Title 7. Children, Elders and Family - Chapter 708

Tribal code

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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

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-09-14-22-A.

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

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;

(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.

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

(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

(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

(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

(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;

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

(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

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

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;

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;

and children in foster care;

7 O.C. 708 – Page 8

(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;

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.

(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

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

7 O.C. 708 – Page 10

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;

(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

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.

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.

708.14-4. 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.

708.14-5. 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.

7 O.C. 708 – Page 12

708.14-6. 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.

708.14-7. 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

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;

neglecting, refusing, unable or unavailable to provide adequate supervision and care, and

that services to ensure the child's safety and well-being are not available or would be

inadequate;

7 O.C. 708 – Page 13

(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;

(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;

(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

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

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;

(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

(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;

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

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;

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

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

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

(b) A strategic plan for the care of and assistance to the child and family calculated to

resolve the concerns presented in the petition;

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;

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;

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

(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;

(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

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

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

(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

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;

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

(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

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

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

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

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.

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

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

(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.

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

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 stipulation

and the Court approves.

708.27-3. Any party may present evidence relevant to the issue of extension. If the child is placed

outside of his or her home, the Department shall present as evidence specific information showing

that the Department has made reasonable efforts to achieve the permanency goal of the child's

permanency plan. 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 extension.

708.27-4. The Court shall make findings of fact and conclusions of law based on the evidence.

The findings of fact shall include a finding as to whether reasonable efforts were made by the

Department to achieve the permanency goal of the child's permanency plan if applicable.

708.27-5. If a request to extend a dispositional order is made prior to the termination of the order,

but the Court is unable to conduct a hearing on the request prior to the termination date, the order

shall remain in effect until such time as an extension hearing is conducted.

708.28. Continuation of Dispositional Orders

708.28-1. If a petition for suspension or termination of parental rights or guardianship is filed or

an appeal from a suspension or termination of parental rights or guardianship judgment is filed

during the year in which a child in need of protection or services dispositional order is in effect,

the dispositional order shall remain in effect until all proceedings related to the petition or appeal

are concluded.

708.29. Guardianship for Certain Children in Need of Protection or Services

708.29-1. Conditions for Guardianship. The Court may appoint a guardian for a child if the Court

finds all of the following:

(a) That the child has been found to be in need of protection or services under this law and

has been placed outside of his or her home pursuant to one (1) or more Court orders, or

that the child has been found to be in need of protection or services and placement of the

child in the home of a guardian under this section has been recommended by the

Department at the dispositional hearing;

(b) That the person nominated as the guardian of the child is a person with whom the child

has been placed or in whose home placement of the child is recommended by the

Department and that it is likely that the child will continue to be placed with that person

for an extended period of time or until the child attains the age of eighteen (18) years;

child's guardian for an extended period of time or until the child attains the age of eighteen

(18) years;

(d) That it is not in the best interests of the child that a petition to suspend or terminate

parental rights be filed with respect to the child;

(e) That the child's parents are neglecting, refusing or unable to carry out the duties of a

guardian; and

7 O.C. 708 – Page 28

(f) That the Department has made reasonable efforts to make it possible for the child to

return to his or her home, while assuring that the child's best interests are the paramount

concerns, but that reunification of the child with the child's parent(s) is unlikely or contrary

to the best interests of the child and that further reunification efforts are unlikely to be made

or are contrary to the best interests of the child or that the Department has made reasonable

efforts to prevent the removal of the child from his or her home, while assuring the child's

best interests, but that continued placement of the child in the home would be contrary to

the best interests of the child.

708.29-2. Who May File a Petition for Guardianship. Any of the following persons may file a

petition for the appointment of a guardian for a child under this section:

(a) The child;

(b) The child's guardian ad litem;

(d) The person with whom the child is placed or in whose home placement of the child is

recommended by the Department;

(e) The Department; or

(f) The Nation’s Child Welfare attorney.

708.29-3. Petition for Guardianship. A proceeding for the appointment of a guardian for a child

shall be initiated by a petition which 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 parents;

the order placing the child outside of the parental home; and

(d) A statement of the facts and circumstances which the petitioner alleges establish that

the conditions for guardianship specified in section 708.29-1(a)-(f) are met.

708.29-4. Notice of Petition for Guardianship. Upon filing with the Court and at least seven (7)

days prior to the plea hearing, the party that filed the guardianship petition shall provide a copy of

the petition to the other parties by personal service or, if personal service is not possible, by

certified mail with return receipt requested.

708.29-5. Presence of the Proposed Guardian. The proposed guardian shall be present at all

guardianship hearings. The Court may waive the appearance requirement for the proposed

guardian if the Court determines there is good cause.

708.29-6. Plea Hearing for Guardianship. A plea hearing to determine whether any party wishes

to contest a petition for guardianship shall take place no sooner than ten (10) days after the filing

of the petition. At the hearing, the non-petitioning parties shall state whether they wish to contest

the petition. Before accepting an admission or a plea of no contest to the allegations in the petition,

the Court shall do all of the following:

(a) Address the parties present and determine that the admission or plea of no contest is

made voluntarily and with understanding of the nature of the facts alleged in the petition,

the nature of the potential outcomes and possible dispositions by the Court and the nature

of the legal consequences of that disposition;

(b) Establish whether any promises or threats were made to elicit the admission or plea of

no contest; and

for the admission or plea of no contest.

7 O.C. 708 – Page 29

708.29-7. If the petition is not contested and if the Court accepts the admission or plea of no

contest, the Court may immediately proceed to a dispositional hearing unless an adjournment is

requested.

708.29-8. If the petition is contested or if the Court does not accept the admission or plea of no

contest, the Court shall set a date for a fact-finding hearing which allows reasonable time for the

parties to prepare but is not more than sixty (60) days after the plea hearing, unless the Court enters

an order finding good cause to go outside the time limits.

