Oneida Business Committee (2022)
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
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ONEIDA
LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA
Business Committee Conference Room - 2nd Floor Norbert Hill Center
May 18, 2022
9:00 a.m.
I.
Call to Order and Approval of the Agenda
II.
Minutes to be Approved
1. May 4, 2022 LOC Meeting Minutes (pg. 2)
III.
Current Business
1. Children’s Code Amendments (pg. 4)
2. Healing to Wellness Court Law (pg. 116)
IV.
New Submissions
1. Oneida Language Code (pg. 130)
V.
Additions
VI.
Administrative Updates
VII.
Executive Session
VIII. Recess/Adjourn
A good mind. A good heart. A strong fire.
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Oneida Nation
Oneida Business Committee
Legislative Operating Committee
PO Box 365 • Oneida, WI 54155-0365
Oneida-nsn.gov
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ONEIDA
LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES
Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center
May 4, 2022
9:00 a.m.
Present: David P. Jordan, Jennifer Webster, Marie Summers, Daniel Guzman King
Excused: Kirby Metoxen
Others Present: Clorissa N. Santiago, Brooke Doxtator, Lawrence Barton, Eric Boulanger
(Microsoft Teams), Amy Spears (Microsoft Teams), Rhiannon Metoxen (Microsoft Teams), Kristal
Hill (Microsoft Teams), Nic Reynolds (Microsoft Teams), Todd Vandenheuvel (Microsoft Teams),
Matthew Denny (Microsoft Teams), Michelle Braaten (Microsoft Teams), Reynold Danforth
(Microsoft Teams)
I.
Call to Order and Approval of the Agenda
David P. Jordan called the May 4, 2022, Legislative Operating Committee meeting to order
at 9:00 a.m.
Motion by Marie Summers to adopt the agenda; seconded by Daniel Guzman King. Motion
carried unanimously.
II.
Minutes to be Approved
1. April 20, 2022 LOC Meeting Minutes
Motion by Marie Summers to approve the April 20, 2022, LOC meeting minutes and
forward to the Business Committee; seconded by Jennifer Webster. Motion carried
unanimously.
III.
Current Business
1. Budget Management and Control Law Amendments
Motion by Jennifer Webster to a approve the Budget Management and Control law
amendments adoption packet and forward to the Oneida Business Committee for
consideration; seconded by Daniel Guzman King. Motion carried unanimously.
2. Oneida Nation Gaming Ordinance Amendments
Motion by Jennifer Webster to approve the Oneida Nation Gaming Ordinance amendments
adoption packet and forward to the Oneida Business Committee for consideration;
seconded by Daniel Guzman King. Motion carried unanimously.
3. Oneida Personnel Policies and Procedures Emergency Amendments
Motion by Marie Summers to approve the Oneida Personnel Policies and Procedures
emergency amendments adoption packet and forward
to the Oneida Business Committee
A good mind.
A good heart. A strong fire.
Legislative Operating Committee Meeting Minutes of May 4, 2022
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ONEIDA
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for consideration; seconded by Daniel Guzman King. Motion carried unanimously.
4. Children’s Code Amendments
Motion by Jennifer Webster to approve the updated draft and the legislative analysis for
Children’s Code amendments; seconded by Daniel Guzman King. Motion carried
unanimously.
IV.
New Submissions
V.
Additions
VI.
Administrative Items
1. E-Poll Results: Approval of the ONGO Amendments Updated Public Comment
Review Memo, Draft, Legislative Analysis and FIS Request
Motion by Marie Summers to enter into the record the results of the April 20, 2022, e-poll
titled, Approval of the ONGO Amendments Updated Public Comment Review Memo,
Draft, Legislative Analysis and FIS Request; seconded by Jennifer Webster. Motion carried
unanimously.
2. Legislative Operating Committee FY22 Second Quarter Report
Motion by Marie Summers to approve the Legislative Operating Committee FY22 Second
Quarter Report and forward to the Oneida Business Committee; seconded by Daniel
Guzman King. Motion carried unanimously.
3. Legislative Operating Committee 2022 Semi-Annual Report
Motion by Marie Summers to approve the Legislative Operating Committee 2022 SemiAnnual Report and forward to the Secretary; seconded by Jennifer Webster. Motion carried
unanimously.
4. Legislative Reference Office 2022 Semi-Annual Report
Motion by Jennifer Webster to approve the Legislative Reference Office 2022 SemiAnnual Report and forward to the Secretary; seconded by Marie Summers. Motion carried
unanimously.
VII.
Executive Session
VIII. Adjourn
Motion by Marie Summers to adjourn at 9:35 a.m.; seconded by Daniel Guzman King.
Motion carried unanimously.
Legislative Operating Committee Meeting Minutes of May 4, 2022
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Oneida Nation
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Oneida Business Committee
Legislative Operating Committee
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PO Box 365 • Oneida, WI 54155-0365
ONEIDA
Oneida-nsn.gov
Legislative Operating Committee
May 18, 2022
Children’s Code Amendments
Submission Date: 10/7/20
LOC Sponsor: David P. Jordan
Public Meeting: N/A
Emergency Enacted: N/A
Summary: This item was carried over from last term. On August 25, 2020, the Oneida Law Office
and Indian Child Welfare Department requested that emergency amendments be made to the Children’s
Code to address customary adoption. The departments were seeking that customary adoption be changed
to a suspension of rights rather than a termination of rights in order to allow for the adopting family to be
eligible for Adoption Assistance with the State. On August 28, 2020, the LOC considered this request and
determined that it did not meet the standard for emergency amendments provided by the Legislative
Procedures Act, but that the LOC would add this item to the AFL for amendments to be made via the
normal legislative process.
10/7/20 LOC: Motion by Kirby Metoxen to add the Children’s Code Amendments to the Active Files List
with David Jordan as the sponsor; seconded by Jennifer Webster. Motion carried
unanimously.
10/13/20:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers,
Daniel Guzman King, Clorissa N. Santiago, Tina Jorgenson, Jennifer Berg-Hargrove, Heather
Lee. Alebra Cornelius, Peggy Schneider, Rhiannon Metoxen, Kristal Hill. This work meeting
was held over Microsoft Teams. On July 22, 2020, the OBC was asked to consider amending
resolution BC-07-26-17-J to permanently adopt the policy set forth by the March 20, 2020,
COVID-19 Core Decision Making Team’s “Suspension of Transfer of Cases in Resolution#
BC-07-26-17-J, Adoption of the Children's Code and the Nation's Indian Child Welfare Act
Policy” declaration. The OBC adopted a motion to accept the request as information and send
to the LOC for processing. The purpose of this work meeting was to allow the ICW
Department and Law Office an opportunity to provide the LOC with more information on
why this change should be made on a permanent basis beyond the Public Health State of
Emergency. The LOC decided to pursue this change, and directed the LRO Attorney to draft
a resolution which amends the policy on the transfer of cases.
3/3/21 LOC:
Motion by Jennifer Webster to deny the request for emergency amendments due to the fact
that it does not meet the standard for emergency legislation provided by the Legislative
Procedures Act which is that it is necessary for the immediate preservation of the public health,
safety, and general welfare of the Reservation population, and move this item from a medium
priority to a high priority with direction that this be worked on as expeditiously as possible;
seconded by Daniel Guzman King. Motion carried unanimously.
4/12/21:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers,
Daniel Guzman King, Clorissa N. Santiago, Hon. Robert Collins, Kristina Denny, Patricia
DeGrand, Rhiannon Metoxen. This work meeting was held over Microsoft Teams. The
purpose of this work meeting was for the Family Court to provide a “Children’s Code 101”
and then for the workgroup to begin reviewing the Children’s Code line-by-line and discussing
potential amendments to the law.
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A good mind. A good heart. A strong fire.
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4/12/21:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers,
Daniel Guzman King, Clorissa N. Santiago, Jennifer Berg-Hargrove, Alebra Cornelius,
Heather Lee, Michael Hoeft, Peggy Schneider, Lydia Witte, Kristal Hill, Rhiannon Metoxen.
This work meeting was held over Microsoft Teams. The purpose of this work meeting was for
the Indian Child Welfare (ICW) Department to provide a “Children’s Code 101” and then for
the workgroup to begin reviewing the Children’s Code line-by-line and discussing potential
amendments to the law.
4/26/21:
Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Marie Summers,
Daniel Guzman King, Clorissa N. Santiago, Hon. Robert Collins, Hon. Marcus Zielinski,
Kristina Denny, Patricia DeGrand, Rhiannon Metoxen, Kristal Hill. This work meeting was
held over Microsoft Teams. The purpose of this work meeting was for the workgroup to
continue reviewing the Children’s Code line-by-line and discussing potential amendments to
the law.
