft, Peggy Schneider, Lydia Witte, Kristal Hill, Rhiannon Metoxen. This work meeting was held over Microsoft Teams. The purpose of this work meeting was for the Indian Child Welfare (ICW) Department to provide a “Children’s Code 101” and then for the workgroup to begin reviewing the Children’s Code line-by-line and discussing potential amendments to the law. 4/26/21: Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers, Daniel Guzman King, Clorissa N. Santiago, Hon. Robert Collins, Hon. Marcus Zielinski, Kristina Denny, Patricia DeGrand, Rhiannon Metoxen, Kristal Hill. This work meeting was held over Microsoft Teams. The purpose of this work meeting was for the workgroup to continue reviewing the Children’s Code line-by-line and discussing potential amendments to the law. 6/4/21: Work Meeting. Present: Clorissa N. Santiago, Jennifer Berg-Hargrove, Alebra Cornelius, Heather Lee, Michael Hoeft, Peggy Schneider, Lydia Witte, Kristal Hill. This work meeting was held over Microsoft Teams. The purpose of this work meeting was to review and discuss potential amendments to the law. 2/16/22: Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman King, Marie Summers, Clorissa N. Santiago, Lydia Witte. This was a work meeting held through Microsoft Teams. The purpose of this work meeting was to allow Attorney Lydia Witte to introduce herself to the LOC and provide some background on the amendments the ICW Department is requesting. 4/12/22: Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Marie Summers, Clorissa N. Santiago, Carmen Vanlanen, Lydia Witte, Peggy Van Gheem, Jennifer Berg-Hargrove, Heather Lee, Alebra Metoxen, Michael Hoeft, Hon. Robert Collins II, Hon. Rodney Dequaine, Kristal Hill, Rhiannon Metoxen. This was a work meeting held through Microsoft Teams. The purpose of this work meeting was to review the initial draft of proposed amendments to the Children’s Code. 4/20/22 LOC: Motion by Marie Summers to approve the draft of the Children’s Code amendments and direct that a legislative analysis be developed; seconded by Jennifer Webster. Motion carried unanimously. 5/4/22 LOC: Motion by Jennifer Webster to approve the updated draft and the legislative analysis for Children’s Code amendments; seconded by Daniel Guzman King. Motion carried unanimously. 5/12/22: Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Marie Summers, Kirby Metoxen, Clorissa N. Santiago, Kristal Hill, Rhiannon Metoxen. This was a work meeting held through Microsoft Teams. The purpose of this work meeting was to review the public meeting notice for the Children’s Code amendments. 5/18/22 LOC: Motion by Jennifer Webster to approve the public meeting packet and forward the Children’s Code amendments to a public meeting to be held on June 15, 2022; seconded by Marie Summers. Motion carried unanimously. 6/15/22: Public Meeting Held. Present: Jennifer Webster, Marie Summers (Microsoft Teams), Clorissa N. Santiago, Carolyn Salutz, Grace Elliot, Brooke Doxtator, Jameson Wilson A good mind. A good heart. A strong fire. Page 2 of 3 ~ ONEIDA 6 of 245 (Microsoft Teams), Jeanette Ninham (Microsoft Teams), Michelle Myers (Microsoft Teams), Jennifer Berg-Hargrove (Microsoft Teams), Lydia Witte (Microsoft Teams), Hon. Robert Collins II, Kristal Hill (Microsoft Teams). The public meeting for the Children’s Code amendments was held in person in the Norbert Hill Center and on Microsoft Teams. No individuals provided public comment during the public meeting. 6/22/22: Public Comment Period Closed. One (1) submission of written comments were received during the public comment period. 7/6/22 LOC: Motion by Marie Summers to accept the public comments and the public comment review memorandum and defer to a work meeting for further consideration; seconded by Daniel Guzman King. Motion carried unanimously. 7/14/22: Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Clorissa N. Santiago, Kristal Hill, Grace Elliot, Carolyn Salutz. This was a work meeting held through Microsoft Teams. The purpose of this work meeting was to review and consider the public comments received during the public comment period. Next Steps:  Approve the updated public comment review memorandum, draft, and legislative analysis.  Approve the fiscal impact statement request memorandum and forward to the Finance Department directing that a fiscal impact statement be prepared and submitted to the LOC by August 17, 2022. A good mind. A good heart. A strong fire. Page 3 of 3 ~ ONEIDA 7 of 245 Oneida Nation =DODDOO PO Box 365 • Oneida, WI 54115-0365 ONEIDA Oneida-nsn.gov TO: FROM: DATE: RE: "' Oneida Business Committee Legislative Operating Committee Legislative Operating Committee (LOC) Clorissa N. Santiago, Legislative Reference Office, Senior Staff Attorney July 20, 2022 Children’s Code Amendments: Public Comment Review with LOC Consideration On June 15, 2022, a public meeting was held regarding the proposed amendments to the Children’s Code (“the Law”). The public comment period was then held open until June 22, 2022. The Legislative Operating Committee reviewed and considered the public comments received on July 14, 2022. Comment 1 – GAL Access to Information: 708.8. Guardian ad litem 708.8-3. Responsibilities. The guardian ad litem has none of the rights or duties of a general guardian. The guardian ad litem shall: (a) investigate and review all relevant information, records and documents, as well as interview the child, parent(s), social workers, and all other relevant persons to gather facts when appropriate; (b) consider the importance of the child’s culture, heritage and traditions; (c) consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child; (d) explain the role of the guardian ad litem and the court proceedings to the child in language and terms appropriate to the child’s age and maturity level; (e) provide a written or oral report to the Court regarding the best interests of the child, including conclusions and recommendations and the facts upon which they are based; (f) recommend evaluations, assessments, services and treatment of the child and the child’s family when appropriate; (g) inform the court of any concerns or possible issues regarding the child or the child’s family; (h) represent the best interests of the child; (i) perform other duties as directed by the Court; and (j) comply with all laws, policies and rules of the Nation governing the conduct of a guardian ad litem. Jessica Vandekamp (written): Shekoli, The recommendations I have to add to the Children’s Code Amendments are to be consistent with Title 7 Children, Elders & Family Chapter 705, Child Custody, Placement and Visitation. Specifically for the purposes to carry out duties described in 705.85 Guardian ad Litem Responsibilities without undue delay. Recommendation: Agencies (Child Support, ICW, Oneida Judiciary, GAL etc.) shall share information on family court cases that are serving in the best interest of children. Page 1 of 4 A good mind. A good heart. A strong fire. 8 of 245 Challenge: Currently sharing of information between agencies is not included in the law, therefore, as a Guardian ad Litem, ICW requires me to retrieve a signed authorization form before releasing information – a court order isn’t enough. I’m not able to get timely and important information from ICW workers or on CHIPS cases. The problem this presents is that a GAL has to make time and find the parent, meet with a parent to get a signature on a form to authorize consent to obtain information. Sometimes the parent is reluctant to sign, and/or their child that may not even be in their custody. Question: In many cases the same judge assigning a GAL to a case is the same judge doing the CHIPS hearing so why does it have to be so difficult to for one to obtain information on a common case? Solution: To save time, resources, money and frustration by an agency/entity (GAL), documentation regarding serving for the best interest of children must be shared for all parties to get a wholistic view of the situation. Response The commenter expresses concern over her experience working as a guardian ad litem (GAL) and the difficulty she faced in efficiently obtaining information from the various agencies of the Nation. Specifically, the commenter discussed an appointment as a GAL for a child in a case under the Child Custody, Placement, and Visitation law and difficulty obtaining information from the Indian Child Welfare Department for information pertaining to the same child in a related child welfare case. The commenter expresses the importance of a GAL being able to efficiently access all information regarding a child in order to come to a conclusion as to the best interests of a child. A GAL is a person appointed by the Court to appear at any peacemaking, mediation, or hearing who is tasked with representing the best interest of the person appointed for. [7 O.C. 708.3-1(x), 705.3-1(g)]. Under the Children’s Code, the GAL has the following responsibilities:  investigate and review all relevant information, records and documents, as well as interview the child, parent(s), social workers, and all other relevant persons to gather facts when appropriate;  consider the importance of the child’s culture, heritage and traditions;  consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child;  explain the role of the guardian ad litem and the court proceedings to the child in language and terms appropriate to the child’s age and maturity level;  provide a written or oral report to the Court regarding the best interests of the child, including conclusions and recommendations and the facts upon which they are based;  recommend evaluations, assessments, services and treatment of the child and the child’s family when appropriate;  inform the court of any concerns or possible issues regarding the child or the child’s family;  represent the best interests of the child; A good mind. A good heart. A strong fire. Page 2 of 4 ~ ONEIDA 9 of 245   perform other duties as directed by the Court; and comply with all laws, policies and rules of the Nation governing the conduct of a guardian ad litem. [7 O.C. 708.8-3]. Under the Child Custody, Placement, and Visitation law GAL has the following responsibilities:  be an advocate for the best interests of a child;  consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child;  investigate the issues and provide a written report to the Court; and  communicate to the Court the wishes of the child, unless the child asks the guardian ad litem to do otherwise. [7 O.C. 705.8-5]. Overall, an important responsibility of a GAL is to investigate and review all relevant information, records and documents. When the Court appoints a GAL, whether that be in a case under the Children’s Code or the Child Custody, Placement, and Visitation law, the Court’s order contains the following statement: The guardian ad litem shall be provided access to all records in possession of juvenile intake; the tribal, county or state department of social services; child welfare agencies; schools; or law enforcement agencies pertaining to the above captioned case, regardless of the originating source, including but not limited to, medical, mental health, psychological, counseling, drug or alcohol records from a non-federally assisted program as defined in 42 CFR Part 2, financial, educational, employment, probation, and law enforcement records. The inclusion of this statement in the Court order is to avoid unnecessary delay, especially when the GAL has to meet expedited timelines included under the Children’s Code. Requiring a GAL to seek a signed authorization form from the parent in order to access information from the Indian Child Welfare Department should not be necessary when there the order made by the Court already addresses the release of information to the GAL. In order to clarify this issue and avoid unnecessary delay in the future, it is recommended that the following revision be made to the Children’s Code: 708.14. Discovery and Records 708.14-1. Upon written request, the parties and their counsel shall have the right to inspect, copy or photograph social, psychiatric, psychological, medical, and school reports, and records concerning the child including reports of preliminary inquiries, predisposition studies and supervision records relating to the child which are in the possession of the Nation’s Child Welfare attorney or the Department that pertain to any case under this law. 708.14-2. The Department shall make available for inspection or disclosure the contents of any record kept, regardless of the originating source, to a guardian ad litem appointed in a Children’s Code or family law case when that access is granted by order of the Court. LOC Consideration A good mind. A good heart. A strong fire. Page 3 of 4 ~ ONEIDA 10 of 245 The Legislative Operating Committee determined that the Children’s Code should be amended to clarify the issue regarding the guardian ad litem’s efficient access to information when there is an order of the Court addressing such matter to avoid unnecessary delay in the future. The Legislative Operating Committee directed that the following revision be made to the Children’s Code: 708.14. Discovery and Records 708.14-1. Upon written request, the parties and their counsel shall have the right to inspect, copy or photograph social, psychiatric, psychological, medical, and school reports, and records concerning the child including reports of preliminary inquiries, predisposition studies and supervision records relating to the child which are in the possession of the Nation’s Child Welfare attorney or the Department that pertain to any case under this law. 708.14-2. The Department shall make available for inspection or disclosure the contents of any record kept, regardless of the originating source, to a guardian ad litem appointed in a Children’s Code or family law case when that access is granted by order of the Court. A good mind. A good heart. A strong fire. Page 4 of 4 ~ ONEIDA 11 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 Title 7. Children, Elders and Family - Chapter 708 Latiksa>sh&ha Laotilihw@=ke the children – their issues CHILDREN’S CODE 708.1. 