(a) If the petition is contested, the Court shall order the Department to file with the Court

a report containing as much information relating to the appointment of a guardian as is

reasonably ascertainable, including an assessment of the conditions for guardianship

specified in section 708.29-1(a)-(f). Upon filing with the Court and at least seven (7) days

prior to the hearing, the Department shall provide the parent, guardian, legal custodian,

proposed guardian, and any other parties a written copy of the report by first-class mail.

708.29-9. Fact Finding Hearing for Guardianship. The Court shall hold a fact-finding hearing

on the petition at which any party may present evidence relevant to the issue of whether the

conditions for guardianship have been met. If the Court, at the conclusion of the fact-finding

hearing, finds by clear and convincing evidence that the conditions for guardianship specified in

section 708.29-1(a)-(f) have been met, the Court shall immediately proceed to a dispositional

hearing unless an adjournment is requested.

708.29-10. Dispositional Hearing for Guardianship. The Court shall hold a dispositional hearing

at which any party may present evidence, including expert testimony, relevant to the disposition.

In determining the appropriate disposition for guardianship, the Court shall use the best interests

of the child as the prevailing factor to be considered by the Court. In making a decision about the

appropriate disposition, the Court shall consider any report submitted by the Department and shall

consider, but not be limited to, all of the following:

(a) Whether the person would be a suitable guardian of the child;

(b) The willingness and ability of the person to serve as the child's guardian for an extended

period of time or until the child reaches the age of eighteen (18) years; and

708.29-11. Dispositional Order for Guardianship. After receiving any evidence relating to the

disposition, the Court shall enter one of the following dispositions and issue a written decision

consistent with the Oneida Judiciary Rules of Civil Procedure:

(a) A disposition dismissing the petition if the Court determines that appointment of the

person as the child's guardian is not in the best interests of the child; or

(b) A disposition ordering that the proposed guardian be appointed as the child's guardian

if the Court determines that such an appointment is in the best interests of the child.

708.29-12. If the Court appoints a guardian for the child, the Court may dismiss the dispositional

order finding that the child is in need of protection or services.

708.30. Revisions of Guardianship Order

708.30-1. Any person authorized to file a guardianship petition or the Court, on its own motion

may request a revision in a guardianship order.

708.30-2. The motion or Court proposal shall set forth in detail the nature of the proposed revision,

shall allege facts sufficient to show that there has been a substantial change in circumstances since

the last order affecting the guardianship was entered and that the proposed revision would be in

the best interests of the child and shall allege any other information that affects the advisability of

7 O.C. 708 – Page 30

the Court's disposition. The motion for the revision shall be filed with the Court and, upon filing,

a written copy shall be provided to all parties by first-class mail.

(a) The Court may order the Department to file with the Court a report containing as much

information relating to the revision of the guardianship as is reasonably ascertainable. Upon

filing with the Court and at least seven (7) days prior to the revision hearing, the

Department shall provide the parties with a written copy of the report by first-class mail.

708.30-3. The Court shall hold a hearing on the matter prior to any revision of the guardianship

order if the motion or Court proposal indicates that new information is available which affects the

advisability of the Court's guardianship order, unless the parties file a signed stipulation and the

Court approves.

708.31. Termination of Guardianship

708.31-1. A guardianship under this law shall continue until any of the following are met,

whichever occurs earlier:

(a) The date on which the child attains eighteen (18) years of age;

(b) 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; or

708.31-2. A parent of the child may request that a guardianship order be terminated. The request

shall allege facts sufficient to show that there has been a substantial change in circumstances since

the last order affecting the guardianship was entered, that the parent is willing and able to carry

out the duties of a guardian and that the proposed termination of guardianship would be in the best

interests of the child. The Court shall hold a hearing on the matter unless the parties file a signed

stipulation and the Court approves.

(a) The Court may order the Department to file with the Court a report containing as much

information relating to the termination of the guardianship as is reasonably ascertainable,

including a re-assessment of the conditions for guardianship specified in section 708.291(a)-(f). Upon filing with the Court and at least seven (7) days prior to the termination

hearing, the Department shall provide the parties with a written copy of the report by firstclass mail.

708.31-3. Any person authorized to file a petition for guardianship may request that an appointed

guardian be removed for cause or the Court may, on its own motion, propose such a removal. The

request or Court proposal shall allege facts sufficient to show that the guardian is or has been

neglecting, is or has been refusing, or is or has been unable to discharge the guardian's trust and

may allege facts relating to any other information that affects the advisability of the Court's

disposition. The Court shall hold a hearing on the matter.

708.31-4. A guardian appointed under this law may resign at any time if the resignation is accepted

by the Court.

7 O.C. 708 – Page 31

708.32. Suspension or Termination of Parental Rights

708.32-1. It is the philosophy of the Nation that children deserve a sense of permanency and

belonging throughout their lives and at the same time they deserve to have knowledge about their

unique cultural heritage including their tribal customs, history, language, religion and values.

708.32-2. It is the philosophy of the Nation that a united and complete family unit is of the utmost

value to the community and the individual family members, and that the parent-child relationship

is of such vital importance that it should be suspended or terminated only as a last resort when all

efforts have failed to avoid suspension or termination and it is in the best interests of the child

concerned to proceed with the suspension or termination of parental rights.

708.32-3. Suspension of Parental Rights. The suspension of parental rights is the permanent

suspension of the rights of biological parents to provide for the care, custody, and control of their

child.

708.32-4. Termination of Parental Rights. The termination of parental rights means that all rights,

powers, privileges, immunities, duties and obligations existing between biological parent and child

are permanently severed.

708.32-5. The Court may suspend or terminate a parent’s rights on a voluntary or involuntary

basis.