6/4/21:
Work Meeting. Present: Clorissa N. Santiago, Jennifer Berg-Hargrove, Alebra Cornelius,
Heather Lee, Michael Hoeft, Peggy Schneider, Lydia Witte, Kristal Hill. This work meeting
was held over Microsoft Teams. The purpose of this work meeting was to review and discuss
potential amendments to the law.
2/16/22:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Kirby Metoxen, Daniel Guzman
King, Marie Summers, Clorissa N. Santiago, Lydia Witte. This was a work meeting held
through Microsoft Teams. The purpose of this work meeting was to allow Attorney Lydia
Witte to introduce herself to the LOC and provide some background on the amendments the
ICW Department is requesting.
4/12/22:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Marie
Summers, Clorissa N. Santiago, Carmen Vanlanen, Lydia Witte, Peggy Van Gheem, Jennifer
Berg-Hargrove, Heather Lee, Alebra Metoxen, Michael Hoeft, Hon. Robert Collins II, Hon.
Rodney Dequaine, Kristal Hill, Rhiannon Metoxen. This was a work meeting held through
Microsoft Teams. The purpose of this work meeting was to review the initial draft of proposed
amendments to the Children’s Code.
4/20/22 LOC: Motion by Marie Summers to approve the draft of the Children’s Code amendments and direct
that a legislative analysis be developed; seconded by Jennifer Webster. Motion carried
unanimously.
5/4/22 LOC:
Motion by Jennifer Webster to approve the updated draft and the legislative analysis for
Children’s Code amendments; seconded by Daniel Guzman King. Motion carried
unanimously.
5/12/22:
Work Meeting. Present: David P. Jordan, Jennifer Webster, Daniel Guzman King, Marie
Summers, Kirby Metoxen, Clorissa N. Santiago, Kristal Hill, Rhiannon Metoxen. This was a
work meeting held through Microsoft Teams. The purpose of this work meeting was to review
the public meeting notice for the Children’s Code amendments.
Next Steps:
Approve the public meeting packet and forward the Children’s Code amendments to a public
meeting to be held on June 15, 2022.
A good mind. A good heart. A strong fire.
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ONEIDA
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ONEIDA NATION PUBLIC MEETING NOTICE
WEDNESDAY, JUNE 15, 2022, 12:15 pm
Find Public Meeting Materials at
Oneida-nsn.gov/government/register/public meetings
Send Public Comments to
Norbert Hill Center-Business Committee Conference Room
N7210 Seminary Rd., Oneida, Wisconsin
LOC@oneidanation.org
Ask Questions here
LOC@oneidanation.org
920-869-4417
CHILDREN’S CODE AMENDMENTS
The purpose of the Children’s Code 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.
The amendments to the Children’s Code will:
Provide that any orders made by the Family Court under this law, or any orders made by a court of
competent jurisdiction regarding child welfare matters, shall supersede any other Court order regarding
custody or placement of a child until the Children’s Code or other child welfare orders are dismissed;
Update the general notice provisions in the Children’s Code to provide greater clarification on providing notice in child welfare matters;
Allow the ICW Department to 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, but allow for a parent, guardian, or legal
custodian to request judicial review of the decision to withhold the identifying information;
Allow the ICW Department to 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;
Allow a child to be held in custody in a hospital or other medical or mental health facility;
Allow the ICW Department to request the placement of the child outside of the child’s home at the
plea hearing;
Allow for the suspension of parental rights in addition to the termination of parental rights;
Clarify that an adoption under this law shall take the form of customary adoption when the Court has
granted a petition to suspend parental rights, and take the form of a closed adoption when the Court
has granted a petition to terminate parental rights; and
Make other drafting revisions throughout the Children’s Code.
Individuals may attend the public meeting for the proposed amendments to the Children’s
Code in person at the Norbert Hill Center, or virtually through Microsoft Teams. If you wish
to attend the public meeting through Microsoft Teams please contact LOC@oneidanation.org
PUBLIC COMMENT PERIOD CLOSES WEDNESDAY, JUNE 22, 2022
During the public comment period, anyone may submit written comments, questions or input. Comments may be submitted to the Oneida
Nation Secretary’s Office or the Legislative Reference Office in person,
by U.S. mail, interoffice mail, or e-mail.
ft
For more information on the proposed amendments to the Children’s Code please review the public meeting
packet at oneida-nsn.gov/government/register/public meetings.
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CHILDREN’S CODE AMENDMENTS
LEGISLATIVE ANALYSIS
SECTION 1. EXECUTIVE SUMMARY
Intent of the
Proposed Amendments
Analysis by the Legislative Reference Office
Provide that 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 [7 O.C. 708.5-6];
Provide that the Department may enter into a protective plan with a family
[7 O.C. 708.7-1(f)];
Update the general notice provisions in the Children’s Code, as well as
notice provisions throughout the Children’s Code to provide greater
clarification on providing notice in child welfare matters [7 O.C. 708.12];
Allow the Department to 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, but that a parent, guardian,
or legal custodian may request judicial review of the decision to withhold
the identifying information [7 O.C. 708.12-4];
Provide clarification on how a matter is referred to the Oneida Nation
Child Support Agency for initiating a paternity action, and allow 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 [7 O.C. 708.13-3];
Allow the Department to 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 [7 O.C. 708.14-6];
Allow a child to be held in custody in a hospital or other medical or mental
health facility [7 O.C. 708.15-6(f)];
Provide information that may be, but is not required to be, included in the
Court’s order to hold a child in custody [7 O.C. 7008.16-6(b)];
Allow the Department to request the placement of the child outside of the
child’s home at the plea hearing [7 O.C. 708.19-5];
Allow for the suspension of parental rights in addition to the termination
of parental rights [7 O.C. 708.32];
Update the continuing need of protection or services ground for
involuntary suspension or termination of parental rights to be consistent
with recent revisions to State statute [7 O.C. 708.34-1(c)];
Provide information that may be, but is not required to be, included in the
Court’s order of disposition for the suspension or termination of parental
rights [7 O.C. 708.40-4(c)];
Clarify that an adoption under this law shall take the form of customary
adoption when the Court has granted a petition to suspend parental rights,
and take the form of a closed adoption when the Court has granted a
petition to terminate parental rights [7 O.C. 708.41-1];
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Allow the Department to contract with a third-party agency to conduct an
adoption investigation that may have been ordered by the Court[7 O.C.
708.43-3(b)]; and
Make other minor drafting revisions throughout the Children’s Code.
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. [7 O.C. 708.1-1].
Indian Child Welfare Department (“the Department”), Oneida Family Court
(“the Court”), Oneida Law Office
Oneida Judiciary Rules of Civil Procedure, Oneida Judiciary Rules of
Evidence, Family Court law, Paternity law, Child Support law
A public comment period has not yet been held.
A fiscal impact statement has not yet been requested.
Purpose
Affected Entities
Related Legislation
Public Meeting
Fiscal Impact
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SECTION 2. LEGISLATIVE DEVELOPMENT
A. Background. The Children’s Code was adopted by the Oneida Business Committee on July 26, 2017,
through the adoption of resolution BC-07-26-17-J for the purpose of providing 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, the Children’s Code 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. [7 O.C. 708.11]. 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.
[7 O.C. 708.1-2].
B. Request for Amendments. On August 25, 2020, the Oneida Law Office and Indian Child Welfare
Department requested that emergency amendments be made to the Children’s Code to address
customary adoption. The departments were seeking amendments to the Children’s Code regarding
customary adoption be changed to allow for a suspension of rights rather than a termination of rights
to allow for the adopting family to be eligible for Adoption Assistance with the State. On August 28,
2020, the LOC considered this request and determined that it did not meet the standard for emergency
amendments provided by the Legislative Procedures Act, but that the LOC would add this item to the
AFL for amendments to be made via the normal legislative process. The Legislative Operating
Committee added the Children’s Code amendments to its Active Files List on October 7, 2020.
C. The Legislative Operating Committee is now seeking amendments to the Children’s Code.
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SECTION 3. CONSULTATION AND OUTREACH
A. Representatives from the following departments or entities participated in the development of the
amendments to the Children’s Code and this legislative analysis:
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Oneida Law Office;
Indian Child Welfare Department; and
Oneida Family Court.
B. The following laws were reviewed in the drafting of this analysis:
Oneida Judiciary Rules of Civil Procedure;
Family Court Law;
Paternity law; and
Child Support law.