708.2. 708.3. 708.4. 708.5. 708.6. 708.7. 708.8. 708.9. 708.10. 708.11. 708.12. 708.13. 708.14. 708.15. 708.16. 708.17. 708.18. 708.19. 708.20. 708.21. 708.22. 708.23. 708.24. 708.25. Purpose and Policy Adoption, Amendment, Repeal Definitions Scope Jurisdiction Nation’s Child Welfare Attorney Indian Child Welfare Department Duties and Responsibilities Guardian ad litem Advocate Cultural Wellness Facilitator and Healer Order of Placement Preferences Notice of Petition Hearings (General) Discovery and Records Taking a Child into Custody Emergency Custody Hearing Petition for a Child in Need of Protection or Services Consent Decree Plea Hearing for a Child in Need of Protection or Services Fact-finding Hearing for a Child in Need of Protection or Services Department’s Disposition Report for a Child in Need of Protection or Services Dispositional Hearing for a Child in Need of Protection or Services Permanency Plans Change in Placement Trial Reunification 708.26. 708.27. 708.28. 708.29. Revision of Dispositional Orders Extension of Dispositional Orders Continuation of Dispositional Orders Guardianship for Certain Children in Need of Protection or Services 708.30. Revisions of Guardianship Order 708.31. Termination of Guardianship 708.32. Suspension or Termination of Parental Rights 708.33. Voluntary Suspension or Termination of Parental Rights 708.34. Grounds for Involuntary Suspension or Termination of Parental Rights 708.35. Petition for Suspension or Termination of Parental Rights 708.36. Initial Hearing on the Suspension or Termination of Parental Rights Petition 708.37. Fact Finding Hearing for a Suspension or Termination of Parental Rights 708.38. Department’s Suspension or Termination of Parental Rights Report 708.39. Standards and Factors 708.40. Dispositional Hearings for Suspension or Termination of Parental Rights 708.41. Adoption 708.42. Adoption Criteria and Eligibility 708.43. Adoption Procedure 708.44. Non-Compliance with a Residual Rights Agreement 708.45. Peacemaking and Mediation 708.46. Appeals 708.47. Liability 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 708.1. Purpose and Policy 708.1-1. Purpose. The purpose of this law is to provide for the welfare, care, and protection of Oneida children through the preservation of the family unit, while recognizing that in some circumstances it may be in the child’s best interest to not be reunited with his or her family. Furthermore, this law strengthens family life by assisting parents in fulfilling their responsibilities as well as facilitating the return of Oneida children to the jurisdiction of the Nation and acknowledging the customs and traditions of the Nation when raising an Oneida child. 708.1-2. Policy. It is the policy of the Nation to ensure there is a standard process for conducting judicial proceedings and other procedures in which children and all other interested parties are provided fair hearings in addition to ensuring their legal rights are recognized and enforced, while protecting the public safety. 708.2. Adoption, Amendment, Repeal 708.2-1. This law was adopted by the Oneida Business Committee by resolution BC-07-26-17-J, and amended by resolution BC-__-__-__-__. 708.2-2. This law may be amended or repealed by the Oneida Business Committee and/or Oneida General Tribal Council pursuant to the procedures set out in the Legislative Procedures Act. 7 O.C. 708 – Page 1 12 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 708.2-3. Should a provision of this law or the application thereof to any person or circumstances be held as invalid, such invalidity shall not affect other provisions of this law which are considered to have legal force without the invalid portions. 708.2-4. In the event of a conflict between a provision of this law and a provision of another law, the provisions of this law shall control. Provided that, this law repeals the following: (a) Resolution # BC-09-25-81 Oneida Child Protective Board Ordinance; (b) Resolution # BC-10-07-81-A Appointing Members to the Oneida Child Protective Board; (c) Resolution # BC-05-24-84-C Definition of Extended Family Member; (d) Resolution # BC-01-14-15-A Amendment of Oneida Child Protective Board Ordinance; (e) Resolution # BC-05-13-15 Indian Child Welfare Act Policy; and (f) Resolution # BC-12 -10-03-A Oneida Child Protective Boards Stipends. 708.2-5. This law is adopted under authority of the Constitution of the Oneida Nation. 708.3. Definitions 708.3-1. This section shall govern the definitions of words and phrases used within this law. All words not defined herein shall be used in their ordinary and everyday sense. (a) “Abuse” means any of the following: (1) Physical injury inflicted on a child by other than accidental means; (2) Sexual assault; (3) Sexual exploitation of a child; (4) Prostitution or trafficking of a child; (5) Causing a child to view or listen to sexual activity or sexually explicit materials; (6) Exposing a child to the manufacture, sale, or use of controlled substances; and/or (7) Emotional damage for which the child’s parent, guardian, or legal custodian has neglected, refused, or been unable for reasons other than poverty to obtain the necessary treatment or take steps to address the issue. (b) “Advocate” means a person who is a non-attorney presented to the Court as the representative or advisor to a party. (c) “Alcohol and other drug abuse impairment” means a condition of a person which is exhibited by characteristics of habitual lack of self-control in the use of alcoholic beverages or controlled substances to the extent that the person’s health is substantially affected or endangered or the person’s social or economic functioning is substantially disrupted. (d) “Attorney” means a person trained and licensed to represent another person in Court, to prepare documents and to give advice or counsel on matters of law. (e) “Best interest of the child” means the interest of a child to: (1) Have a full, meaningful, and loving relationship with both parents and family as much as possible; (2) Be free from physical, sexual and emotional abuse; (3) Be raised in conditions that foster and encourage the happiness, security, safety, welfare, physical and mental health, and emotional development of the child; (4) Receive appropriate medical care; (5) Receive appropriate education; 7 O.C. 708 – Page 2 13 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 (6) Be raised in conditions which maximize the chances of the child becoming a contributing member of society; and (7) Be raised in an environment that is respectful of the child’s race(s), culture(s), and heritage(s). (f) “Business day” means Monday through Friday from 8:00 a.m. to 4:30 p.m., excluding holidays recognized by the Nation. (g) “Child” means a person who is less than eighteen (18) years of age. (h) “Clear and convincing evidence” means that a particular fact is substantially more likely than not to be true. (i) “Counsel” means an attorney or advocate presented to the Court as the representative or advisor to a party. (j) “Court” means the Oneida Nation Family Court, which is the branch of the Oneida Nation Judiciary that has the designated responsibility to oversee family matters. (k) “Court of competent jurisdiction” means a state or tribal court that has jurisdiction and authority to do a certain act or hear a certain dispute. (l) “Department” means the Oneida Nation Indian Child Welfare Department. (m) “Disposition” means the Court’s final ruling or decision on a case or legal issue. (n) “Dispositional hearing” means a hearing for the Court to make its final determination of a case or issue. (o) “Emotional damage” means harm to a child’s psychological or intellectual functioning evidenced by one (1) or more of the following characteristics exhibited to a severe degree: (1) anxiety; (2) depression; (3) withdrawal; (4) outward aggressive behavior; and/or (5) a substantial and observable change in behavior, emotional response, or cognition that is not within the normal range for the child’s age and stage of development. (p) “Expert” means a person with special training, experience, or expertise in a field beyond the knowledge of an ordinary person. (q) “Extended family” means a person who has reached the age of eighteen (18) and who is the child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first, second, third or fourth cousin, or stepparent. (r) “Fact-finding hearing" means a hearing for the Court to determine if the allegations in a petition under this law are proved by clear and convincing evidence. (s) “Fictive kin” means any person or persons who, to the biological parents of the child at issue, have an emotional tie to that parent wherein they are like family. (t) “Foster home” means any home which is licensed by the Department or applicable licensing agency and maintained by any individual(s) suitable for placement of children when taken into custody or pending court matters. (u) “Good cause” means adequate or substantial grounds or reason to take a certain action, or to fail to take an action. (v) “Group home” means any facility operated by a person required to be licensed by the Department and/or applicable licensing agency for the care and maintenance of five (5) to eight (8) children. 7 O.C. 708 – Page 3 14 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 (w) “Guardian” means any person, agency or department appointed by the Court to care for and manage the child in a particular case before the Court. A guardian has the right to make major decisions affecting a child including education, religious and cultural upbringing, the right to consent to marriage, to enlistment in the armed forces, to major surgery and medical treatment and to adoption, or make recommendations as to adoption. (x) “Guardian ad litem” means a person appointed by the Court to appear at any peacemaking, mediation, or hearing and tasked with representing the best interest of the person appointed for. (y) “Holiday” means any holiday recognized by the Nation as identified in the Nation’s laws, rules and policies governing employment. (z) “Imminent danger” means a risk of harm or injury that will occur immediately. (aa) “Indian Child Welfare Worker” means a person employed by the Nation in the Indian Child Welfare Department tasked with the responsibility to carry out the duties, objectives and provisions of this law. (bb) “Informal disposition” means a written agreement with all the parties describing the conditions and obligations that must be met to ensure the child is protected and to alleviate the condition that led to the referral to the Department. An informal disposition is utilized by the Department when the Department determines that the interest of the child does not require a formal Court intervention to provide protection and services to the child. (cc) “Legal custodian” means any person other than a parent or guardian to whom legal custody of a child has been granted by court order and has the rights and responsibilities for the following: (1) To have physical custody of the child as determined by the Court, if physical custody is not with the person having legal custody; (2) To protect, educate and discipline the child so long as it is in the child’s best interest; and (3) To provide the child with adequate food, shelter, education, ordinary medical care and other basic needs, according to court order. In an emergency situation, a custodian shall have the authority to consent to surgery as well as any other emergency medical care needs. (dd) “Mediation” means a method of dispute resolution that involves a neutral third party who tries to help disputing parties reach an agreement. (ee) “Nation” means the Oneida Nation. (ff) “Neglect” means failure, refusal, or inability on the part of a caregiver, for reasons other than poverty, to provide necessary care, food, clothing, medical or dental care, or shelter so as to seriously endanger the physical health of the child. (gg) “Parent” means the biological or adoptive parent of a child. (hh) “Parties” means the parent(s), guardian(s), and legal custodian(s) of the child who is the subject of the proceedings; the Department, in cases where they are the petitioner; a guardian ad litem, if one has been appointed by the Court; and anyone else permitted to file a petition under this law. (ii) “Peacemaking” means a method of dispute resolution that is based on traditional methods of resolving disputes and addresses the needs of rebuilding relationships between people. 