708.32-6. An order suspending or terminating parental rights permanently severs all legal rights

and duties between the parent whose parental rights are suspended or terminated and the child.

708.32-7. The suspension or termination of parental rights shall not adversely affect the child’s

rights and privileges as a member of the Nation, nor as a member of any tribe to which the child

is entitled to membership, nor shall it affect the child’s enrollment status with the Nation, nor shall

it interfere with the child’s cultural level and traditional and spiritual growth as a member of the

Nation.

708.33. Voluntary Suspension or Termination of Parental Rights

708.33-1. The Court may suspend or terminate the parental rights of a parent after the parent has

given his or her consent. When such voluntary consent is given and the Department has submitted

a court report pursuant to section 708.38, the Court may proceed immediately to a dispositional

hearing.

708.33-2. The Court may accept a voluntary consent to suspension or termination of parental

rights only if the parent appears personally at the hearing and gives his or her consent to the

suspension or termination of his or her parental rights. The Court may accept the consent only after

the judge has explained the effect of suspension or termination of parental rights and has

questioned the parent, and/or has permitted counsel who represents any of the parties to question

the parent, and is satisfied that the consent is informed and voluntary. If the Court finds that it

would be difficult or impossible for the parent to appear in person at the hearing, the Court may

allow the parent to appear by telephone or live audiovisual means.

708.33-3. If in any proceeding to suspend or terminate parental rights voluntarily any party has

reason to doubt the capacity of a parent to give informed and voluntary consent to the suspension

or termination, he or she shall so inform the Court. The Court shall then inquire into the capacity

of that parent in any appropriate way and shall make a finding as to whether or not the parent is

capable of giving informed and voluntary consent to the suspension or termination. If in the

Court’s discretion a person is found incapable of knowingly and voluntarily consenting to the

suspension or termination of their parental rights, the Court shall dismiss the voluntary proceedings

7 O.C. 708 – Page 32

without prejudice. That dismissal shall not preclude an involuntary suspension or termination of

the parent's rights.

708.33-4. A parent who has executed a consent under this section may withdraw the consent for

any reason at any time prior to the entry of a final order suspending or terminating parental rights.

708.33-5. Any consent given under this section prior to or within ten (10) days after the birth of

the child is not valid.

708.33-6. The parties, and the placement provider or adoptive resource, may agree to attend

peacemaking to establish an agreement regarding post-voluntary suspension or termination of

parental rights contact with a birth parent, birth sibling, or other birth relative of the child.

(a) Any party to a post-voluntary suspension or termination contact agreement or the

child who is the subject of the proceedings may petition the Court that approved the

agreement to compel any person who is bound by the agreement to comply with the

agreement. The petition shall allege facts sufficient to show that a person who is bound

by the agreement is not in compliance with the agreement and that the petitioner, before

filing the petition, attempted in good faith to resolve the dispute giving rise to the filing

of the petition. The petition may also allege facts showing that the noncompliance with

the agreement is not in the best interests of the child.

(b) After receiving a petition for action regarding a post-voluntary suspension or

termination contact agreement the Court shall set a date and time for a hearing on the

petition and shall provide notice of the hearing to all parties to the agreement and may

reappoint a guardian ad litem for the child.

compliance with the agreement and that the petitioner, before filing the petition,

attempted in good faith to resolve the dispute giving rise to the filing of the petition,

the Court shall issue an order requiring the person to comply with the agreement and

may find a party in contempt.

(d) The Court may not revoke a suspension or termination of parental rights order or

an order of adoption because an adoptive parent or other custodian of the child or a

birth parent, birth sibling, or other birth relative of the child fails to comply with a postvoluntary suspension or termination contact agreement; however, the parties may

return to peacemaking to revise the agreement, or the Court may amend an order if it

finds an amendment to the order is in the best interests of the child.

708.34. Grounds for Involuntary Suspension or Termination of Parental Rights

708.34-1. Grounds for suspension or termination of parental rights shall be any of the following:

(a) Abandonment. Abandonment occurs when a parent either deserts a child without any

regard for the child’s physical health, safety or welfare and with the intention of wholly

abandoning the child, or in some instances, fails to provide necessary care for their child.

(1) Abandonment shall be established by proving any of the following:

(A) That the child has been left without provision for the child's care or

support, the petitioner has investigated the circumstances surrounding the

matter and for sixty (60) consecutive days the petitioner has been unable to

find either parent;

(B) That the child has been left by the parent without provision for the

child's care or support in a place or manner that exposes the child to

substantial risk of great bodily harm or death;

7 O.C. 708 – Page 33

(C)

That a court of competent jurisdiction has found any of the

following:

(i) That a child has been abandoned under Wis. Stat. 48.13 (2) or

under a law of any other state or a federal law that is comparable to

the state law;

(ii) That the child was abandoned when the child was under one (1)

year of age or has found that the parent abandoned the child when

the child was under one (1) year of age in violation of Wis. Stat.

948.20 or in violation of the law of any other state or federal law, if

that violation would be a violation of abandonment of a child under

Wis. Stat. 948.20 if committed in this state;

(D) That the child has been placed, or continued in a placement, outside the

parent's home by a Court order containing the required notice and the parent

has failed to visit or communicate with the child for a period of three (3)

months or longer; or

(E) The child has been left by the parent with any person, the parent knows

or could discover the whereabouts of the child and the parent has failed to

visit or communicate with the child for a period of six (6) consecutive

months or longer.

(2) Incidental contact between parent and child shall not preclude the Court from

finding that the parent has failed to visit or communicate with the child. The time

periods under sections 708.34-1(a)(1)(D) and 708.34-1(a)(1)(E) shall not include

any periods during which the parent has been prohibited by Court order from

visiting or communicating with the child.