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SECTION 4. PROCESS
A. The development of the proposed amendments to the Children’s Code complies with the process set
forth in the Legislative Procedures Act (LPA).
On October 7, 2020, the Legislative Operating Committee added the Law to its Active Files
List.
On April 20, 2022, the Legislative Operating Committee approved the draft of the proposed
amendments to the Children’s Code and directed that a legislative analysis be developed.
On May 4, 2022, the Legislative Operating Committee approved the updated draft and the
legislative analysis for Children’s Code amendments.
B. At the time this legislative analysis was developed the following work meetings had been held
regarding the development of this Law:
October 13, 2020: LOC work session with the Indian Child Welfare Department and Oneida
Law Office.
April 12, 2021: LOC work session with the Oneida Family Court.
April 12, 2021: LOC work session with the Indian Child Welfare Department and Oneida Law
Office.
April 26, 2021: LOC work session with the Oneida Family Court.
June 4, 2021: Work session with the Indian Child Welfare Department and the Oneida Law
Office.
February 16, 2022: LOC work session with Oneida Law Office.
April 12, 2022: LOC work session with the Indian Child Welfare Department, Oneida Law
Office, and the Oneida Family Court.
May 12, 2022: LOC work session.
SECTION 5. CONTENTS OF THE LEGISLATION
A. Hierarchy of Child Welfare Court Orders. A new provision added to the Children’s Code through
these amendments provides that 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. [7 O.C. 708.5-6].
Effect. The overall purpose of this provision is to provide clarification that 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
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welfare orders are dismissed. This clarification was added to prevent an individual from seeking a
custody or placement order for a child in this Court or a court of competent jurisdiction in an attempt
to trump a child welfare order.
B. Protective Plans. The Children’s Code provides the various duties and responsibilities of the Indian
Child Welfare Worker. [7 O.C. 708.7-1]. The Children’s Code provides that an Indian Child Welfare
worker may enter into informal dispositions with families. [7 O.C. 708.7-1(f)]. The proposed
amendments to the Children’s Code revise the responsibilities and duties of the Indian Child Welfare
work to include that they also may enter into a protective plan with a family. Id. Definitions for both
informal dispositions and protective plans were then added to the Children’s Code. Informal disposition
is defined in the Children’s Code as 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. [7 O.C. 708.3-1(bb)]. 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. Id. Protective plan is defined as 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.
[7 O.C. 708.3-1(nn)].
Effect. The proposed amendments to the Children’s Code provide greater clarification as to the
duties and responsibilities of the Indian Child Welfare workers.
C. General Notice Provisions. The proposed amendments to the Children’s Code update the general
notice provisions in the Children’s Code. The proposed amendments to the Children’s Code provide
that service of documents and notices shall be as specified in this law, and if a method of service is not
specified in this law then service shall be by first-class mail to the recently verified last-known address
of the party. [7 O.C. 708.12-1]. 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. Id.
The proposed amendments provide that 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, except in situations 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. 708.12-2]. Additionally, the proposed amendments provide that 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, and
in the alternative, personal service may be accomplished according to the Oneida Judiciary Rules of
Civil Procedure. The proposed amendments also include a new provision which provides that 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, but that a parent,
guardian, or legal custodian may request judicial review of the decision to withhold the identifying
information. [7 O.C. 708.12-4]. Previously the Children’s Code provided general provisions on the
notice of petitions, and provided that petitions alleging that a child is in need of protection or services
may be given to the parties directly by the Nation’s Child Welfare attorney or the Indian Child Welfare
Worker or served on the parties pursuant to the Oneida Judiciary Rules of Civil Procedure. While
petitions for termination of parental rights, guardianship, and adoption shall be served on all other
parties pursuant to the Oneida Judiciary Rules of Civil Procedure. The Children’s previously provided
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that all parties shall be notified of all subsequent hearings under this law by first-class mail to the
recently verified last-known address of the party.
Effect. Updates were made to the general notice provisions in the Children’s Code to provide
greater clarification on how notice is provided to the parties involved in child welfare matters. The
prior simple reference to following the Oneida Judiciary Rules of Civil Procedure did not provide
the Indian Child Welfare Department and the Oneida Law Office the guidance they needed in how
notice should occur, because the Oneida Judiciary Rules of Civil Procedures did not address the
notice of particular documents or processes contained in the Children’s Code. The new provisions
provide the necessary clarification to guide notice practices under the Children’s Code.
D. Notice Provisions Throughout the Law. In addition to the general notice provisions that have been
amended in section 708.12, notice provisions have been clarified and updated throughout the Children’s
Code including:
Section 708.16-3. The proposed amendments to the Children’s Code remove a provision
which states that prior to the start of a hearing for emergency custody, the Court shall
provide a copy of the petition to the parent, guardian, and legal custodian, if present, and
to the child if he or she is twelve (12) years of age or older. Instead, the proposed
amendments now provide that for any parties not present at the hearing, the Department
shall serve the petition on those parties by verified mail, return receipt requested.
Section 708.17-1. The proposed amendments to the Children’s Code provide that upon
filing with the Court, the Department shall provide a copy of the petition for a child in need
of protection or services to the parties by personal service or, if personal service is not
possible, by certified mail with return receipt requested.
Section 708.17-4. The proposed amendments to the Children’s Code provide that 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. Previously, this section of the
Children’s Code provided that an amended petition may be given to the parties directly by
the Nation’s Child Welfare attorney or the Indian Child Welfare Worker or served on the
parties pursuant to the Oneida Judiciary Rules of Civil Procedure.
Section 708.21-1. The Children’s Code provides that before the dispositional hearing, the
Department shall submit a written report to the Court, with a copy provided to the parties
at least seven (7) days prior to the hearing. The proposed amendments to the Children’s
Code clarify that the copy of the written report shall be provided to the parties by first-class
mail.
Section 708.23-3. The proposed amendments to the Children’s Code provide that at least
seven (7) days before the date of the permanency plan hearing, the Department shall file
the updated permanency plan with the Court and provide a copy to the parties by first-class
mail. Previously, this section of the Children’s Code required that at least five (5) business
days before the date of the hearing the Department shall provide a copy of the updated
permanency plan to the Court and the parties.
Section 708.24-4. The proposed amendments to the Children’s Code provide that 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. Previously, this section of the Children’s Code
provided that written notice of the proposed change in placement shall be sent to all of the
parties pursuant to the Oneida Judiciary Rules of Civil Procedure.
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Section 708.24-6. The proposed amendments to the Children’s Code provide that 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. Previously, this section
of the Children’s Code provided that notice of the emergency change in placement shall be
sent to the parties as soon as possible but no later than seventy-two (72) hours after the
emergency change in placement excluding Saturdays, Sundays, and holidays.
Section 708.25-4. The proposed amendments to the Children’s Code provide that upon
filing a request for trial reunification 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.
Previously, this section of the Children’s Code provided that Department or Nation’s Child
Welfare attorney shall provide the parent, guardian, legal custodian, and any other party
written notice pursuant to the Oneida Judiciary Rules of Civil Procedure.
Section 708.24-7. The proposed amendments to the Children’s Code provide that no later
than seven (7) days prior to the expiration of the trial reunification, the Department shall
submit the request for an extension of the trial reunification to the Court and shall cause
notice of the request to be provided to all parties by first-class mail. Previously, this section
of the Children’s Code provided that no later than ten (10) days 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.
Section 708.25-8. The proposed amendments to the Children’s Code clarify that the
Department is required to provide written notice of the end of a trial reunification period
to the parties by first-class mail.
Section 708.25-9(a)(1). The proposed amendments to the Children’s Code clarify that the
Department’s request for revocation of the trial reunification is required to be provided by
first-class mail.
Section 708.26-2. The proposed amendments to the Children’s Code clarify that the
Department’s request for a revision of the dispositional order is required to be provided to
the parties by first-class mail. Previously, this section of the Children’s Code provided that
notice be provided to the parties pursuant to the Oneida Judiciary Rules of Civil Procedure.
Section 708.27-1. The proposed amendments to the Children’s Code clarify that the
Department’s request for an extension of the dispositional order is required to be provided
to the parties by first-class mail. Previously, this section of the Children’s Code provided
that notice be provided to the parties pursuant to the Oneida Judiciary Rules of Civil
Procedure.
Section 708.29.4. The proposed amendments to the Children’s Code provide that 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.
Section 708.29-8(a). The proposed amendments to the Children’s Code provide that upon
filing with the Court and at least seven (7) days prior to the fact-finding 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. Previously, this section of the
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Children’s Code provided that the Department shall file its report with the Court prior to
the fact-finding hearing and shall provide the parties with a copy of the report at least three
(3) business days prior to the hearing.