7 O.C. 708 – Page 4 15 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 (jj) “Permanency Plan” means a plan designed to ensure that a child is reunified with his or her family whenever appropriate, or that the child quickly attains a placement or home providing long-term stability. (kk) “Physical injury” includes, but is not limited to, any of the following: (1) lacerations; (2) fractured bones; (3) burns; (4) internal injuries; (5) severe or frequent bruising; (6) bodily injury which creates a substantial risk of death; (7) bodily injury which causes serious permanent disfigurement; (8) bodily injury which causes a permanent or protracted loss or impairment of the function of any bodily member or organ; or (9) any other serious bodily injury. (ll) “Plea hearing” means a hearing to determine whether any party wishes to contest a petition filed under this law. (mm) “Probable cause” means there are sufficient facts and circumstances that would lead a reasonable person to believe that something is true. (nn) “Protective plan” means an immediate short-term action that protects a child from present danger threats in order to allow for completion of the initial assessment, investigation and, if needed, the implementation of a safety plan. (oo) “Reasonable effort” means an earnest and conscientious effort to take good faith steps to provide the services ordered by the Court which takes into consideration the characteristics of the parent or child, the level of cooperation of the parent and other relevant circumstances of the case. (pp) “Relative” means any person connected with a child by blood, marriage or adoption. (qq) “Reservation” means all the land within the exterior boundaries of the Reservation of the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida, 7 Stat. 566, and any lands added thereto pursuant to federal law. (rr) “Shelter care facility” means a non-secure place of temporary care and physical custody for children, licensed by the Department and/or applicable licensing agency. (ss) “Social history” means the social, economic, cultural and familial aspects of a person and how those aspects affect the person’s functioning and situation in life. (tt) “Special treatment or care” means professional services which need to be provided to a child or family to protect the well-being of the child, prevent out-of-home placement, or meet the needs of the child. (uu) “Stepparent” means the spouse or ex-spouse of a child’s parent who is not a biological parent of the child. (vv) “Stipulation” means a formal legal acknowledgement and agreement made between opposing parties prior to a pending hearing or trial. (ww) “Substantial parental relationship" means the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of a child. (xx) “Service plan” means a plan or set of conditions ordered by the Court identifying concerns and behaviors of a parent, guardian or legal custodian that resulted in a child to be in need of protection or services, and the treatment services, goals and objectives to address and remedy the concerns and behaviors of the parent, guardian or legal custodian. 7 O.C. 708 – Page 5 16 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 (yy) “Warrant” means an order issued by a court commanding a law enforcement officer to perform some act incident to the administration of justice. 708.4. Scope 708.4-1. This law shall apply to all child welfare cases and legal proceedings in which the Nation has jurisdiction. Nothing in this law is meant to restrict or limit another court of competent jurisdiction from hearing a matter involving an Indian child. 708.5. Jurisdiction 708.5-1. Personal Jurisdiction. The Court shall have personal jurisdiction over the following individuals: (a) Jurisdiction over an Oneida Child. The Court shall have personal jurisdiction over any child who is present or resides within the boundaries of Brown and Outagamie County and is enrolled or eligible for enrollment in the Nation. (b) Jurisdiction over a Non-Oneida Child. The Court shall have personal jurisdiction over any child not enrolled or eligible for enrollment in the Nation who is present or resides within the boundaries of the Reservation and is a sibling of a child that is enrolled or eligible for enrollment in the Nation if the child’s parent(s), guardian or legal custodian consents to the jurisdiction of the Court. Consent to the jurisdiction of the Court can be given by any of the following: (1) The parent(s), guardian or legal custodian knowingly and voluntarily provides the Court with written consent to the jurisdiction of the Court; or (2) The Court establishes on the record that the parent(s), guardian or legal custodian knowingly and voluntarily provides the Court with verbal consent to the jurisdiction of the Court. 708.5-2. Jurisdiction over Children Alleged to be in Need of Protection or Services. The Court shall have jurisdiction over a child alleged to be in need of protection or services if personal jurisdiction has been established and the child: (a) is without a parent or guardian; (b) has been abandoned; (c) has a parent that relinquished custody of the child pursuant to the Nation’s laws or state law and has no other parent available to provide necessary care; (d) has been the victim of abuse, including injury that is self-inflicted or inflicted by another; (e) is at substantial risk of becoming the victim of abuse, including injury that is selfinflicted or inflicted by another, based on reliable and credible information that another child in the home has been the victim of such abuse; (f) has a parent, guardian, or legal custodian who signs the petition requesting jurisdiction under this subsection and is unable or needs assistance to care for or provide necessary special treatment or care for the child, and the child has no other parent available to provide necessary care; (g) has a guardian or legal custodian who is unable or needs assistance to care for or provide necessary special treatment or care for the child, but is unwilling or unable to sign the petition requesting jurisdiction under this subsection; (h) has been placed for care or adoption in violation of the Nation’s laws or state law; 7 O.C. 708 – Page 6 17 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 (i) is receiving inadequate care during the period of time a parent is missing, incarcerated, hospitalized or institutionalized; (j) is at least twelve (12) years of age, signs the petition requesting jurisdiction under this subsection and is in need of special treatment or care which the parent, guardian or legal custodian is unwilling, neglecting, unable or needs assistance to provide; (k) has a parent, guardian or legal custodian who neglects, refuses or is unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child; (l) has a parent, guardian or legal custodian who is at substantial risk of neglecting, refusing or being unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to endanger seriously the physical health of the child, based on reliable and credible information that the child's parent, guardian or legal custodian has neglected, refused or been unable for reasons other than poverty to provide necessary care, food, clothing, medical or dental care or shelter so as to endanger seriously the physical health of another child in the home; (m) is suffering emotional damage for which the parent, guardian or legal custodian has neglected, refused or been unable and is neglecting, refusing or unable, for reasons other than poverty, to obtain necessary treatment or to take necessary steps to improve the symptoms; (n) is suffering from an alcohol and other drug abuse impairment, exhibited to a severe degree, for which the parent, guardian or legal custodian is neglecting, refusing or unable to provide treatment; or (o) is non-compliant with the Nation’s or State’s immunization laws. 708.5-3. Jurisdiction over other Matters Relating to Children. If jurisdiction has been established under section 708.5-1 and all requirements of this law have been met the Court may: (a) terminate or suspend parental rights to a child; (b) appoint, revise, and/or remove a guardian; and (c) hold adoption proceedings. 708.5-4. Transfer of Cases from other Courts. If personal jurisdiction has been established the Court has jurisdiction over any action transferred to the Court from any court of competent jurisdiction. (a) While a case is being transferred to the Court from another court, any time limits established by this law shall be tolled until the next hearing on the matter before the Court. 708.5-5. Transfer of Cases to other Courts. The Court may transfer a case under this law to a court of competent jurisdiction where the other court has a significant interest in the child and the transfer would be in the best interest of the child. 708.5-6. Any orders made by the Court under this law, or any orders made by a court of competent jurisdiction regarding child welfare matters, shall supersede any other order made by this Court or a court of competent jurisdiction regarding custody or placement of a child until the Children’s Code or other child welfare orders are dismissed. 708.6. Nation’s Child Welfare Attorney 708.6-1. A Child Welfare attorney shall represent the Nation in all proceedings under this law. The Child Welfare attorney shall be one of the following: (a) An attorney from the Oneida Law Office; (b) An attorney contracted by the Oneida Law Office; or 7 O.C. 708 – Page 7 18 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 (c) An attorney contracted by the Department. 708.7. Indian Child Welfare Department Duties and Responsibilities 708.7-1. Indian Child Welfare Worker. The Indian Child Welfare Worker shall carry out the duties and responsibilities set forth in this law which include, but are not limited to the following: (a) Receive, examine, and investigate complaints and allegations that a child is in need of protection or services for the purpose of determining the appropriate response under this law, which may include notifying law enforcement; (b) Receive referral information, conduct intake inquiries, and determine whether to initiate child welfare proceedings; (c) Determine whether a child should be held pursuant to the emergency provisions of this law; (d) Make appropriate referrals of cases to other agencies when appropriate, and share information with other agencies if their assistance appears to be needed or desirable; (e) Maintain records; (f) Enter into informal dispositions or protective plans with families; (g) Refer counseling or any other functions or services to the child and/or family as designated by the Court; (h) Identify and develop resources within the community that may be utilized by the Department and Court; (i) Make reasonable efforts to obtain necessary services for the child and family and investigate and develop resources for the child and family to utilize; (j) Accept legal custody of children when ordered by the Court; (k) Make reports and recommendations to the Court; (l) Make recommendations to the Nation’s Child Welfare attorney; (m) Request transfer from state court to the Nation’s court when appropriate; (n) Perform any other functions ordered by the Court within the limitations of the law; (o) Develop appropriate plans and conduct reviews; (p) Negotiate agreements for services, record sharing, referral, and funding for child family service records within the Department; (q) Provide measures and procedures for preserving the confidential nature of child and family service records within the Department; (r) Participate in continuing training, conferences and workshops pertinent to child welfare issues; (s) Explain the court proceedings to the child in language and terms appropriate to the child’s age and maturity level when a guardian ad litem is not appointed for a child; and (t) Maintain a knowledge and understanding of all relevant laws and regulations. 