(3) Abandonment is not established under sections 708.34-1(a)(1)(D) and 708.341(a)(1)(E) if the parent proves all of the following by clear and convincing

evidence:

(A) That the parent had good cause for having failed to visit with the child

throughout the three (3) or six (6) month time period alleged in the petition.

(B) That the parent had good cause for having failed to communicate with

the child throughout the three (3) or six (6) month time period alleged in the

petition.

including good cause based on evidence that the child's age or condition

would have rendered any communication with the child meaningless, that

one (1) of the following occurred:

(i) The parent communicated about the child with the person or

persons who had physical custody of the child during the three (3) or

six (6) month time period alleged in the petition, whichever is

applicable, or, with the Department during the three (3) month time

period alleged in the petition.

(ii) The parent had good cause for having failed to communicate about

the child with the person or persons who had physical custody of the

child or the Department throughout the three (3) or six (6) month time

period alleged in the petition.

7 O.C. 708 – Page 34

(b) Relinquishment. Relinquishment occurs when a parent gives up or abandons their child

and all rights to their child. Relinquishment shall be established by proving that a court of

competent jurisdiction has found that the parent has relinquished custody of the child when

the child was seventy-two (72) hours old or younger.

shall be established by proving any of the following:

(1) That the child has been found to be in need of protection or services and placed,

or continued in a placement, outside his or her home pursuant to one (1) or more

dispositional orders containing the notice required by section 708.22-8;

(2) That the Department has made a reasonable effort to provide the services

ordered by the Court;

(3) That the child has been outside the home for a cumulative total period of six (6)

months or longer pursuant to such orders; and that the parent has failed to meet the

conditions established for the safe return of the child to the home and, if the child

has been placed outside the home for less than fifteen (15) of the most recent

twenty-two (22) months, that there is a substantial likelihood that the parent will

not meet these conditions as of the date on which the child will have been placed

outside the home for fifteen (15) of the most recent twenty-two (22) months, not

including any period during which the child was a runaway from the out-of-home

placement or was residing in a trial reunification home.

(d) Continuing Parental Disability. Continuing parental disability shall be established by

proving that:

(1) The parent is presently, and for a cumulative total period of at least two (2)

years within the five (5) years immediately prior to the filing of the petition has

been, an inpatient at one (1) or more hospitals as defined in either the Nation’s laws

or state law;

(2) The condition of the parent is likely to continue indefinitely; and

(3) The child is not being provided with adequate care by a relative who has legal

custody of the child, or by a parent or a guardian.

(e) Continuing Denial of Periods of Physical Placement or Visitation. Continuing denial

of periods of physical placement or visitation shall be established by proving all of the

following:

(1) The parent has been denied periods of physical placement by Court order in an

action affecting the family or has been denied visitation under a dispositional order

containing the notice required by section 708.22-8, Wis. Stat. 48.356(2), or Wis.

Stat. 938.356 (2); and

(2) A Court order has denied the parent periods of physical placement or visitation

for at least one (1) year.

(f) Child Abuse. Child abuse shall be established by proving that the parent has committed

child abuse against the child who is the subject of the petition and proving either of the

following:

(1) That the parent has caused death or injury to a child resulting in a felony

conviction; or

(2) That a child has previously been removed from the parent's home pursuant to a

dispositional order after an adjudication that the child is in need of protection or

services.

7 O.C. 708 – Page 35

(g) Failure to Assume Parental Responsibility. Failure to assume parental responsibility

shall be established by proving that the parent or the person(s) who may be the parent of

the child have not had a substantial parental relationship with the child.

(1) In evaluating whether the person has had a substantial parental relationship with

the child, the Court may consider such factors, including, but not limited to, the

following:

(A) Whether the person has expressed concern for or interest in the support,

care or well-being of the child;

(B) Whether the person has neglected or refused to provide care or support for

the child; and

the person has expressed concern for or interest in the support, care or wellbeing of the mother during her pregnancy.

(h) Incestuous Parenthood. Incestuous parenthood shall be established by proving that the

person whose parental rights are sought to be terminated is also related, either by blood or

adoption, to the child's other parent in a degree of kinship closer than 2nd cousin.

(i) Homicide or Solicitation to Commit Homicide of a Parent. Homicide or solicitation to

commit homicide of a parent, which shall be established by proving that a parent of the

child has been a victim of first-degree intentional homicide, first-degree reckless homicide

or 2nd-degree intentional homicide or a crime under federal law or the law of any other

state that is comparable to any of those crimes, or has been the intended victim of a

solicitation to commit first-degree intentional homicide or a crime under federal law or the

law of any other state that is comparable to that crime, and that the person whose parental

rights are sought to be terminated has been convicted of that intentional or reckless

homicide, solicitation or crime as evidenced by a final judgment of conviction.

(j) Parenthood as a Result of Sexual Assault.

(1) Parenthood as a result of sexual assault shall be established by proving that the

child was conceived as a result of one of the following:

(A) First degree sexual assault [under Wis. Stats. 940.225(1)];

(B) Second degree sexual assault [under Wis. Stat. 940.225 (2)];

(D) First degree sexual assault of a child [under Wis. Stat. 948.02(1)];

(E) Second degree sexual assault of a child [under Wis. Stat. 948.02 (2)];

(F) Engaging in repeated acts of sexual assault of the same child [under Wis.

Stat. 948.025]; or

(G) Sexual assault of a child placed in substitute care [under Wis. Stat.

948.085].

(2) Conception as a result of sexual assault may be proved by a final judgment of

conviction or other evidence produced at a suspension or termination of parental

rights fact-finding hearing indicating that the person who may be the parent of the

child committed, during a possible time of conception, a sexual assault as specified

in this section against the other parent of the child.

(3) If the conviction or other evidence indicates that the child was conceived as a

result of a sexual assault in violation of Wis. Stat. 948.02 (1) or (2) or 948.085, the

parent of the child may be heard on his or her desire for the suspension or

termination of the other parent’s parental rights.