Section 708.30-2. The proposed amendments to the Children’s Code provide that the
motion for a revision of guardianship shall be filed with the Court and, upon filing, a written
copy shall be provided to all parties by first-class mail. Previously, the notice of revision
was required to be filed with the Court with notice provided to the parties pursuant to the
Oneida Judiciary Rules of Civil Procedure. Additionally, the proposed amendments to
subsection (a) of 708.30-2 provide that 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 their report by first-class mail. Previously, subsection (a) provided that the
department shall file its report with the Court prior to the hearing on the revision of
guardianship and shall provide the parties with a copy of the report at least three (3)
business days prior to the hearing.
Section 708.31-2(a). The proposed amendments to the Children’s Code provide that 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 for the termination
of a guardianship by first class mail. Previously, the Children’s Code provided that the
Department shall file its report with the Court prior to the hearing on the termination of
guardianship and shall provide the parties with a copy of the report at least three (3)
business days prior to the hearing.
Section 708.35-5. The proposed amendments to the Children’s Code provide that 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: The parent(s)
of the child, including an alleged father if paternity has not been established; and The
child’s foster parent, guardian or legal custodian, if applicable. Previously, the Children’s
Code provided that the petitioner shall ensure the summons and petition are served upon
the following persons pursuant to the Oneida Judiciary Rules of Civil Procedure: The
parent(s) of the child, including an alleged father if paternity has not been established; The
child’s foster parent, guardian or legal custodian, if applicable; and The Nation’s Child
Welfare attorney and the Department, if the petition is filed by anyone other than the
Nation’s Child Welfare attorney or the Department.
Section 708.43-4. The proposed amendments to the Children’s Code provide that the
Department or other agency or department making the adoption 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.
Previously, this section of the Law provided that 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 the parties with a copy of the report at least three (3)
business days prior to the hearing.
Section 708.43-9. The proposed amendments to the Children’s Code provide that 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
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additional data needed for the issuance of a new birth certificate. Previously this section
provided that after entry of the order granting the adoption, the Department shall promptly
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.
Effect. Revisions to specific notice requirements throughout the Children’s Code were made to
provide greater clarification on how notice shall occur.
E. Referral of a Paternity Action to the Oneida Nation Child Support Agency. The proposed
amendments to the Children’s Code addresses referrals for paternity actions. The proposed amendments
provides that 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. [7
O.C. 708.13-3]. There is a new provision added to the that that provides that 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. Id. While
paternity is being established, the Court shall enter an order finding good cause to suspend the time
limits established under this law. Id. Previously, the Children’s Code provided that if an alleged father
appears at a hearing under this law, the Court may refer the matter to the Oneida Nation Child Support
Agency to adjudicate paternity.
Effect. The proposed amendments to the Children’s Code provide greater clarification on how a
referral to the Oneida Nation Child Support Agency occurs – that the Court may order the
Department to refer the matter to the Oneida Nation Child Support Agency – so it is not the Court
itself that refers the matter to the Oneida Nation Child Support Agency. Authority was given to the
Department to sign documents required by the Oneida Nation Child Support Agency on behalf of
the family for the limited purpose of initiating a paternity action, so that a situation could be avoided
where a paternity action is unable to be initiated because the mother of the child is unable to or not
around to sign the necessary documents.
F. Withholding the Release of Information. The proposed amendments add a new provision to the
Children’s Code which provides that 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. [7 O.C. 708.14-6]. In making that determination, the Court is required to
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. Id. After the Court conducts
the in-camera review, the decision regarding the release of records shall be provided to the parties in
writing. Id.
Effect. The Children’s Code provides that 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. [708.14-1]. The
Indian Child Welfare Department expressed concerns that the Department may have certain records
which if released could cause harm to the child. This provision was added to give the Department
a method to seek intervention by the Court to determine if certain records can be withheld in the
interest in protecting the child.
G. Holding a Child in Custody. The Children’s Code provides a list of options for where a child may be
held in custody as long as the place is in the best interest of the child and all people residing or regularly
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visiting the premises have cleared a background check. [7 O.C. 708.15-6]. The proposed amendments
to the Children’s Code add a new option to the list of where a child may be held in custody at, which
is a hospital or other medical or mental health facility. [7 O.C. 708.15-6].
Effect. The option to hold a child in custody in a hospital or other medical or mental health facility
was added to address child welfare cases where the child may need to be hospitalized or held in a
medical facility. This provides greater flexibility in determining where a child should be held in
custody that best meets the needs and interests of the child.
H. Order for Holding a Child in Custody at an Emergency Custody Hearing. The Children’s Code
provides that all orders to hold a child in custody at an emergency custody hearing shall be in writing
and provides what information is required to be included in the order. [7 O.C. 7008.16-6(a)]. The
proposed amendments to the Children’s Code will now include the addition of information that may
be, but not required to be, included in the order to hold a child in custody. [7 O.C. 7008.16-6(b)]. Now
an order to hold a child in custody may include a transfer of the legal custody of the child, including
decisions about health care and education.
Effect. Allowing an order to hold a child in custody at an emergency custody hearing to include a
transfer of the legal custody of the child, including decisions about health care and education, allow
for legal custody to be transferred to the Department or the other parent, if necessary, especially if
medical decisions need to be made on behalf of the child.
I. Request for Out of Home Placement of the Child at the Plea Hearing. The proposed amendments to
the Children’s Code provide that 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. [7 O.C. 708.19-5]. The Children’s Code
will not require that 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). Id. 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). [7 O.C. 708.19-6]. Previously, the Children’s Code did not
allow for the Department to request the out of home placement of a child at the plea hearing.
Effect. The proposed amendments to the Children’s Code will allow for the Department to request
the placement of a child outside of the child’s home at the plea hearing. Currently, it has been
interpreted that a request for the placement of the child outside of the child’s home can only occur
at an emergency custody hearing or at the dispositional hearing for a child in need of protection or
services. The Department requested this amendment so that the Department would have the ability
to avoid taking a child into emergency custody when the parents are already in agreement with a
protective plan and the child is already staying out of home under the protective plan. This allows
the Department to avoid unnecessary litigation and pressure to the family if the emergency custody
hearing can be skipped, and the department can file a petition for a child in need of protection or
services and request the ordered out of home placement at the time of the plea hearing. A protective
plan is a safety tool the Department can implement during the Initial Assessment stage of a case.
Initial Assessment lasts sixty (60) days and during that time the Indian Child Welfare Department
workers gather information, and a determination is made whether a petition for a child in need of
protection or services needs to be filed. Parents have to agree to a protective plan and the plan can
only last for sixty (60) days. There isn’t a formal order placing the child out of home within a
protective plan because a protective plan is temporary and agreed to by the parents. When the sixty
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(60) days for the initial assessment ends, if it is clear that a petition for a child in need of protection
or services needs to be filed, then the Department would like the ability to skip a contentious
emergency custody hearing and simply file a petition and ask for an order for out of home
placement at the first hearing, which is the plea hearing. An emergency custody hearing is also not
the best option in these situations because an “emergency” does not necessarily exist because the
child is safe under the protective plan and staying out of the home.
J. Withholding Identifying Information in the Dispositional Report. The proposed amendments to the
Children’s Code eliminated section 708.21-3 of the Code which provided that the Department may
request the Court to withhold 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.
Effect. Section 708.21-3 of the Children’s Code- which provided that the Department may request
the Court to withhold identifying information in the dispositional report 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 - was eliminated from the Children’s Code because
it was duplicative of section 708.12-4 – a new, more general, addition to the Code – which provides
that 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.
Section 708.12-4 then allows a parent, guardian, or legal custodian may request judicial review of
the decision to withhold the identifying information.
K. Copy of the Dispositional Order to the Child. The proposed amendments to the Children’s Code
remove the requirement to provide a copy of the dispositional order to the child is the child is age twelve
(12) or older.
Effect. After much discussion between the Indian Child Welfare Department, Oneida Law Office,
and Oneida Family Court it was determined that it may not be appropriate to provide a child age
twelve (12) or older a copy of the dispositional order due to the nature of the information that may
be included in the dispositional order and therefore this provision of the Children’s Code should be
removed.
L. Capacity of the Child to Express their Wishes. The Children’s Code provides that 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, whether the person would be a suitable guardian of the child, 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 the wishes of the child. The proposed
amendments to the Children’s Code clarify that the wishes of the child should only be considered when
the child has the capacity to express their wishes. This same revision occurs in section 708.39-3 of the
Children’s Code.