708.7-2. Department. In performing the duties set forth in this law, the Department shall: (a) Identify and refer parties to resources in the community calculated to resolve the problems presented in petitions filed in Court, such as the various psychiatric, psychological, therapeutic, counseling, and other social services available within and outside the Nation when necessary; (b) Identify and refer parties to resources in the community designed to enhance the child’s potential as a member of the Nation; (c) Investigate, inspect, and license foster homes, and monitor and supervise foster homes and children in foster care; 7 O.C. 708 – Page 8 19 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 (d) Adhere to the placement preference order stated in section 708.11; (e) Enter into memorandums of understanding or agreement with the Oneida Trust Enrollment Committee or Department, Oneida Police Department, Oneida Nation Child Support Agency and any other appropriate department in order to carry out the provisions of this law; and (f) Share information with other social service agencies, law enforcement agencies, and other entities of the Nation as it pertains to children under the jurisdiction of this law. 708.8. Guardian ad litem 708.8-1. Appointment. The appointment of a guardian ad litem shall be as follows: (a) The Court may appoint a guardian ad litem for any child who is the subject of a child in need of protection or services proceeding; (b) The Court shall appoint a guardian ad litem for any child who is the subject of a proceeding to terminate or suspend parental rights, whether voluntary or involuntary, for a child who is the subject of a contested adoption proceeding, and for a child who is the subject of a contested guardianship proceeding; (c) The Court shall appoint a guardian ad litem for a minor parent petitioning for the voluntary termination of their parental rights; and (d) A guardian ad litem may be appointed for any other circumstance the Court deems necessary. 708.8-2. Qualifications. (a) A guardian ad litem shall be an adult who: (1) is at least twenty one (21) years of age; (2) is currently certified as a guardian ad litem and in good standing; (3) has never been convicted of a felony unless the person received a pardon or forgiveness; and (4) has never been convicted of any crime against a child. (b) No person shall be appointed guardian ad litem in that proceeding who: (1) has a personal interest in the outcome of the case, a party to the proceeding, or any other interest that has the potential to corrupt a person’s motivation or decision making, because of an actual or potential divergence between the person’s self-interests, and the best interests of the case; (2) appears as counsel or an advocate in the proceeding on behalf of any party; or (3) is related to a party of the proceeding, the Judge for the proceeding, or an appointing Judge by blood, marriage, adoption or related by a social tie that could be reasonably interpreted as a conflict of interest. (c) A guardian ad litem may be recognized as certified by the Court if he or she: (1) has completed guardian ad litem training provided by the Court, another Indian tribe, or a state; or (2) is recognized as a certified guardian ad litem by another jurisdiction. 708.8-3. Responsibilities. The guardian ad litem has none of the rights or duties of a general guardian. The guardian ad litem shall: (a) investigate and review all relevant information, records and documents, as well as interview the child, parent(s), social workers, and all other relevant persons to gather facts when appropriate; (b) consider the importance of the child’s culture, heritage and traditions; 7 O.C. 708 – Page 9 20 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 (c) consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child; (d) explain the role of the guardian ad litem and the court proceedings to the child in language and terms appropriate to the child’s age and maturity level; (e) provide a written or oral report to the Court regarding the best interests of the child, including conclusions and recommendations and the facts upon which they are based; (f) recommend evaluations, assessments, services and treatment of the child and the child’s family when appropriate; (g) inform the court of any concerns or possible issues regarding the child or the child’s family; (h) represent the best interests of the child; (i) perform other duties as directed by the Court; and (j) comply with all laws, policies and rules of the Nation governing the conduct of a guardian ad litem. 708.8-4. Compensation. The guardian ad litem shall be compensated at a rate that the Court determines is reasonable. The Court shall compensate the guardian ad litem for his or her fees. The parties shall reimburse the Court for the guardian ad litem fees. The Court may apportion the amount of reimbursement each party shall pay based on the ability to pay or assess the cost equally between the parties. The Court may determine an appropriate time frame for the reimbursement to occur. The Court may waive the guardian ad litem expense if the cost of the guardian ad litem will impose an immediate and substantial hardship on the parties. 708.9. Advocate 708.9-1. The parent, guardian and legal custodian of a child has the right to obtain an advocate to represent and advise him or her throughout any proceeding under this law at his or her own expense. 708.9-2. Qualifications. (a) An advocate shall be an adult who: (1) is at least twenty one (21) years of age; (2) is admitted to practice before the Oneida Judiciary; (2) has never been convicted of a felony unless the person received a pardon or forgiveness; and (3) has never been convicted of any crime against a child. 708.9-3. An advocate shall comply with all laws, rules and policies of the Nation governing advocates. 708.10 Cultural Wellness Facilitator and Healer 708.10-1. The Department may utilize a Cultural Wellness Facilitator and Healer, or similar position, throughout all child welfare proceedings. 708.10-2. The Cultural Wellness Facilitator and Healer may provide: (a) wellness sessions utilizing culturally based and appropriate healing methods; (b) training on Oneida culture, language and traditions; and (c) any other service that may be necessary. 7 O.C. 708 – Page 10 21 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 708.11. Order of Placement Preferences 708.11-1. The following order of placement preferences shall be followed when it is necessary to place a child outside of the home under this law: (a) A member of the child’s immediate or extended family; (b) A family clan member; (c) A member of the Nation; (d) Descendants of the Nation; (e) A member of another federally recognized tribe; (f) Fictive kin within the Nation community; (g) Fictive kin outside the Nation community; or (h) Any other person or persons not listed above. 708.11-2. The order of placement preferences listed in section 708.11-1. are prioritized from the most preference given to a child placed in a home in accordance with section 708.11-1(a) and the least amount of preference given to a child placed in a home in accordance with section 708.111(h). 708.11-3. In order to deviate from the placement preferences listed in section 708.11-1, the Court shall consider the best interest of the child when determining whether there is good cause to go outside the placement preference. (a) Good cause to go outside the placement preferences shall be determined based on any of the following: (1) When appropriate, the request from the child’s parent or the child, when the child is age twelve (12) or older; (2) Any extraordinary physical, mental or emotional health needs of the child requiring highly specialized treatment services as established by an expert; (3) The unavailability of a suitable placement after diligent efforts have been made to place the child in the placement preference listed in section 708.11-1; or (4) Any other reason deemed by the Court to be in the best interest of the child. (b) The party requesting to deviate from the placement preferences listed in 708.11-1 has the burden of establishing good cause. 708.12. Notice; General Terms 708.12-1. Service of documents and notices shall be as specified in this law. If a method of service is not specified in this law, then service shall be by first-class mail to the recently verified lastknown address of the party. If a party’s whereabouts are unknown and cannot be found after diligent effort, service shall be by publication as described in the Oneida Judiciary Rules of Civil Procedure. 708.12-2. The Court shall provide the parties with notice of all hearings at least seven (7) days prior to the hearing, with the purpose of providing the parties an opportunity to be heard. (a) Exception. In circumstances where a hearing is scheduled and it is not possible to provide notice at least seven (7) days prior to the hearing, the Court shall make an appropriate effort to notice all parties of the hearing. 7 O.C. 708 – Page 11 22 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 708.12-3. When the Department is required to perform personal service, the Indian Child Welfare Worker may deliver the document(s) directly to the party(s) if such service is appropriate and safe under the circumstances. In the alternative, personal service may be accomplished according to the Oneida Judiciary Rules of Civil Procedure. 708.12-4. In all proceedings under this law, the Department may withhold the placement provider’s identifying information from the child’s parent, guardian, or legal custodian if there are reasonable grounds to believe that disclosure would result in imminent danger to the child or anyone else. A parent, guardian, or legal custodian may request judicial review of the decision to withhold the identifying information. 708.13. Hearings (General) 708.13-1. If the Court finds that it is in the best interest of the child, the Court may exclude the child from participating in a hearing conducted in accordance with this law. 708.13-2. The Oneida Judiciary Rules of Evidence are not binding at emergency custody hearings, dispositional hearings, or a hearing about changes in placement, revision of dispositional orders, extension of dispositional orders, or termination of guardianship orders. At those hearings, the Court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant, or unduly repetitious testimony. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The Court shall give effect to the rules of privilege recognized by laws of the Nation. The Court shall apply the basic principles of relevancy, materiality, and probative value to proof of all questions of fact. 708.13-3. If an alleged father appears at a hearing under this law, the Court may order the Department to refer the matter to the Oneida Nation Child Support Agency to adjudicate paternity. If the Court enters such an order, then the Department may sign documents required by the Oneida Nation Child Support Agency on behalf of the family for the limited purpose of initiating a paternity action. While paternity is being established, the Court shall enter an order finding good cause to suspend the time limits established under this law. 708.13-4. At any time, the Court or the Department may refer the matter to the Nation’s Child Support Agency. 708.14. Discovery and Records 708.14-1. Upon written request, the parties and their counsel shall have the right to inspect, copy or photograph social, psychiatric, psychological, medical, and school reports, and records concerning the child including reports of preliminary inquiries, predisposition studies and supervision records relating to the child which are in the possession of the Nation’s Child Welfare attorney or the Department that pertain to any case under this law. 708.14-2. The Department shall make available for inspection or disclosure the contents of any record kept, regardless of the originating source, to a guardian ad litem appointed in a Children’s Code or family law case when that access is granted by order of the Court.If a request for discovery is refused, the person may submit an application to the Court requesting an order granting discovery. Motions for discovery shall certify that a request for discovery has been made and refused. 708.14-3. If a request for discovery is refused, the person may submit an application to the Court requesting an order granting discovery. Motions for discovery shall certify that a request for discovery has been made and refused. 7 O.C. 708 – Page 12 23 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 708.14-4.708.14-3. If the discovery violates a privileged communication or a work product rule, the Court may deny, in whole or part, otherwise limit or set conditions on the discovery authorized. 708.14-45. The identity of the individual that initiated the investigation by contacting the Department, shall be redacted in all documents that are made available to the parties. 