7 O.C. 708 – Page 36

(k) Commission of a Felony Against a Child.

(1) Commission of a serious felony against the child, shall be established by

proving that the child was the victim of a serious felony and parent was convicted

of that serious felony.

(2) In this subsection, “serious felony” means any of the following:

(A) The commission of, the aiding or abetting of, or the solicitation,

conspiracy or attempt to commit, a violation of any of the following:

(i) First degree intentional homicide [under Wis. Stat. 940.01];

(ii) First degree reckless homicide [under Wis. Stat. 940.02];

(iii) Felony murder [under Wis. Stat. 940.03];

(iv) Second-degree intentional homicide [under Wis. Stat. 940.05]; or

(v) A violation of the law of any other state or federal law, if that

violation would be a violation of the above-mentioned felonies if

committed in Wisconsin.

(B) The commission of a violation of any of the following:

(i) Battery, substantial battery, aggravated battery [under Wis. Stat.

940.19 (3), 1708 stats., or Wis. Stats. 940.19 (2), (4) or (5)];

(ii) Sexual assault [under Wis. Stat. 940.225 (1) or (2)];

(iii) Sexual assault of a child [under Wis. Stat. 948.02 (1) or (2)];

(iv) Engaging in repeated acts of sexual assault of the same child [under

Wis. Stat. 948.025];

(v) Physical abuse of a child [under Wis. Stats. 948.03 (2) (a), (3) (a),

or (5) (a) 1., 2., or 3.];

(vi) Sexual exploitation of a child [under Wis. Stat. 948.05];

(vii) Trafficking of a child [under Wis. Stat. 948.051];

(viii) Incest with a child [under Wis. Stat. 948.06];

(ix) Soliciting a child for prostitution [under Wis. Stat. 948.08];

(x), Human trafficking [under Wis. Stat. 940.302 (2) if Wis. Stat.

940.302 (2) (a) 1. b. applies]; or

(xi) A violation of the law of any other state or federal law, if that

violation would be a violation listed under the above listed felonies if

committed in Wisconsin.

948.21 or a violation of the law of any other state or federal law, if that

violation would be a violation of Wis. Stat. 948.21 if committed in this state,

that resulted in the death of the victim.

(l) Prior Involuntary Suspension or Termination of Parental Rights of Another Child.

Prior involuntary suspension or termination of parental rights to another child shall be

established by proving all of the following:

(1) That the child who is the subject of the petition is in need of protection or

services under section 708.5-2(b), (d), or (k); or that the child who is the subject of

the petition was born after the filing of a petition under this subsection whose

subject is a sibling of the child; and

(2) That, within three (3) years prior to the date the Court determined the child to

be in need of protection or services as specified in section 708.34-1 (l) (1) or, in the

case of a child born after the filing of a petition as specified in section 708.34-1 (l)

7 O.C. 708 – Page 37

(1), within three (3) years prior to the date of birth of the child, a Court has ordered

the suspension or termination of parental rights with respect to another child of the

person whose parental rights are sought to be suspended or terminated on one or

more of the grounds specified in this section.

708.35. Petition for Suspension or Termination of Parental Rights

708.35-1. Who May File a Petition for Suspension or Termination of Parental Rights. A petition

for the suspension or termination of parental rights shall be filed by the:

(a) Nation’s Child Welfare attorney;

(b) Department; or

708.35-2. A petition for the suspension or termination of parental rights shall be filed when the

child has been placed outside of his or her home for fifteen (15) of the most recent twenty-two (22)

months or if grounds exist for suspension or termination of parental rights unless any of the

following applies:

(a) The child is being cared for by a fit and willing relative of the child;

(b) The child's permanency plan indicates and provides documentation that suspension or

termination of parental rights to the child is not in the best interests of the child;

to make it possible for the child to return safely to his or her home or did not provide or

refer services to the family of the child for the safe return of the child to his or her home

that were consistent with the permanency plan; or

(d) Grounds for an involuntary suspension or termination of parental rights do not exist.

708.35-3. A petition for the suspension or termination of parental rights shall include the following

information:

(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 parents;

(d) One (1) of the following:

(1) A statement that consent will be given to voluntary suspension or termination

of parental rights as provided in section 708.33; or

(2) A statement of the grounds for involuntary suspension or termination of

parental rights under section 708.34 and a statement of the facts and circumstances

which the petitioner alleges establish these grounds.

708.35-4. Temporary Order and Injunction Prohibiting Contact. If the petition includes a

statement of the grounds for involuntary suspension or termination of parental rights, the petitioner

may, at the time the petition is filed, also petition the Court for a temporary order and an injunction

prohibiting the person whose parental rights are sought to be suspended or terminated from visiting

or contacting the child who is the subject of the petition. Any petition under this section shall

allege facts sufficient to show that prohibiting visitation or contact would be in the best interests

of the child.

(a) The Court may grant an injunction prohibiting the respondent from visiting or

contacting the child if the Court determines that the prohibition would be in the best

interests of the child. An injunction under this subsection is effective according to its terms

but may not remain in effect beyond the date the Court dismisses the petition for suspension

7 O.C. 708 – Page 38

or termination of parental rights or issues an order suspending or terminating parental

rights.

708.35-5. Upon filing with the Court and at least seven (7) days prior to the initial hearing, the

petitioner shall serve the summons and petition upon the following persons by personal service or,

if personal service is not possible, by certified mail, return receipt requested:

(a) The parent(s) of the child, including an alleged father if paternity has not been

established; and

(b) The child’s foster parent, guardian or legal custodian, if applicable. If the address has

been marked confidential by the Court, the Court shall send a copy of the summons and

petition to the home in which the child is placed via first-class U.S. mail.