Effect. The proposed amendments provide clarification that the wishes of the child should be taken
into consideration by the Court when the child has the capacity to express their wishes.
M. Suspension of Parental Rights. The proposed amendments to the Children’s Code now allow for the
suspension of parental rights in addition to the termination 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. [7 O.C. 708.32-3]. 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
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knowledge about their unique cultural heritage including their tribal customs, history, language,
religion, and values. [7 O.C. 708.32-1]. Much like the termination of parental rights, the suspension of
parental rights should only be used 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. [7 O.C. 708.32-2]. The suspension of parental rights can occur on a
voluntary or involuntary basis. [7 O.C. 708.32-5]. 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. [7 O.C. 708.32-6]. 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. [7 O.C. 708.32-6]. The suspension of parental rights is handled the same way
as the termination of parental rights in regard to the process for the voluntary suspension or termination
[7 O.C. 708.33], grounds for involuntary suspension or termination [7 O.C. 708.34], the petition for
the suspension or termination [7 O.C. 708.35], the initial hearing on the suspension or termination [7
O.C. 708.36], the fact-finding hearing for the suspension or termination [7 O.C. 708.37], the
Department’s suspension or termination of parental rights report [7 O.C. 708.38], standards and factors
to be utilized by the Court when making a decision [7 O.C. 708.39], and the dispositional hearing for
the suspension or termination of parental rights [7 O.C. 708.40].
Effect. The proposed amendments to the Children’s Code add in provision regarding the
suspension of parental rights, in addition to the termination of parental rights that was already
included in the Children’s Code. This provides one more option for finding the best solution to a
child welfare matter to best meet the needs of the child.
N. Continuing Need of Protection or Services as a Ground for Involuntary Suspension or Termination
of Parental Rights. The Children’s Code provides various grounds for suspension or termination of
parental rights. [7 O.C. 708.34-1]. Specifically, the Children’s Code provides what needs to be proved
to demonstrate that the child is in continuing need of protection or services – which is a ground for the
suspension or termination of parental rights. [7 O.C. 708.34-1(c)]. The proposed amendments to the
Children’s Code provides that it must be provided 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. [7 O.C. 708.34-1(c)(3)]. Previously the
Children’s required that it be proved 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 there is a substantial likelihood
that the parent will not meet these conditions within the nine (9) month period following the termination
of parental rights fact-finding hearing.
Effect. This proposed revision to the Children’s Code was made to be consistent with recent
revisions to Wis. Stat. §48.415(2). Although the Nation is under no obligation to amend its laws to
be consistent with laws of the State, concern was expressed that it may be beneficial to ensure the
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Nation’s grounds for suspension or termination of parental rights are consistent with the State’s
grounds so that if a case transfers after being filed in State court, we are not in a position where we
have to dismiss the petition if the grounds pled in State court are different from the grounds found
in the Children’s Code, causing the Department to have to refile, assuming they have a factual basis
to do so.
O. Order of Disposition for the Suspension or Termination of Parental Rights. The Children’s Code
provides that if the disposition of the Court is for the suspension or termination of parental rights, the
order shall be in writing, and the Children’s Code then provides the information that is required to be
included in that order.[7 O.C. 708.40-4(b)]. The proposed amendments to the Children’s Code now
provide what the order for the disposition for the suspension or termination of parental rights may, but
is not required, to include. [7 O.C. 708.40-4(c)]. If the disposition is for the suspension or termination
of parental rights, the order may contain 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; an 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; an order that
the biological parents’ obligation to pay child support, except for arrearages, is hereby terminated; and
an order that any prior court order for custody, visitation, or contact, with the minor child is hereby
terminated. [7 O.C. 708.40-4(c)(1)-(4)]. The proposed amendments now also require that the Court
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.
Effect. The purpose of this proposed amendment to the Children’s Code is to provide greater
clarification as to what information may be included in the Court’s order for the disposition for the
suspension or termination of parental rights but is not required to be included. Additionally,
requiring that the Court 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 ensures that foster parents or relative placement
providers – particularly those no licensed by Nation – have as method to obtain a copy of the
suspension or termination of parental rights order order that they will need to attach to the petition
for adoption, since they may not have access to the Department’s records otherwise.
P. Form of Adoption. The proposed amendments to the Children’s Code provide clarification on adoption
now that suspension of parental rights is available. The amendments provide that an adoption under
this law shall take the form of customary adoption when the Court has granted a petition to suspend
parental rights. [7 O.C. 708.41-1]. When the Court grants a petition to terminate parental rights, the
adoption shall be closed. Id. Previously, the Law provided that adoptions shall take the form of
customary adoptions unless the Court determines there is good cause for the adoption to be closed.
Effect. Previously, the Children’s Code only provided for the termination of parental rights. Now
that the suspension of parental rights is also allowed under the Children’s Code, this proposed
amendment provides guidance on what form of adoption should be sought and utilized based on
whether a suspension or termination of parental rights occur. The Department sought amendments
to the Children’s Code so that customary adoptions would occur when a suspension of parental
rights occurs, rather than a termination of parental rights. The Department sought this amendment
because in order to qualify for Adoption Assistance with the State, for a customary adoption, it had
to be a suspension of parental rights that occurred and not a termination of parental rights. The
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Department wanted to ensure that adopting families under the Children’s Code had access to
support and financial assistance under the State.
Q. Adoption Investigations. The Children’s Code provides that 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. [7 O.C. 708.43-3]. The Court shall order one of
the following to conduct the investigation: if the Department, or another agency or department, has
guardianship of the child, the agency or department that has guardianship; or if no agency or department
has guardianship of the child and a relative, including a stepparent, has filed the petition for adoption,
the Department. [7 O.C. 708.43-3(a)(1)-(2)]. The proposed amendment to the Law clarifies that if the
Court orders the Department to conduct the investigation, the Department may contract with a thirdparty agency to conduct the investigation. [7 O.C. 708.43-3(b)].
Effect. The proposed amendment to the Children’s Code allows the Department to contract with a
third-party agency to conduct an adoption investigation that may have been ordered by the Court.
This provides greater flexibility to the Department in balancing their resources and time when
ordered to conduct an investigation.
R. Other Revisions. Other minor drafting revisions are made throughout the Children’s Code
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SECTION 6. EXISTING LEGISLATION
A. Related Legislation. The following laws of the Nation are related to the Children’s Code:
Paternity Law. The purpose of the Paternity law is to establish paternity of Oneida children and
other Indian children in order to protect the best interest of these children regarding such
matters as enrollment, customs and traditions of the Tribe, survivorship and inheritance, health,
support, and social security benefits. [7 O.C. 703.1-1]. It is the policy of this law to legally
establish paternity in order to recognize and identify the father of Oneida children and other
Indian children, when necessary. [7 O.C. 703.1-2].
The Children’s Code provides that 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. [7 O.C. 708.13-3]. 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. Id. While paternity is being established, the Court shall enter an order finding
good cause to suspend the time limits established under this law. Id.
The process for adjudicating paternity is then provided by the Paternity law.
[7 O.C. 703.1-6].
Oneida Judiciary Rules of Civil Procedure. The Oneida Judiciary Rules of Civil Procedure
governs all civil actions that fall under the jurisdiction of the Nation to ensure that there is a
consistent set of rules governing the process for civil claims, in order to ensure equal and fair
treatment to all persons who come before the Tribal Courts to have their disputes resolved. [8
O.C. 803.1-1, 803.1-2].
The Children’s Code provides that 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 last-known address of the party. If a
party’s whereabouts are unknown and cannot be found after diligent effort, service
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shall be by publication as described in the Oneida Judiciary Rules of Civil Procedure.
[7 O.C. 708.12-1].
The Oneida Judiciary Rules of Civil Procedure provides that when the other
party’s whereabouts are unknown and cannot be found after diligent effort,
service may be completed by publication. The publication shall be in the Tribal
newspaper or in a newspaper of general circulation in the area of the party’s
last known address and shall be designated as “Legal Notice.” This notice shall
be published at least two (2) times within a thirty (30) day period. The two (2)
notices shall be published at least ten (10) days before the hearing. Copies of
the two (2) published notices and an affidavit of service stating the facts
surrounding the failure of personal and mail service shall be filed with the
Court as proof of service. The Court may, on its own, order different time
limits for service by publication. [8 O.C. 803.5-6(c)].
The Children’s Code provides that 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. [7 O.C. 708.12-3].