708.14-56. In addition to the discovery procedures permitted under this law, the discovery procedures permitted under the Oneida Judiciary Rules of Civil Procedure shall apply in all proceedings under this law. 708.14-67. The Department may make an ex parte request to the Court to conduct an in camera review to determine what information should and should not be released to the parties and their counsel. In making that determination, the Court shall balance what is necessary to a fair determination of the child welfare legal matter, including access to records, against the interest in protecting the child from the risk of harm. After the Court conducts the in camera review, the decision regarding the release of records shall be provided to the parties in writing. 708.15. Taking a Child into Custody 708.15-1. Grounds for Taking a Child into Custody. A child may be taken into custody without a Court order by an Indian Child Welfare Worker or law enforcement officer if there are reasonable grounds to believe: (a) A warrant for the child's apprehension has been issued by the Court or another court of competent jurisdiction to take the child into custody; (b) The child is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary; and/or (c) The child has violated the conditions of an order issued pursuant to this law. 708.15-2. The Court may enter an order directing that a child be taken into custody upon a showing satisfactory to the judge that the welfare of the child demands that the child be immediately removed from his or her present custody. 708.15-3. A person taking the child into custody, under this section, shall immediately attempt to notify the parent(s), guardian(s), and legal custodian(s) of the child by the most practical means. Attempts to satisfy notification shall continue until either the parent(s), guardian(s), and legal custodian(s) of the child is notified, or the child is delivered to an Indian Child Welfare Worker, whichever occurs first. If the child is delivered to the Indian Child Welfare Worker before the parent(s), guardian(s), and legal custodian(s) is notified, the Indian Child Welfare Worker, or another person at his or her direction, shall continue the attempt to notify until the parent(s), guardian(s), and legal custodian(s) of the child is notified. 708.15-4. Once the child is taken into custody and turned over to the care of the Department, the Department shall make every effort to release the child immediately to the child's parent(s), guardian(s), and legal custodian(s), so long as it is in the child’s best interest and the parent(s), guardian(s), and legal custodian(s) is willing to receive the child. 708.15-5. Probable Cause for Taking a Child into Custody. A child may be held in custody if the Indian Child Welfare Worker determines the child is within the jurisdiction of the Court and probable cause exists to believe any of the following if the child is not held in custody: (a) The child will cause injury to himself or herself or be subject to injury by others; (b) The child will be subject to injury by others, based on a determination that if another child in the home is not held that child will be subject to injury by others; (c) The parent, guardian or legal custodian of the child or other responsible adult is neglecting, refusing, unable or unavailable to provide adequate supervision and care, and 7 O.C. 708 – Page 13 24 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 that services to ensure the child's safety and well-being are not available or would be inadequate; (d) The child meets the criteria for probable cause for taking a child into custody specified in section 708.15-5(c), based on a determination that another child in the home meets any of the criteria; or (e) The child will run away or be taken away so as to be unavailable for proceedings of the Court. 708.15-6. Holding a Child in Custody. A child held in custody may be held in any of the following places as long as the places are in the child’s best interest and all people residing or regularly visiting the premises have cleared a background check: (a) The home of a relative, except that a child may not be held in the home of a relative that has been convicted of the first-degree intentional homicide or the second-degree intentional homicide of a parent of the child, or any crime against a child, and the conviction has not been pardoned, forgiven, reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the child. The person making the custody decision shall consider the wishes of the child in making that determination; (b) A licensed foster home; (c) A licensed group home; (d) A non-secure facility operated by a licensed child welfare agency; (e) A licensed private or public shelter care facility; (f) A hospital or other medical or mental health facility; or (g) The home of a person not a relative, if the placement does not exceed thirty (30) days, though the placement may be extended for up to an additional thirty (30) days by the Indian Child Welfare Worker, and if the person has not had a child care license refused, revoked, or suspended within the last two (2) years. 708.15-7. When holding a child in custody for emergency placement the use of the preferences for placement stated in section 708.11-1 are preferred, but not mandatory. If the preferences for placement are not followed, the Department shall try to transition that child into a home that fits the order of preferences for placement as quickly as deemed appropriate by the Department. 708.15-8. If a child is held in custody, the Indian Child Welfare Worker shall notify the child’s parent(s), guardian(s), and legal custodian(s) of the reasons for holding the child and of the child's whereabouts except when the Indian Child Welfare Worker believes that notice would present imminent danger to the child. If the parent, guardian, or legal custodian is not immediately available, the Indian Child Welfare Worker or another person designated by the worker shall provide notice as soon as possible. 708.15-9. The Indian Child Welfare Worker shall also notify the parent, guardian, and legal custodian of the following: (a) the date, time and place of the emergency custody hearing; (b) the nature and possible outcomes of the hearing; (c) the right to present and cross-examine witnesses; and (d) the right to retain counsel at his or her own expense. 708.15-10. When the child is age twelve (12) or older, the Indian Child Welfare Worker shall notify the child of the date, time, and place and the nature and possible outcomes of the emergency custody hearing. 7 O.C. 708 – Page 14 25 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 708.16. Emergency Custody Hearing 708.16-1. If a child who has been taken into custody under section 708.15-5 is not released, a hearing to determine whether the child shall continue to be held in custody under the criteria of probable cause for taking a child into custody under section 708.15-5(a)-(e) shall be conducted by the Court as soon as possible but no later than seventy-two (72) hours after the time the decision to hold the child was made, excluding Saturdays, Sundays, and holidays. By the time of the hearing, a petition for a child in need of protection or services under section 708.17 shall be filed unless the Department seeks and receives an extension pursuant to section 708.16-2. The child shall be released from custody if a hearing is not held within the specified timelines. 708.16-2. If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the Court for an additional seventy-two (72) hours from the time of the hearing, excluding Saturdays, Sundays, and holidays, only if, as a result of the facts brought forth at the hearing, the Court determines that probable cause exists to believe any of the following: (a) That additional time is required to determine whether the filing of a petition initiating proceedings under this law is necessary; (b) That the child is an imminent danger to himself or herself or to others; or (c) The parent, guardian, and legal custodian of the child or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care. 708.16-3. The Court may grant a one-time extension under section 708.16-2 for a petition. In the event a petition is not filed within the extension period, the Court shall order the child's immediate release from custody. For any parties not present at the hearing, the Department shall serve the petition on those parties by certified mail, return receipt requested. 708.16-4. Prior to the start of the hearing, the Court shall inform the parent, guardian, or legal custodian of the following: (a) allegations that have been made or may be made; (b) the nature and possible outcomes of the hearing and possible future hearings; (c) the right to present and cross-examine witnesses; and (d) the right to retain counsel at his or her own expense. 708.16-5. If present at the hearing, the Court may permit the parent to provide the names and other identifying information of three (3) relatives of the child or other individuals eighteen (18) years of age or older whose homes the parent wishes the Court to consider as placements for the child. If the parent does not provide this information at the hearing, the Department shall permit the parent to provide the information at a later date. 708.16-6. All orders to hold a child in custody shall be in writing. (a) All orders to hold a child in custody shall include all of the following: (1) A finding that continued placement of the child in his or her home would be contrary to the best interests of the child; (2) A finding that the Department and/or anyone else providing services to the child had reasonable grounds to remove the child from the home based on the child's best interest; (3) A finding that the Department has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child’s best interests are the paramount concerns; (4) The Department made reasonable efforts to make it possible for the child to return safely home; and 7 O.C. 708 – Page 15 26 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 (5) If the child has one (1) or more siblings, who have also been removed from the home, a finding as to whether the Department has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the Court determines that a joint placement would be contrary to the safety or wellbeing of the child or any of those siblings, in which case the Court shall order the Department make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the Court determines that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings. (b) An order to hold a child in custody may include the following: (1) an transfer of the legal custody of the child, including decisions about health care and education. 708.16-7. An order to hold a child in custody remains in effect until a dispositional order is granted, the petition is withdrawn or dismissed, or the order is modified or terminated by further order of the Court. 708.16-8. An order to hold a child in custody may be re-heard upon motion of any party if, in the Court’s discretion, good cause is found, whether or not counsel was present. 708.17. Petition for a Child in Need of Protection or Services 708.17-1. The Nation’s Child Welfare attorney or the Department shall initiate proceedings under this section by filing a petition with the Court, signed by a person who has knowledge of the facts alleged or is informed of them and believes them to be true. Upon filing with the Court, the Department shall provide a copy of the petition to the parties by personal service or, if personal service is not possible, by certified mail with return receipt requested. 708.17-2. The petition shall include the following: (a) The name, birth date, address, and tribal affiliation of the child; (b) The names, birth dates, addresses, and tribal affiliation of the child's parent, guardian, legal custodian or spouse, if any; or if no such person can be identified, the name and address of the nearest relative; (c) Whether the child is in custody, and, if so, the place where the child is being held and the date and time he or she was taken into custody unless there is reasonable cause to believe that such disclosure would result in imminent danger to the child or legal custodian; (d) A Uniform Child Custody Jurisdiction and Enforcement Act affidavit; (e) A plain and concise statement of facts upon which the allegations are based, including the dates, times, and location at which the alleged acts occurred. If the child is being held in custody outside his or her home, the statement shall include information showing that continued placement of the child in the home would be contrary to the welfare of the child and the efforts that were made to prevent the removal of the child, while assuring that the child’s health, welfare, and safety are the paramount concerns; and (f) Any other information as deemed necessary by the Court. 708.17-3. The petition shall state if any of the facts required for a petition are not known or cannot be ascertained by the petitioner. 