708.36. Initial Hearing on the Suspension or Termination of Parental Rights Petition

708.36-1. The initial hearing on the petition to suspend or terminate parental rights shall be held

within forty-five (45) days after the petition is filed. At the hearing the Court shall determine

whether any party wishes to contest the petition and inform the parties of their rights.

708.36-2. If the petition is contested, the Court shall set a date for a fact-finding hearing to be held

within sixty (60) days after the hearing on the petition, unless the Court enters an order finding

good cause to go outside the time limits.

708.36-3. If the petition is not contested, the Court shall hear testimony in support of the

allegations in the petition and may proceed immediately with a dispositional hearing if the parties

agree. Before accepting an admission of the alleged facts in a petition, the Court shall:

(a) Address the parties present and determine that the admission is made voluntarily with

understanding of the nature of the acts alleged in the petition and the potential outcomes

and possible dispositions by the Court;

(b) Establish whether any promises or threats were made to elicit an admission; and

708.37. Fact Finding Hearing for a Suspension or Termination of Parental Rights

708.37-1. The fact-finding hearing is a hearing conducted by the Court to determine whether there

is clear and convincing evidence to establish that grounds exist for the suspension or termination

of parental rights.

708.37-2. 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.

708.37-3. If grounds for the suspension or termination of parental rights are found by the Court,

the Court shall find the parent(s) unfit. A finding of unfitness shall not prevent a dismissal of a

suspension or termination of parental rights petition. Unless the parties agree to proceed

immediately with the dispositional hearing and the Court accepts, the Court shall set a date for a

dispositional hearing no later 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.

708.38. Department’s Suspension or Termination of Parental Rights Report

708.38-1. In any case that the Department is a party, the Department shall submit a written report

to the Court prior to any dispositional hearing, with a copy to the parties by first-class mail no later

than seven (7) days prior to the hearing, which shall contain all of the following:

(a) The social history of the child and family, including any relevant medical conditions;

7 O.C. 708 – Page 39

(b) A statement of the facts supporting the need for suspension or termination of parental

rights;

statement of the steps the Department has taken to remedy the conditions responsible for

Court intervention and the parent's response to and cooperation with these services. If the

child has been removed from the home, the report shall also include a statement of the

reasons why the child cannot be returned safely to the family and the steps the Department

has taken to effect this return;

(d) A statement applying the standards and factors identified in sections 708.39-2 and

708.39-3 regarding the case before the Court; and

(e) If the report recommends that the parental rights of both of the child's parents or the

child's only living or known parent are to be suspended or terminated, the report shall

contain a statement of the likelihood that the child will be adopted. This statement shall

include a presentation of the factors that might prevent adoption, those that may facilitate

adoption, and the Department shall be responsible for accomplishing the adoption.

(1) If the Department determines that it is unlikely that the child will be adopted,

or if adoption would not be in the best interests of the child, the report shall include

a plan for placing the child in a permanent family setting. The plan shall include a

recommendation for the appointment of a guardian for the child.

708.38-2. The Court may order a report as specified under this section to be prepared by the

Department in those cases where the Department is not a party.

708.39. Standards and Factors

708.39-1. In making a decision about the appropriate disposition for suspension or termination of

parental rights, the Court shall consider the standards and factors enumerated in this section and

any report submitted by the Department.

708.39-2. The best interests of the child shall be the prevailing standard considered by the Court

in determining the disposition of all suspension and termination of parental rights proceedings.

708.39-3. In considering the best interests of the child the Court shall also consider, but not be

limited to, the following factors:

(a) The likelihood of the child's adoption after suspension or termination;

(b) Whether the child will be raised in an environment that is respectful of the child’s

race(s), culture(s), and heritage(s);

the time the child was removed from the home;

(d) Whether the child has substantial relationships with the parent or other family

members, and whether it would be harmful to the child to sever these relationships;

(e) The wishes of the child, if the child has the capacity to express their wishes;

(f) The duration of the separation of the parent from the child; and

(g) Whether the child will be able to enter into a more stable and permanent family

relationship as a result of the suspension or termination, taking into account the conditions

of the child's current placement, the likelihood of future placements and the results of prior

placements.

7 O.C. 708 – Page 40

708.40. Dispositional Hearings for Suspension or Termination of Parental Rights

708.40-1. Any party may present evidence relevant to the issue of disposition, including expert

testimony, and may make alternative dispositional recommendations to the Court. After receiving

any evidence related to the disposition, the Court shall enter a disposition and issue a written

decision consistent with the Oneida Judiciary Rules of Civil Procedure.

(a) The Court shall give the foster parent or other legal custodian a right to be heard at the

dispositional hearing by permitting the foster parent or other legal custodian to make a

written or oral statement during the dispositional hearing, or to submit a written statement

prior to disposition, relevant to the issue of disposition.

708.40-2. The Court shall enter one (1) of the following dispositions:

(a) The Court may dismiss the petition if it finds the evidence does not warrant the

suspension or termination of parental rights or if the Court finds that a parent is attempting

to voluntarily suspend or terminate their parental rights for the sole purpose of avoiding a

child support obligation; or

(b)The Court may enter an order suspending or terminating the parental rights of one or

both parents.

708.40-3. If the rights of both parents, or of the only living parent, are suspended or terminated

and if a guardian has not been appointed, the Court shall do one (1) of the following while adhering

to the placement preferences pursuant to section 708.11-1 when possible:

(a) Transfer guardianship and custody of the child pending adoptive placement to:

(1) A tribal or county department authorized to accept guardianship;

(2) A child welfare agency licensed to accept guardianship;

(3) The State of Wisconsin upon written confirmation from the State that they are

willing to accept guardianship;

(4) A relative with whom the child resides, if the relative has filed a petition to

adopt the child or if the relative is a kinship care relative or is receiving payments

for providing care and maintenance for the child; or

(5) An individual who has been appointed guardian of the child by a court of a

competent jurisdiction; or

(b) Appoint a guardian and transfer guardianship and custody of the child to the guardian.