The Oneida Judiciary Rules of Civil Procedure provides that personal service
shall consist of delivering to the party a copy of the paper being served by a
law enforcement officer or other person, who is not a party to the action and
who is at least eighteen (18) years of age. An affidavit of service shall be filed
with the Court as proof of service. Personal service shall be completed by hand
delivering the required papers to any of the following: The party named in the
action or proceeding; An individual residing at the party’s home or usual place
of abode, so long as the person signing for delivery is at least eighteen (18)
years of age; An officer, manager, agent, or partner of a non-individual party;
or an attorney or advocate of the party, if represented. [8 O.C. 803.5-6(a)].
The Children’s Code provides that 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. [7 O.C. 708.14-5].
The Oneida Judiciary Rules of Civil Procedure provides procedures for
discovery including the scope, required disclosures, limitations, time for
required disclosures, required pretrial disclosures, protective orders,
supplementing disclosures and responses, signatures required and the effect of
signatures, failure to disclose and information produced. [8 O.C. 803.14].
The Children’s Code provides that the fact-finding hearing for a child in need of
protection or services shall be conducted according to the Oneida Judiciary Rules of
Civil Procedure except that the Court may exclude the child from the hearing. [7 O.C.
708.20-2].
The Oneida Judiciary Rules of Civil Procedure provides general hearing
procedures. [8 O.C. 803.38].
The Children’s Code provides that after receiving any evidence relating to the
disposition for guardianship, the Court shall enter a disposition and issue a written
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decision consistent with the Oneida Judiciary Rules of Civil Procedure.[7 O.C. 708.2911].
The Oneida Judiciary Rules of Civil Procedure provides procedure for entering
and enforcing a judgment of the Court. [8 O.C. 803.31].
The Children’s Code provides that the fact-finding hearing for the suspension or
termination of parental rights shall be conducted according to the Oneida Judiciary
Rules of Civil Procedure except that the Court may exclude the child from the hearing.
[7 O.C. 708.37-2].
The Oneida Judiciary Rules of Civil Procedure provides general hearing
procedures. [8 O.C. 803.38].
The Children’s Code provides that after receiving any evidence relating to the
disposition for the suspension or termination of parental rights, the Court shall enter a
disposition and issue a written decision consistent with the Oneida Judiciary Rules of
Civil Procedure.[7 O.C. 708.40-1].
The Oneida Judiciary Rules of Civil Procedure provides procedure for entering
and enforcing a judgment of the Court. [8 O.C. 803.31].
Family Court Law. The purpose of the Family Court law is to establish a Family Court, and to
provide for the administration of law, justice, judicial procedures and practices by the Oneida
Tribe as a sovereign nation by exercising the inherent power to make, execute, apply, and
enforce its own law, and to apply its own customs and traditions in matters affecting the Oneida
people as it pertains to the family and/or to our children.
The Children’s Code provides that the Court has personal jurisdiction over an Oneida
Child, and over a non-Oneida child in certain circumstances. [7 O.C. 708.5-1].
Additionally, the Children’s Code provides that the Court has jurisdiction over a child
alleged to be in need of protection or services if personal jurisdiction has been
established and the child meets certain requirements. [7 O.C. 708.5-2]. Court is defined
in the Children’s Code as the Oneida Nation Family Court, which is the branch of the
Oneida Nation Judiciary that has the designated responsibility to oversee family
matters. [7 O.C. 708.3-1(j)].
The Family Court law provides that there is a Family Court, which shall
administer the judicial authorities and responsibilities of the Tribe over all
matters pertaining to the family, children, and elders, except for probate
matters. [8 O.C. 806.4-1]. The Family Court shall have subject matter
jurisdiction over cases and controversies arising under the following: Tribal
laws which specifically authorize the Court to exercise jurisdiction, and the
Constitution. [8 O.C. 806.5-2]. The Family Court law then describes when the
Family Court has personal jurisdiction of an individual including Indians and
non-Indians. [8 O.C. 806.5-3].
Oneida Judiciary Rules of Evidence. The Oneida Judiciary Rules of Evidence establishes rules
of evidence to apply in proceedings held in the Trial court and Family Court of the Oneida
Judiciary administer Court proceedings fairly, eliminate unjustifiable expense and delay, and
promote the development of evidence law, by obtaining the truth and securing a just
determination. [8 O.C. 804.1-1, 804.1-2].
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The Children’s Code provides that 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. [7 O.C. 708.13-2].
Child Support Law. The purpose of the Child Support law is to establish the legal responsibility
of parents to provide financially for their children’s general well-being; make support payments
more equitable by ensuring consistent treatment of persons in similar circumstances; make
support payments based on the real earning capability of parents; and improve the efficiency
of child support establishment and enforcement. [7 O.C. 704.1-1].
The Children’s Code provides that at any time, the Court or the Department may refer
the matter to the Nation’s Child Support Agency. [7 O.C. 708.13-4].
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SECTION 7. OTHER CONSIDERATIONS
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A. Fiscal Impact. Under the Legislative Procedures Act, a fiscal impact statement is required for all
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legislation except emergency legislation [1 O.C. 109.6-1]. Oneida Business Committee resolution BC617
10-28-20-A titled, “Further Interpretation of ‘Fiscal Impact Statement’ in the Legislative Procedures
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Act,” provides further clarification on who the Legislative Operating Committee may direct complete
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a fiscal impact statement at various stages of the legislative process, as well as timeframes for
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completing the fiscal impact statement.
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Conclusion. The Legislative Operating Committee has not yet directed that a fiscal impact
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statement for the proposed amendments to the Children’s Code be prepared.
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Title 7. Children, Elders and Family - Chapter 708
CHILDREN’S CODE
Latiksa>sh&ha Laotilihw@=ke
the children – their issues
CHILDREN’S CODE
708.1.
708.2.
708.3.
708.4.
708.5.
708.6.
708.7.
708.8.
708.9.
708.10.
708.11.
708.12.
708.13.
708.14.
708.15.
708.16.
708.17.
708.18.
708.19.
708.20.
708.21.
708.22.
708.23.
708.24.
708.25.
Purpose and Policy
Adoption, Amendment, Repeal
Definitions
Scope
Jurisdiction
Nation’s Child Welfare Attorney
Indian Child Welfare Department Duties and
Responsibilities
Guardian ad litem
Advocate
Cultural Wellness Facilitator and Healer
Order of Placement Preferences
Notice of Petition
Hearings (General)
Discovery and Records
Taking a Child into Custody
Emergency Custody Hearing
Petition for a Child in Need of Protection or Services
Consent Decree
Plea Hearing for a Child in Need of Protection or
Services
Fact-finding Hearing for a Child in Need of Protection
or Services
Department’s Disposition Report for a Child in Need of
Protection or Services
Dispositional Hearing for a Child in Need of Protection
or Services
Permanency Plans
Change in Placement
Trial Reunification
708.26.
708.27.
708.28.
708.29.
Revision of Dispositional Orders
Extension of Dispositional Orders
Continuation of Dispositional Orders
Guardianship for Certain Children in Need of Protection
or Services
708.30. Revisions of Guardianship Order
708.31. Termination of Guardianship
708.32. Suspension or Termination of Parental Rights
708.33. Voluntary Suspension or Termination of Parental Rights
708.34. Grounds for Involuntary Suspension or Termination of
Parental Rights
708.35. Petition for Suspension or Termination of Parental
Rights
708.36. Initial Hearing on the Suspension or Termination of
Parental Rights Petition
708.37. Fact Finding Hearing for a Suspension or Termination of
Parental Rights
708.38. Department’s Suspension or Termination of Parental
Rights Report
708.39. Standards and Factors
708.40. Dispositional Hearings for Suspension or Termination of
Parental Rights
708.41. Adoption
708.42. Adoption Criteria and Eligibility
708.43. Adoption Procedure
708.44. Non-Compliance with a Residual Rights Agreement
708.45. Peacemaking and Mediation
708.46. Appeals
708.47. Liability
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2
3
4
5
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7
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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-__-__-__-__.
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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.
708.2-3. Should a provision of this law or the application thereof to any person or circumstances
be held as invalid, such invalidity shall not affect other provisions of this law which are considered
to have legal force without the invalid portions.
708.2-4. In the event of a conflict between a provision of this law and a provision of another law,
the provisions of this law shall control. Provided that, this law repeals the following:
(a) Resolution # BC-09-25-81 Oneida Child Protective Board Ordinance;
(b) Resolution # BC-10-07-81-A Appointing Members to the Oneida Child Protective
Board;
(c) Resolution # BC-05-24-84-C Definition of Extended Family Member;
(d) Resolution # BC-01-14-15-A Amendment of Oneida Child Protective Board
Ordinance;
(e) Resolution # BC-05-13-15 Indian Child Welfare Act Policy; and
(f) Resolution # BC-12 -10-03-A Oneida Child Protective Boards Stipends.