708.17-4. A petition may be amended at any time at the discretion of the Court. Upon filing with the Court, the Department shall provide a copy of the amended petition to the parties by certified mail with return receipt requested. 7 O.C. 708 – Page 16 27 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 708.18. Consent Decree 708.18-1. Consent Decree. At any time after the filing of a petition pursuant to section 708.17 and before the entry of judgment, the Court may suspend the proceedings and place the child under supervision in the home or present placement of the child. The Court may establish terms and conditions applicable to the child and the child's parent, guardian or legal custodian. The order under this section shall be known as a consent decree and must be agreed to by the child who is twelve (12) years of age or older, the parent, guardian or legal custodian, and the person filing the petition. The consent decree shall be reduced to writing and given to the parties. 708.18-2. Requirements of a Consent Decree. If at the time the consent decree is entered into the child is placed outside the home and if the consent decree maintains the child in that placement, the consent decree shall include all of the following: (a) A finding that placement of the child in his or her home would be contrary to the welfare of the child; (b) A finding as to whether the Department has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety and best interests are the paramount concerns; (c) If a permanency plan has previously been prepared for the child, a finding as to whether the Department has made reasonable efforts to achieve the permanency goal of the child's permanency plan; and (d) If the child has one or more siblings who have also been removed from the home, the consent decree shall include a finding as to whether the Department has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the Court determines that the placement of the siblings together would be contrary to the safety, well-being and best interests of the child or any of those siblings, in which case the Court shall order the department to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the Court determines that such visitation or interaction would be contrary to the safety, well-being or best interests of the child or any of those siblings. 708.18-3. Time Limits of Consent Decree. A consent decree shall remain in effect up to six (6) months unless the child, parent, guardian, or legal custodian is discharged sooner by the Court. The time limits under this law shall be tolled during the pendency of the consent decree. 708.18-4. Extension of a Consent Decree. Upon the motion of the Court or the request of the child, parent, guardian, legal custodian, child's guardian ad litem, or the Department, the Court may, after giving notice to the parties to the consent decree, extend the decree for up to an additional six (6) months in the absence of objection to the extension by the parties to the initial consent decree. If the child, parent, guardian, legal custodian, or child's guardian ad litem objects to the extension, the Court shall schedule a hearing and make a determination on the issue of extension. 708.18-5. If, prior to discharge by the Court, or the expiration of the consent decree, the Court finds after conducting a hearing that the child, parent, guardian, or legal custodian has failed to fulfill the express terms and conditions of the consent decree, the hearing under which the child was placed on supervision may be continued to conclusion as if the consent decree had never been entered. 7 O.C. 708 – Page 17 28 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 708.19. Plea Hearing for a Child in Need of Protection or Services 708.19-1. A plea hearing shall take place on a date which allows reasonable time for the parties to prepare but is within forty-five (45) days after the filing of a petition, unless the Court enters an order finding good cause to go outside of the time limits. 708.19-2. If a petition is not contested, the Court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is within forty-five (45) days after the plea hearing, unless the Court enters an order finding good cause to go outside the time limits. If all the parties agree and the Department has submitted a court report pursuant to section 708.21, the Court may proceed immediately with the dispositional hearing. 708.19-3. If the petition is contested, the Court shall set a date for the fact-finding hearing which allows reasonable time for the parties to prepare but is within sixty (60) days after the plea hearing, unless the Court enters an order finding good cause to go outside the time limits. 708.19-4. Before accepting an admission or plea of no contest of the alleged facts in a petition, the Court shall: (a) Address the parties present and determine that the plea of no contest or admission is made voluntarily with understanding of the nature of the acts alleged in the petition and the potential outcomes; (b) Establish whether any promises or threats were made to elicit the plea of no contest or admission; and (c) Make inquiries that establish a factual basis for the plea of no contest or admission. 708.19-5. At the plea hearing the Department may request placement of the child outside of the child’s home in accordance with the placement preferences in section 708.11-1, if notice of the Department’s intent to seek out of home placement of the child was provided to the parties prior to the hearing in substantial compliance with section 708.15-9. In the request for placement of the child outside of the child’s home the Department shall present as evidence specific information as outlined in 708.16-6(a)(1)-(5). 708.19-6. If the Court orders the out of home placement of the child, the order shall be in writing and shall contain the information required by section 708.16-6(a)(1)-(5). 708.20. Fact finding Hearing for a Child in Need of Protection or Services 708.20-1. The fact-finding hearing is a hearing conducted by the Court to determine whether there is clear and convincing evidence to establish that the child is in need of protection or services. 708.20-2. The fact-finding hearing shall be conducted according to the Oneida Judiciary Rules of Civil Procedure except that the Court may exclude the child from the hearing. 708.20-3. At the close of the fact-finding hearing, the Court shall set a date for the dispositional hearing which allows a reasonable time for the parties to prepare but is no more than forty-five (45) days after the fact-finding hearing, unless the Court enters an order finding good cause to go outside the time limits. If all the parties agree and the Department has submitted court report pursuant to section 708.21, the Court may proceed immediately with the dispositional hearing. 708.21. Department’s Disposition Report for a Child in Need of Protection or Services 708.21-1. Before the dispositional hearing, the Department shall submit a written report to the Court, with a copy provided to the parties by first-class mail at least seven (7) days prior to the hearing, which shall contain all of the following: (a) The social history of the child and family; 7 O.C. 708 – Page 18 29 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 (b) A strategic plan for the care of and assistance to the child and family calculated to resolve the concerns presented in the petition; (c) A detailed explanation showing the necessity for the proposed plan of disposition and the benefits to the child and family under the proposed plan; and (d) If an out-of-home placement is being recommended, specific reasons for recommending that placement. 708.21-2. If the Department is recommending out-of-home placement, the written report shall include all of the following: (a) The location of the placement and where it fits within the placement preferences. (b) A recommendation as to whether the Court should establish a child support obligation for the parents; (c) Specific information showing that continued placement of the child in his or her home would be contrary to the best interests of the child and specific information showing that the Department has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's best interests are the paramount concerns; (d) If the child has one (1) or more siblings who have been removed from the home or for whom an out-of-home placement is recommended, specific information showing that Department has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the Department recommends that the child and his or her siblings not be placed together, in which case the report shall include specific information showing that placement of the children together would be contrary to the best interests of the child or any of those siblings; and (e) If a recommendation is made that the child and his or her siblings not be placed together specific information showing that the Department has made reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the Department recommends that such visitation or interaction not be provided, in which case the report shall include specific information showing that such visitation or interaction would be contrary to best interests of the child or any of those siblings; 708.22. Dispositional Hearing for a Child in Need of Protection or Services 708.22-1. At a dispositional hearing, any party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations. 708.22-2. During a dispositional hearing, if the Department is recommending placement of the child outside of the child’s home in accordance with the placement preferences in section 708.111, the Department shall present as evidence specific information showing all of the following: (a) That continued placement of the child in his or her home would be contrary to the best interests of the child; (b) That the Department has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's best interests are the paramount concerns; (c) If the child has one (1) or more siblings who have been removed from the home or for whom an out-of-home placement is recommended, that the Department has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the Department recommends that the child and his or her siblings not be placed together, in which case the Department shall present as evidence specific information showing that placement of the children together would be contrary to the best interests of the child or any of those siblings; and 7 O.C. 708 – Page 19 30 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 831 832 833 834 835 836 837 838 839 840 841 842 843 844 845 846 847 848 849 850 851 852 853 854 855 856 857 858 859 860 861 862 863 864 865 866 867 868 869 870 871 872 873 874 875 876 (d) If a recommendation is made that the child and his or her siblings not be placed together, that the Department has made reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the Department recommends that such visitation or interaction not be provided, in which case the Department shall present as evidence specific information showing that such visitation or interaction would be contrary to the best interests of the child or any of those siblings. 708.22-3. The Court’s dispositional order shall employ those means necessary to maintain and protect the best interests of the child which are the least restrictive of the rights of the parent and child and which assure the care, treatment or rehabilitation of the child and the family consistent with the protection of the public. When appropriate, and, in cases of child abuse or neglect when it is consistent with the best interest of the child in terms of physical safety and physical health, the family unit shall be preserved and there shall be a policy of transferring custody of a child from the parent only when there is no less drastic alternative. If there is no less drastic alternative for a child than transferring custody from the parent, the Court shall consider transferring custody pursuant to the preferences for placement set forth in section 708.11-1. 