708.40-4. The written Court order shall include the following:

(a) If the Court dismisses the petition, the order shall contain the reasons for dismissal; or

(b) If the disposition is for the suspension or termination of parental rights, the order shall

contain all of the following:

(1) The identity of any agency, department, or individual that has received

guardianship of the child;

(2) If an agency or department receives guardianship and custody of the child, an

order ordering the child into the placement and care responsibility of the agency or

department and assigning the agency or department primary responsibility for

providing services to the child; and

(3) A finding that the suspension or termination of parental rights is in the best

interests of the child.

contain all of the following:

(1) A termination of the right of the parent to have contact with the minor child

including contact in person, by mail, by telephone, or through third parties;

7 O.C. 708 – Page 41

(2) Order restraining a parent from contacting the minor child, the child’s foster

parent, the child’s adoptive parent and/or the social services agency or agencies

possessing information regarding the child;

(3) Order that the biological parents’ obligation to pay child support, except for

arrearages, is hereby terminated; and

(4) Order that any prior court order for custody, visitation, or contact, with the

minor child is hereby terminated.

708.40-5. The Court shall provide a copy of the order suspending or terminating parental rights

to the child's parent, guardian, and legal custodian; the other parties to the action; and the current

or future foster parents for the purpose of pursuing adoption.

708.40-6. If an order is entered involuntarily suspending or terminating parental rights, the Court

shall orally inform the parent(s) who appear in Court or place in the written order the ground for

suspension or termination of their parental rights specified in section 708.34-1(l), which provides

that a prior involuntary suspension or termination of parental rights, under certain circumstances,

is a ground for the suspension or termination of parental rights for another child.

708.40-7. If the Court suspends or terminates parental rights, the Department, or the Court if the

Department is not a party to the action, may forward the following information to the State of

Wisconsin:

(a) The name, date of birth, and tribal affiliation of the child whose birth parent's rights

have been suspended or terminated;

(b) The names and current addresses of the child's birth parents, guardian and legal

custodian; and

708.40-8. If only one (1) parent consents to a voluntary suspension or termination of parental

rights or if the grounds for involuntary suspension or termination of parental rights are found to

exist as to only one (1) parent, the rights of only that parent may be suspended or terminated

without affecting the rights of the other parent if the Court finds such suspension or termination to

be in the best interest of the child.

708.41. Adoption

708.41-1. Adoptions under this law shall take the form of customary adoptions when the Court has

granted a petition to suspend parental rights. When the Court grants a petition to terminate parental

rights the adoption shall be closed.

708.41-2. Customary Adoptions. The purpose of customary adoption is not to permanently deprive

the adopted child of connections to, or knowledge of, the adopted child’s biological family, but to

provide the adopted child a permanent home. The following shall apply to all customary adoptions

and shall be contained in all adoptive orders and decrees:

(a) The relationship between an adoptive parent and adopted child shall have all the same

rights, responsibilities, and other legal consequences as the relationship between a

biological child and parent;

(b) The adopted child shall have an absolute right, absent a convincing and compelling

reason to the contrary, to information and knowledge about his or her biological family and

his or her Oneida heritage, if applicable. The adopted child may obtain adoption

information from files maintained by the Court or Department;

the same manner as any other biological child. The biological parents shall not be entitled

7 O.C. 708 – Page 42

to inherit from an adopted child in the same manner as parents would otherwise be entitled

to inherit. An adopted child shall be entitled to inherit from adoptive parents, and vice

versa, in the same manner as if biological parents and child;

(d) Although parental rights have been suspended, the biological parent may retain certain

residual parental rights when appropriate as determined by agreement between the adoptive

parent and biological parent made through peacemaking, or by order of the Court. Such

residual parental rights may include:

(1) The right to communication;

(2) The right to visitation;

(3) The right or obligation to contribute to support or education;

(4) The right to be consulted regarding the adopted child’s religious affiliation,

major medical treatment, marriage, or other matters of major importance in the

child’s life; and/or

(5) Such other residual rights the Court may deem appropriate, considering the

circumstances.

(e) Adoption does not extinguish the relationships between the adopted child and the

adopted child’s extended biological family. The adopted child’s extended biological family

retains the right to reasonable communication and visitation with the adopted child, subject

to reasonable controls of the adoptive parents.

708.41-3. Closed Adoptions. Closed adoptions occur in situations where an adopted child needs a

permanent home and it is necessary to sever all ties between the adopted child and his or her

biological family. The following shall apply to all closed adoptions:

(a) The relationship between an adoptive parent and adopted child shall have all the same

rights, responsibilities, and other legal consequences as the relationship between a

biological child and parent;

(b) The relationship between the adopted child and all persons whose relationship to the

adopted child is derived through the biological parents shall be completely altered and all

the rights, duties, and other legal consequences of those relationships shall cease to exist;

information regarding said child;

(d) The adopted child shall be entitled to information and knowledge regarding his or her

culture and heritage; and

(e) The adopted child shall be entitled to information regarding his or her biological family

upon reaching the age of majority. The adopted child may obtain adoption information

from files maintained by the Court or Department.

708.42. Adoption Criteria and Eligibility

708.42-1. Criteria for Adoption. Any child who is subject to this law may be adopted if any of the

following criteria are met:

(a) Both of the child's parents are deceased;

(b) The parental rights of both of the child's parents with respect to the child have been

suspended or terminated;

suspended or terminated and the child's other parent is deceased; or

(d) The person filing the petition for adoption is the spouse of the child's parent and either

of the following applies:

7 O.C. 708 – Page 43

(1) The child's other parent is deceased; or

(2) The parental rights of the child's other parent with respect to the child have been

suspended or terminated.