708.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.
708.3. Definitions
708.3-1. This section shall govern the definitions of words and phrases used within this law. All
words not defined herein shall be used in their ordinary and everyday sense.
(a) “Abuse” means any of the following:
(1) Physical injury inflicted on a child by other than accidental means;
(2) Sexual assault;
(3) Sexual exploitation of a child;
(4) Prostitution or trafficking of a child;
(5) Causing a child to view or listen to sexual activity or sexually explicit materials;
(6) Exposing a child to the manufacture, sale, or use of controlled substances;
and/or
(7) Emotional damage for which the child’s parent, guardian, or legal custodian has
neglected, refused, or been unable for reasons other than poverty to obtain the
necessary treatment or take steps to address the issue.
(b) “Advocate” means a person who is a non-attorney presented to the Court as the
representative or advisor to a party.
(c) “Alcohol and other drug abuse impairment” means a condition of a person which is
exhibited by characteristics of habitual lack of self-control in the use of alcoholic beverages
or controlled substances to the extent that the person’s health is substantially affected or
endangered or the person’s social or economic functioning is substantially disrupted.
(d) “Attorney” means a person trained and licensed to represent another person in Court,
to prepare documents and to give advice or counsel on matters of law.
(e) “Best interest of the child” means the interest of a child to:
(1) Have a full, meaningful, and loving relationship with both parents and family
as much as possible;
(2) Be free from physical, sexual and emotional abuse;
(3) Be raised in conditions that foster and encourage the happiness, security, safety,
welfare, physical and mental health, and emotional development of the child;
(4) Receive appropriate medical care;
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(5) Receive appropriate education;
(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 and/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.
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(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.
(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.
(z)(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 as codified at 25 USC 1901.
(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.
(aa)(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.
(bb)(dd)
“Mediation” means a method of dispute resolution that involves a neutral
third party who tries to help disputing parties reach an agreement.
(cc)(ee)
“Nation” means the Oneida Nation.
(dd)(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.
(ee)(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.
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(ff)(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.
(gg)(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.
(hh)(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.
(ii)(ll) “Plea hearing” means a hearing to determine whether any party wishes to contest a
petition filed under this law.
(jj)(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.
(kk)(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.
(ll)(pp) “Relative” means any person connected with a child by blood, marriage or
adoption.
(mm)(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.
(nn)(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.
(oo)(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.
(pp)(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.
(qq)(uu)
“Stepparent” means the spouse or ex-spouse of a child’s parent who is not
a biological parent of the child.
(rr)(vv)“Stipulation” means a formal legal acknowledgement and agreement made between
opposing parties prior to a pending hearing or trial.
(ss)(ww)
“Substantial parental relationship" means the acceptance and exercise of
significant responsibility for the daily supervision, education, protection and care of a child.
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(tt) “Termination of parental rights" means that, pursuant to a court order, all rights,
powers, privileges, immunities, duties and obligations existing between parent and child
are permanently severed.
(uu)(xx)
“Treatment“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.
(vv)(yy)
“Warrant” means an order issued by a court commanding a law enforcement
officer to perform some act incident to the administration of justice.
708.4. Scope
708.4-1. This law shall apply to all child welfare cases and legal proceedings in which the Nation
has jurisdiction. Nothing in this law is meant to restrict or limit another court of competent
jurisdiction from hearing a matter involving an Indian child.
708.5. Jurisdiction
708.5-1. Personal Jurisdiction. The Court shall have personal jurisdiction over the following
individuals:
(a) Jurisdiction over an Oneida Child. The Court shall have personal jurisdiction over
any child who is present or resides within the boundaries of Brown and Outagamie County
and is enrolled or eligible for enrollment in the Nation.
(b) Jurisdiction over a Non-Oneida Child. The Court shall have personal jurisdiction over
any child not enrolled or eligible for enrollment in the Nation who is present or resides
within the boundaries of the Reservation and is a sibling of a child that is enrolled or
eligible for enrollment in the Nation if the child’s parent(s), guardian or legal custodian
consents to the jurisdiction of the Court. Consent to the jurisdiction of the Court can be
given by any of the following:
(1) The parent(s), guardian or legal custodian knowingly and voluntarily provides
the Court with written consent to the jurisdiction of the Court; or
(2) The Court establishes on the record that the parent(s), guardian or legal
custodian knowingly and voluntarily provides the Court with verbal consent to the
jurisdiction of the Court.
708.5-2. Jurisdiction over Children Alleged to be in Need of Protection or Services. The Court
shall have jurisdiction over a child alleged to be in need of protection or services if personal
jurisdiction has been established and the child:
(a) is without a parent or guardian;
(b) has been abandoned;
(c) has a parent that relinquished custody of the child pursuant to the Nation’s laws or state
law and has no other parent available to provide necessary care;
(d) has been the victim of abuse, including injury that is self-inflicted or inflicted by
another;
(e) is at substantial risk of becoming the victim of abuse, including injury that is selfinflicted or inflicted by another, based on reliable and credible information that another
child in the home has been the victim of such abuse;
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(f) has a parent or, 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;
(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 section 708.5-2all requirements of this law have been met the Court
may:
(a) terminate or suspend parental rights to a child;
(b) appoint, revise, and/or remove a guardian; and
(c) hold adoption proceedings.
708.5-4. Transfer of Cases from other Courts. If personal jurisdiction has been established the
Court has jurisdiction over any action transferred to the Court from any court of competent
jurisdiction.
(a) While a case is being transferred to the Court from another court, any time limits
established by this law shall be tolled until the next hearing on the matter before the Court.
708.5-5. Transfer of Cases to other Courts. The Court may transfer a case under this law to a court
of competent jurisdiction where the other court has a significant interest in the child and the transfer
would be in the best interest of the child.
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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
(c) An attorney contracted by the Department.
708.7. Indian Child Welfare Department Duties and Responsibilities
708.7-1. Indian Child Welfare Worker. The Indian Child Welfare Worker shall carry out the duties
and responsibilities set forth in this law which include, but are not limited to the following:
(a) Receive, examine, and investigate complaints and allegations that a child is in need of
protection or services for the purpose of determining the appropriate response under this
law, which may include notifying law enforcement;
(b) Receive referral information, conduct intake inquiries, and determine whether to
initiate child welfare proceedings;
(c) Determine whether a child should be held pursuant to the emergency provisions of this
law;
(d) Make appropriate referrals of cases to other agencies when appropriate, and share
information with other agencies if their assistance appears to be needed or desirable;
(e) Maintain records;
(f) Enter into informal dispositions or protective plans with families;
(g) Refer counseling or any other functions or services to the child and/or family as
designated by the Court;
(h) Identify and develop resources within the community that may be utilized by the
Department and Court;
(i) Make reasonable efforts to obtain necessary services for the child and family and
investigate and develop resources for the child and family to utilize;
(j) Accept legal custody of children when ordered by the Court;
(k) Make reports and recommendations to the Court;
(l) Make recommendations to the Nation’s Child Welfare attorney;
(m) Request transfer from state court to the Nation’s court when appropriate;
(n) Perform any other functions ordered by the Court within the limitations of the law;
(o) Develop appropriate plans and conduct reviews;
(p) Negotiate agreements for services, record sharing, referral, and funding for child family
service records within the Department;
(q) Provide measures and procedures for preserving the confidential nature of child and
family service records within the Department;
(r) Participate in continuing training, conferences and workshops pertinent to child welfare
issues;
(s) Explain the court proceedings to the child in language and terms appropriate to the
child’s age and maturity level when a guardian ad litem is not appointed for a child; and
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(t) Maintain a knowledge and understanding of all relevant laws and regulations.
708.7-2. Department. In performing the duties set forth in this law, the Department shall:
(a) Identify and refer parties to resources in the community calculated to resolve the
problems presented in petitions filed in Court, such as the various psychiatric,
psychological, therapeutic, counseling, and other social services available within and
outside the Nation when necessary;
(b) Identify and refer parties to resources in the community designed to enhance the child’s
potential as a member of the Nation;
(c) Investigate, inspect, and license foster homes, and monitor and supervise foster homes
and children in foster care;
(d) Adhere to the placement preference order stated in section 708.10; and11;
(e) Enter into memorandums of understanding and/or agreement with the Oneida Trust
Enrollment Committee and/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 andagencies, law enforcement agencies;,
and other entities of the Nation as it pertains to children under the jurisdiction of this law.