708.22-4. Dispositional Orders. The Court’s dispositional order shall be in writing and shall contain: (a) The service plan and specific services to be provided to the child and family, and if custody of the child is to be transferred to effect the service plan, the identity of the legal custodian; (b) If the child is placed outside the home, where the child will be placed. If the Court finds that disclosing identifying information related to placement of the child would result in imminent danger to the child or anyone else, the Court may order the name and address of whom the child is placed with withheld from the parent or guardian; (c) The date of the expiration of the court's order; (1) A dispositional order made before the child reaches eighteen (18) years of age that places or continues the placement of the child in his or her home shall terminate one (1) year after the date on which the order is granted unless the Court specifies a shorter period of time or the Court terminates the order sooner. (2) A dispositional order made before the child reaches eighteen (18) years of age that places or continues the placement of the child outside of the home shall terminate on the latest of the following dates, unless the Court specifies a shorter period or the Court terminates the order sooner: (A) The date on which the child attains eighteen (18) years of age; (B) The date that is one (1) year after the date on which the order is granted; and (C) The date on which the child is granted a high school or high school equivalency diploma or the date on which the child reaches nineteen (19) years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching nineteen (19) years of age. (d) If the child is placed outside the home, a finding that continued placement of the child in his or her home would be contrary to the welfare of the child and a finding as to whether the Department has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's best interests are the paramount concerns. The Court 7 O.C. 708 – Page 20 31 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 877 878 879 880 881 882 883 884 885 886 887 888 889 890 891 892 893 894 895 896 897 898 899 900 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 922 shall make the findings specified in this subsection on a case-by-case basis based on circumstances specific to the child; (e) If the child is placed outside the home under the supervision of the Department, an order ordering the child into the placement and care responsibility of the Department and assigning the Department primary responsibility for providing services to the child and family; (f) If the child is placed outside the home and if the child has one (1) or more siblings who have also been placed outside the home, a finding as to whether the Department has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the Court determines that placement of the children together would be contrary to the best interests of the child or any of those siblings, in which case the Court shall order the Department to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the Court determines that such visitation or interaction would be contrary to the best interests of the child or any of those siblings; (g) A statement of the conditions with which the parties are required to comply; and (h) If the Court finds that it would be in the best interest of the child, the Court may set reasonable rules of parental visitation. (1) If the Court denies a parent visitation, the Court shall enter conditions that shall be met by the parent in order for the parent to be granted visitation. 708.22-5. Service plans and Conditions. In a proceeding in which a child has been found to be in need of protection or services, the Court may order the child's parent, guardian and legal custodian to comply with any conditions and/or service plan determined by the Court to be necessary for the child's welfare. (a) The service plan or conditions ordered by the Court shall contain the following information: (1) The identification of the problems or conditions that resulted in the abuse or neglect of a child; (2) The treatment goals and objectives for each condition or requirement established in the plan. If the child has been removed from the home, the service plan must include, but is not limited to, the conditions or requirements that must be established for the safe return of the child to the family; (3) The specific treatment objectives that clearly identify the separate roles and responsibilities of all parties addressed in the service plan, including the Department’s specific responsibilities to make reasonable efforts to assist the parent, guardian or legal custodian in their efforts toward reunification with the child; and (4) A notice that completion of a service plan does not guarantee the return of a child and that completion of a service plan without a change in behavior that caused removal in the first instance may result in the child remaining outside the home. (b) A service plan may include recommendations and the dispositional order may require the child’s parent, guardian and legal custodian to participate in: (1) Outpatient mental health treatment; (2) Substance abuse treatment; (3) Anger management; (4) Individual or family counseling; 7 O.C. 708 – Page 21 32 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 (5) Parent training and education; (6) Cultural wellness treatment and training; and/or (7) Any other treatment as deemed appropriate by the Court. 708.22-6. If the Court finds that the parent was convicted of committing a crime against the life and bodily security of a child or a crime against a child, contained within Chapters 940 and 948 of the Wisconsin Statutes or another similar law in another jurisdiction, the Court may find that the Department is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home. 708.22-7. The Court shall provide a copy of the dispositional order to the child's parent, guardian, and legal custodian, and other parties to the action. 708.22-8. Whenever the Court orders a child to be placed outside his or her home or denies a parent visitation because the child is in need of protection or services, the Court shall orally inform the parent who appears in Court of any grounds for suspension or termination of parental rights which may be applicable and of the conditions necessary for the child to be returned to the home or for the parent to be granted visitation. The Court shall also include this information in the written dispositional order provided to the parent. 708.23. Permanency Plans 708.23-1. The Department shall prepare a written permanency plan anytime a child is placed outside the home pursuant to dispositional order that finds the child is in need of protection or services. (a) The permanency plan shall include all of the following: (1) The name, birth date, address, and tribal affiliation of the child; (2) The names, birth dates, addresses, and tribal affiliation of the child's parent(s), guardian(s), and legal custodian(s); (3) The date on which the child was removed from the home; (4) A statement as to the availability of a safe and appropriate placement with an extended family member; (5) The goal(s) of the permanency plan which may include one or more of the following: reunification, adoption, guardianship, placement with a fit and willing relative, or long-term foster care; (6) Date by which it is likely the goal(s) of the permanency plan will likely be achieved; (7) A description of the services offered and any services provided in an effort to prevent removal of the child from the home or to return the child to the home, while assuring that the best interests of the child are the paramount concerns; (8) If the child has one (1) or more siblings who have been removed from the home, a description of the efforts made to place the child in a placement that enables the sibling group to remain together. If a decision is made to not place the siblings together, a description of the efforts made to provide for frequent and ongoing visitation or other ongoing interaction between the child and siblings; (9) Information about the child’s education; and (10) Any other appropriate information as deemed necessary by the Court or the Department. 708.23-2. The Department shall file the initial permanency plan with the Court within sixty (60) days after the date the child was first removed from the home unless the child is returned to the home within that time period. 7 O.C. 708 – Page 22 33 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 708.23-3. The Court shall hold a hearing to review the permanency plan no later than six (6) months after the date on which the child was first removed from the home and every six months thereafter for as long as the child is placed outside the home and is found to be in need of protection or services. (a) At least seven (7) days before the date of the hearing, the Department shall file the updated permanency plan with the Court and provide a copy to the parties by first-class mail. (b) All parties, including foster parent(s) shall have a right to be heard at the permanency plan hearing. Any party may submit written comments to the Court no less than three (3) business days prior to the hearing date. 708.23-4. After the hearing, the Court shall enter a written order addressing the following: (a) The continuing necessity for and the safety and appropriateness of the placement; (b) The compliance with the permanency plan by the Department and any other service providers, the child’s parent(s), and the child; (c) Efforts taken to involve appropriate service providers and Department staff in meeting the special needs of the child and the child’s parent(s); (d) The progress toward eliminating the causes for the child’s placement outside the home and returning the child safely to the home or obtaining a permanent placement for the child; (e) The date by which it is likely that the child will be returned to the home or placed for adoption, with a guardian, with a fit and willing relative, or in some other permanent living arrangement; (f) Whether reasonable efforts were made by the Department to achieve the permanency plan goal(s); (g) Whether reasonable efforts were made by the Department to place the child in a placement that enables the sibling group to remain together or have frequent visitation or other ongoing interaction; and (h) The date of the next review hearing, if appropriate. 708.24. Change in Placement 708.24-1. The Department, the Nation’s Child Welfare attorney, or a party to the dispositional order may request a change in the placement of the child who is the subject of the dispositional order by filing a motion with the Court. The Court may also propose a change in placement on its own motion. 708.24-2. The request for a change in placement shall contain the name and address of the new placement requested and shall state what new information is available that affects the advisability of the current placement. 708.24-3. If the proposed change in placement moves the child outside of his or her home, the request shall contain specific information showing that continued placement of the child in the home would be contrary to the best interests of the child and if the Department is making the request, specific information showing that the Department has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's best interests are the paramount concerns. 708.24-4. Upon filing with the Court, the Department shall provide a copy of the request for a change in placement to the parties by first-class mail. 7 O.C. 708 – Page 23 34 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 (a) The Department shall schedule a hearing prior to placing the child outside of the home, unless emergency conditions that necessitate an immediate change in the placement of a child apply. (b) A hearing is not required when the child currently placed outside the home transfers to another out-of-home placement. (1) A party may request a hearing when the child is transferred to a different outof-home placement by submitting a written request to the Court within ten (10) days of being served with the notice of the proposed change. 708.24-5. If a hearing is held, any party may present evidence relevant to the issue of the change in placement. In addition, the Court shall give a foster parent or other legal custodian a right to be heard at the hearing by permitting the foster parent or other legal custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issue of change in placement. 708.24-6. Emergency Change in Placement. If emergency conditions necessitate an immediate change in the placement of a child, the Department may remove the child to a new placement, whether or not authorized by the existing dispositional order. The Department shall notify the parties of the emergency change in placement by personal service as soon as possible but no later than seventy-two (72) hours after the emergency change in placement excluding Saturdays, Sundays, and holidays. If the emergency conditions necessitate an immediate change in placement of a child placed in the home to a placement outside the home, the Department shall schedule the matter for a hearing as soon as possible but no later than seventy-two (72) hours after the emergency change in placement is made, excluding Saturdays, Sundays, and holidays. 708.24-7. The parties may agree to a change in placement by signing a stipulation and filing it with the Court for approval. 