708.42-2. Eligibility. The following persons are eligible to adopt a child who falls under the

jurisdiction of this law pending the successful clearing of a background check:

(a) A married adult couple;

(b) Either spouse if the other spouse is a parent of the child; or

708.42-3. If the person proposing to adopt the child cannot successfully clear a background check,

and any convictions the person may possess have not been pardoned, forgiven, reversed, set aside

or vacated, the Court may still deem the person eligible to adopt if the Court determines by clear

and convincing evidence that the adoption would be in the best interests of the child.

708.43. Adoption Procedure

708.43-1. Petition for Adoption. A person proposing to adopt, or the Department, shall initiate a

proceeding for the adoption of a child by filing a petition with the Court. The petition shall include

the following information:

(a) The name, birth date, address, and tribal affiliation of the petitioner;

(b) The name, birth date, address, and tribal affiliation of the child;

(d) The name by which the child shall be known if the petition is granted;

(e) The relationship of the petitioner to the child; and

(f) A copy of the order suspending or terminating parental rights of the child’s biological

parent(s).

708.43-2. Upon the filing of a petition for adoption, the Court shall schedule a hearing within

sixty (60) days.

708.43-3. When a petition for adoption is filed, the Court shall order an investigation to determine

whether the child is a proper subject for adoption and whether the petitioner's home is suitable for

the child.

(a) The Court shall order one (1) of the following to conduct the investigation:

(1) If the Department, or another agency or department, has guardianship of the

child, the agency or department that has guardianship; or

(2) If no agency or department has guardianship of the child and a relative,

including a stepparent, has filed the petition for adoption, the Department.

(b) If the Court orders the Department to conduct the investigation, the Department may

contract with a third-party agency to conduct the investigation.

708.43-4. The Department or other agency or department making the investigation shall file its

report with the Court prior to the hearing on the petition and shall provide a copy of the report to

the parties by first-class mail at least seven (7) days prior to the hearing.

708.43-5. If the report of the investigation is unfavorable or if it discloses a situation which, in the

opinion of the Court, raises a serious question as to the suitability of the proposed adoption, the

Court may appoint a guardian ad litem for the child whose adoption is proposed.

708.43-6. During the hearing the parties may agree to attend peacemaking to establish an

agreement regarding residual rights of a birth parent, birth sibling, or other birth relative of the

child.

7 O.C. 708 – Page 44

708.43-7. If after the hearing and a study of the report required by section 708.43-3 the Court is

satisfied that the adoption is in the best interests of the child, the Court shall make an order granting

the adoption. The order may change the name of the child to that requested by petitioners.

708.43-8. After the order of adoption is entered the relation of parent and child and all the rights,

duties and other legal consequences of the natural relation of child and parent thereafter exists

between the adopted child and the adoptive parents. The relationship between the adopted child

and biological parents shall be completely altered and all the rights, duties, and other legal

consequences of those relationships shall cease to exist, excluding any residual rights granted to

the biological parents and extended family through customary adoption. If the biological parent

is the spouse of the adoptive parent, the relationship shall be completely altered and those rights,

duties, and other legal consequences shall cease to exist only with respect to the biological parent

who is not the spouse of the adoptive parent.

708.43-9. Within five (5) days after entry of the order granting a closed adoption, the Department

shall mail a copy of the order to the State of Wisconsin Bureau of Vital Statistics and furnish any

additional data needed for the issuance of a new birth certificate.

708.44. Non-Compliance with a Residual Rights Agreement

708.44-1. Any party to a residual rights agreement or the child who is the subject of the

proceedings may petition the Court that approved the agreement to compel any person who is

bound by the agreement to comply with the agreement. The petition shall allege facts sufficient to

show that a person who is bound by the agreement is not in compliance with the agreement and

that the petitioner, before filing the petition, attempted in good faith to resolve the dispute giving

rise to the filing of the petition. The petition may also allege facts showing that the noncompliance

with the agreement is not in the best interests of the child.

708.44-2. After receiving a petition for action regarding a residual rights contact agreement the

Court shall set a date and time for a hearing on the petition and shall provide notice of the hearing

to all parties to the agreement and may reappoint a guardian ad litem for the child.

708.44-3. If the Court finds, after hearing, that any person bound by the agreement is not in

compliance with the agreement and that the petitioner, before filing the petition, attempted in good

faith to resolve the dispute giving rise to the filing of the petition, the Court shall issue an order

requiring the person to comply with the agreement and may find a party in contempt.

708.44-4. The Court may not revoke a suspension or termination of parental rights order or an

order of customary adoption because an adoptive parent or other custodian of the child or a birth

parent, birth sibling, or other birth relative of the child fails to comply with a residual rights

agreement; however, the parties may return to peacemaking to revise the agreement, or the Court

may amend an order if it finds an amendment to the order is in the best interests of the child.

708.45. Peacemaking and Mediation

708.45-1. The Court may refer the parties to peacemaking or mediation if the parties agree to

attend peacemaking or mediation. The Court shall not refer the parties to peacemaking or

mediation if attending the session will cause undue hardship or would endanger the health or safety

of a party.

708.45-2. When the parties attend peacemaking or mediation based on a referral from the Court,

the Court shall enter an order finding good cause to suspend the time limits established under this

law.

7 O.C. 708 – Page 45

708.46. Appeals

708.46-1. Appeals of all orders issued under this law shall be heard by the Nation’s Court of

Appeals in accordance with the Rules of Appellate Procedure.

708.47. Liability

708.47-1. No liability shall attach to the Department, Indian Child Welfare Worker, the Nation’s

Child Welfare Attorney or any person acting under their authority for statements, acts or omissions

made in good faith while in the course of activities taken under this law.

End.

Adopted – BC-07-26-17-J

Amended – BC-09-14-22-A

7 O.C. 708 – Page 46

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.