708.24-8. No change in placement may extend the expiration date of the original dispositional order, except that if the change in placement is from a placement in the child's home to a placement outside the home the Court may extend the expiration date of the original dispositional order to the latest of the following dates, unless the Court specifies a shorter period: (a) The date on which the child reaches eighteen (18) years of age; (b) The date that is one (1) year after the date on which the change-in-placement order is granted; or (c) The date on which the child is granted a high school or high school equivalency diploma or the date on which the child reaches nineteen (19) years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching nineteen (19) years of age. 708.24-9. If the change in placement is from a placement outside the home to a placement in the child's home and if the expiration date of the original dispositional order is more than one (1) year after the date on which the change-in-placement order is granted, the Court shall shorten the expiration date of the original dispositional order to the date that is one (1) year after the date on which the change-in-placement order is granted or to an earlier date as specified by the Court. 708.25. Trial Reunification 708.25-1. The Department or the Nation’s Child Welfare attorney may request the Court to order a trial reunification. A trial reunification occurs when a child placed in an out-of-home placement resides in the home of a parent, guardian, or legal custodian from which the child was removed for 7 O.C. 708 – Page 24 35 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 a period of seven (7) consecutive days or longer, but not exceeding one hundred fifty (150) days, for the purpose of determining the appropriateness of changing the placement of the child to that home. A trial reunification is not a change in placement under section 708.24. 708.25-2. Request for Trial Reunification. The Department or the Nation’s Child Welfare attorney shall include the following in the request for a trial reunification: (a) The name and address of the requested trial reunification home; (b) A statement describing why the trial reunification is in the best interests of the child; and (c) A statement describing how the trial reunification satisfies the objective of the child’s permanency plan. 708.25-3. Emergency Removal of a Child. A request for a trial reunification may not be made on the sole grounds that an emergency condition necessitates an immediate removal of the child from the child’s out-of-home placement. If an emergency condition necessitates such an immediate removal, the Department shall proceed with an emergency change in placement as described in section 708.24-6. 708.25-4. Notice. The Department or Nation’s Child Welfare attorney shall submit the request to the Court. Upon filing with the Court and at least seven (7) days before the date of reunification, the Department shall provide the parent, guardian, legal custodian, and any other party written notice of the proposed reunification by first-class mail. The notice shall contain the information that is required to be included in the request under section 708.25-2. 708.25-5. Trial Reunification Hearing. Any party who is entitled to receive notice of a requested trial reunification may obtain a hearing on the matter by filing an objection with the Court within ten (10) days after the trial reunification request was filed with the Court. (a) If no objection against the trial reunification is filed, the Court may issue an order for the trial reunification. (b) If an objection is filed, a hearing shall be held within forty five (45) days after the request was filed with the Court. A trial reunification shall not occur until after the hearing. Not less than three (3) business days before the hearing the Court shall provide notice of the hearing to all parties. (1) If a hearing is held and the trial reunification would remove a child from a foster home or other placement with a legal custodian, the Court shall give the foster parent or other legal custodian a right to be heard at the hearing by permitting the foster parent or legal custodian to make a written or oral statement relating to the child and the requested trial reunification. (2) The Court may appoint a guardian ad litem for the child during the trial reunification hearing. 708.25-6. Order. If the Court finds that the trial reunification is in the best interest of the child and that the trial reunification satisfies the objectives of the child’s permanency plan, the Court shall order the trial reunification. The trial reunification shall terminate ninety (90) days after the date of the order, unless the Court specifies a shorter period in the order, or extends or revokes the trial reunification. No trial reunification order may extend the expiration date of the original dispositional order or any extension of the dispositional order. 708.25-7. Extension of Trial Reunification. The Department may request an extension of a trial reunification. (a) Extension Request. The request shall contain a statement describing how the trial reunification continues to be in the best interests of the child. No later than seven (7) days 7 O.C. 708 – Page 25 36 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 1106 1107 1108 1109 1110 1111 1112 1113 1114 1115 1116 1117 1118 1119 1120 1121 1122 1123 1124 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 1148 1149 1150 1151 prior to the expiration of the trial reunification, the Department shall submit the request to the Court and shall cause notice of the request to be provided to all parties by first-class mail. (b) Extension Hearing. Any party may obtain a hearing on the requested extension by filing an objection with the Court within ten (10) days after the extension request was filed with the Court. (1) If no objection is filed, the Court may order an extension of the trial reunification. (2) If an objection is filed, the Court shall schedule a hearing on the matter. If the Court is unable to conduct a hearing on the matter before the trial reunification expires, the trial reunification shall remain in effect until the Court is able hold the hearing. Not less than three (3) business days before the hearing the Court shall provide notice of the hearing to all parties. (c) Extension Order. If the Court finds that the trial reunification continues to be in the best interests of the child, the Court shall grant an order extending the trial reunification for a period specified by the Court. Any number of extensions may be granted, but the total period for a trial reunification may not exceed one hundred and fifty (150) days. 708.25-8. End of Trial Reunification Period. When a trial reunification period ends, the Department shall do one (1) of the following: (a) Return the child to his or her out-of-home placement. The Department may do so without further order of the Court, but within five (5) days after the return of the child to his or her out-of-home placement the Department shall provide the parties with written notice of the following by first-class mail: (1) the date of the return of the child to the out-of-home placement; and (2) the address of that placement to all parties, unless providing the address would present imminent danger to the child; (b) Request a change in placement under section 708.24 to place the child in a new out-ofhome placement; or (c) Request a change in placement under section 708.24 to place the child in the trial reunification home. 708.25-9. Revocation of Trial Reunification. The Department may determine that a trial reunification is no longer in the best interests of the child and revoke the trial reunification before the specified trial reunification period ends. (a) Revocation Request. If the Department determines that the trial reunification is no longer in the best interests of the child, the Department, without prior order by the Court, may remove the child from the trial reunification home and place the child in the child’s previous out-of-home placement or place the child in a new out-of-home placement. (1) If the Department places the child in the child’s previous out-of-home placement, within three (3) business days of removing the child from the trial reunification home, the Department shall submit a request for revocation of the trial reunification to the Court and shall provide notice of the request to all parties by first-class mail. The request shall contain the following information: (A) the date on which the child was removed from the trial reunification home; (B) the address of the child’s current placement, unless providing the address would present imminent danger to the child; and 7 O.C. 708 – Page 26 37 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 1152 1153 1154 1155 1156 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 1187 1188 1189 1190 1191 1192 1193 1194 1195 1196 1197 (C) the reasons for the proposed revocation. (2) If the Department places the child in a new out-of-home placement, within three (3) business days of removing the child from the trial reunification home, the Department shall request a change in placement under section 708.22. The procedures specified in section 708.24, including all notice procedures, apply to a change in placement requested under this subsection, except that the request shall include the date on which the child was removed from the trial reunification home in addition to the information required in 708.24-2. The trial reunification is revoked when the change in placement order is granted. (b) Revocation Hearing. Any party may obtain a hearing on the matter by filing an objection with the Court within ten (10) days after the request was filed with the Court. (1) If no objection is filed, the Court may issue a revocation order. (2) If an objection is filed, the Court shall schedule a hearing on the matter. Not less than three (3) business days before the hearing the Court shall provide notice of the hearing to all parties. (c) Revocation Order. If the Court finds that the trial reunification is no longer in the best interests of the child who has been placed in his or her previous out-of-home placement, the Court shall grant an order revoking the trial reunification. 708.25-10. Prohibited Trial Reunifications. The Court may not order a trial reunification in the home of an adult who has been convicted of the first-degree intentional homicide or the seconddegree intentional homicide of a parent of the child or any crime against a child, if the conviction has not been reversed, set aside, vacated or pardoned. If a parent in whose home a child is placed for a trial reunification is convicted of homicide or a crime against a child, and the conviction has not been reversed, set aside, vacated or pardoned, the Court shall revoke the trial reunification and the child shall be returned to his or her previous out-of-home placement, or placed in a new outof-home placement. (a) Exception. A prohibition against trial reunifications based on homicide of a parent or a crime against a child does not apply if the Court determines by clear and convincing evidence that the placement would be in the best interests of the child. 708.26. Revision of Dispositional Orders 708.26-1. A party, or the Court on its own motion, may request a revision in the dispositional order that does not involve a change in placement. 708.26-2. The request or Court proposal shall set forth in detail the nature of the proposed revision and what new information is available that affects the advisability of the Court's disposition. The request for revision shall be filed with the Court with notice provided to the parties by first-class mail. 708.26-3. The Court shall hold a hearing on the matter prior to any revision of the dispositional order if the request or Court proposal indicates that new information is available that affects the advisability of the Court's dispositional order, unless the parties file a signed stipulation and the Court approves. 708.26-4. If a hearing is held, any party may present evidence relevant to the issue of revision of the dispositional order. In addition, the Court shall give a foster parent or other legal custodian a right to be heard at the hearing by permitting the foster parent or other legal custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issue of revision. 7 O.C. 708 – Page 27 38 of 245 Draft 3 (Redline to Draft 2 – PM Draft) 2022 07 20 1198 1199 1200 1201 1202 1203 1204 1205 1206 1207 1208 1209 1210 1211 1212 1213 1214 1215 1216 1217 1218 1219 1220 1221 1222 1223 1224 1225 1226 1227 1228 1229 1230 1231 1232 1233 1234 1235 1236 1237 1238 1239 1240 1241 1242 1243 708.27. Extension of Dispositional Orders 708.27-1. A party, or the Court on its own motion, may request an extension of a dispositional order. The request shall be filed with the Court with notice to the parties by first-class mail. 708.27-2. No order may be extended without a hearing, unless the parties file a signed stipul [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aoneida_nation%3A0c8574d7cb39b4bc. Public record. Not legal advice.