708.8. Guardian ad litem
708.8-1. Appointment. The appointment of a guardian ad litem shall be as follows:
(a) The Court may appoint a guardian ad litem for any child who is the subject of a child
in need of protection or services proceeding;
(b) The Court shall appoint a guardian ad litem for any child who is the subject of a
proceeding to terminate or suspend parental rights, whether voluntary or involuntary, for a
child who is the subject of a contested adoption proceeding, and for a child who is the
subject of a contested guardianship proceeding;
(c) The Court shall appoint a guardian ad litem for a minor parent petitioning for the
voluntary termination of their parental rights; and
(d) A guardian ad litem may be appointed for any other circumstance the Court deems
necessary.
708.8-2. Qualifications.
(a) A guardian ad litem shall be an adult who:
(1) is at least twenty one (21) years of age;
(2) is currently certified as a guardian ad litem and in good standing;
(3) has never been convicted of a felony unless the person received a pardon or
forgiveness; and
(4) has never been convicted of any crime against a child.
(b) No person shall be appointed guardian ad litem in that proceeding who:
(1) has a personal interest in the outcome of the case, a party to the proceeding, or
any other interest that has the potential to corrupt a person’s motivation or decision
making, because of an actual or potential divergence between the person’s self-interests,
and the best interests of the case;
(2) appears as counsel or an advocate in the proceeding on behalf of any party; or
(3) is related to a party of the proceeding, the Judge for the proceeding, or an
appointing Judge by blood, marriage, adoption or related by a social tie that could
be reasonably interpreted as a conflict of interest.
(c) A guardian ad litem may be recognized as certified by the Court if he or she:
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(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, teachers and all other relevant persons to
gather facts when appropriate;
(b) consider the importance of the child’s culture, heritage and traditions;
(c) consider, but shall not be bound by, the wishes of the child or the positions of others
as to the best interests of the child;
(d) explain the role of the guardian ad litem and the court proceedings to the child in
language and terms appropriate to the child’s age and maturity level;
(e) provide a written or oral report to the Court regarding the best interests of the child,
including conclusions and recommendations and the facts upon which they are based;
(f) recommend evaluations, assessments, services and treatment of the child and the child’s
family when appropriate;
(g) inform the court of any concerns or possible issues regardregarding 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
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708.10-1. The Department may utilize a Cultural Wellness Facilitator and Healer, or similar
position, throughout all child welfare proceedings.
708.10-2. The Cultural Wellness Facilitator and Healer may provide:
(a) wellness sessions utilizing culturally based and appropriate healing methods;
(b) training on Oneida culture, language and traditions; and
(c) and any other service that may be necessary.
708.11. Order of Placement Preferences
708.11-1. The following order of placement preferences shall be followed when it is necessary to
place a child outside of the home under this law:
(a) A member of the child’s immediate or extended family;
(b) A family clan member;
(c) A member of the Nation;
(d) Descendants of the Nation;
(e) A member of another federally recognized tribe;
(f) Fictive kin within the Nation community;
(g) Fictive kin outside the Nation community; or
(h) Any other person or persons not listed above.
708.11-2. The order of placement preferences listed in section 708.11-1. are prioritized from the
most preference given to a child placed in a home in accordance with section 708.11-1(a) and the
least amount of preference given to a child placed in a home in accordance with section 708.111(h).
708.11-3. In order to deviate from the placement preferences listed in section 708.11-1, the Court
shall consider the best interest of the child when determining whether there is good cause to go
outside the placement preference.
(a) Good cause to go outside the placement preferences shall be determined based on any
of the following:
(1) When appropriate, the request from the child’s parent or the child, when the
child is age twelve (12) or older;
(2) Any extraordinary physical, mental or emotional health needs of the child
requiring highly specialized treatment services as established by an expert;
(3) The unavailability of a suitable placement after diligent efforts have been made
to place the child in the placement preference listed in section 708.11-1; or
(4) Any other reason deemed by the Court to be in the best interest of the child.
(b) The party requesting to deviate from the placement preferences listed in 708.11-1 has
the burden of establishing good cause.
708.12. Notice of Petition; General Terms
708.12-1. Petitions alleging that a child is in needService of protection or services may be given
to the parties directly by the Nation’s Child Welfare attorney or the Indian Child Welfare Worker
or served on the parties pursuant to the Oneida Judiciary Rules of Civil Procedure.
documents708.12-2.
Petitions for termination of parental rights, guardianship, and
adoptionnotices shall be as specified in this law. If a method of service is not specified in this law,
then service shall be served on all other parties pursuant to the Oneida Judiciary Rules of Civil
Procedure.
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708.12-3. All parties shall be notified of all subsequent hearings under this law by first-class mail
to the recently verified last-known 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.
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.
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708.14-2. If a request for discovery is refused, the person may submit an application to the Court
requesting an order granting discovery. Motions for discovery shall certify that a request for
discovery has been made and refused.
708.14-3. If 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.
708.14-4. The identity of the individual that initiated the investigation by contacting the
Department, shall be redacted in all documents that are made available to the parties.
708.14-5. 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.
708.14-6. The Department may make an ex parte request to the Court to conduct an in camera
review to determine what information should and should not be released to the parties and their
counsel. In making that determination, the Court shall balance what is necessary to a fair
determination of the child welfare legal matter, including access to records, against the interest in
protecting the child from the risk of harm. After the Court conducts the in camera review, the
decision regarding the release of records shall be provided to the parties in writing.
708.15. Taking a Child into Custody
708.15-1. Grounds for Taking a Child into Custody. A child may be taken into custody without
a Court order by an Indian Child Welfare Worker or law enforcement officer if there are reasonable
grounds to believe:
(a) A warrant for the child's apprehension has been issued by the Court or another court of
competent jurisdiction to take the child into custody;
(b) The child is suffering from illness or injury or is in immediate danger from his or her
surroundings and removal from those surroundings is necessary; and/or
(c) The child has violated the conditions of an order issued pursuant to this law.
708.15-2. The Court may enter an order directing that a child be taken into custody upon a showing
satisfactory to the judge that the welfare of the child demands that the child be immediately
removed from his or her present custody.
708.15-3. A person taking the child into custody, under this section, shall immediately attempt to
notify the parent(s), guardian(s), and legal custodian(s) of the child by the most practical means.
Attempts to satisfy notification shall continue until either the parent(s), guardian(s), and legal
custodian(s) of the child is notified, or the child is delivered to an Indian Child Welfare Worker,
whichever occurs first. If the child is delivered to the Indian Child Welfare Worker before the
parent(s), guardian(s), and legal custodian(s) is notified, the Indian Child Welfare Worker, or
another person at his or her direction, shall continue the attempt to notify until the parent(s),
guardian(s), and legal custodian(s) of the child is notified.
708.15-4. Once the child is taken into custody and turned over to the care of the Department, the
Department shall make every effort to release the child immediately to the child's parent(s),
guardian(s), and legal custodian(s), so long as it is in the child’s best interest and the parent(s),
guardian(s), and legal custodian(s) is willing to receive the child.
708.15-5. Probable Cause for Taking a Child into Custody. A child may be held in custody if the
Indian Child Welfare Worker determines the child is within the jurisdiction of the Court and
probable cause exists to believe any of the following if the child is not held in custody:
(a) The child will cause injury to himself or herself or be subject to injury by others;
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(b) The child will be subject to injury by others, based on a determination that if another
child in the home is not held that child will be subject to injury by others;
(c) The parent, guardian or legal custodian of the child or other responsible adult is
neglecting, refusing, unable or unavailable to provide adequate supervision and care, and
that services to ensure the child's safety and well-being are not available or would be
inadequate;
(d) The child meets the criteria for probable cause for taking a child into custody specified
in section 708.15-5(c), based on a determination that another child in the home meets any
of the criteria; or
(e) The child will run away or be taken away so as to be unavailable for proceedings of the
Court.
708.15-6. Holding a Child in Custody. A child held in custody may be held in any of the following
places as long as the places are in the child’s best interest and all people residing or regularly
visiting the premises have cleared a background check:
(a) The home of a relative, except that a child may not be held in the home of a relative
that has been convicted of the first-degree intentional homicide or the second-degree
intentional homicide of a parent of the child, or any crime against a child, and the
conviction has not been pardoned, forgiven, reversed, set aside or vacated, unless the
person making the custody decision determines by clear and convincing evidence that the
placement would be in the best interests of the child. The person making the custody
decision shall consider the wishes of the child in making that determination;
(b) A licensed foster home;
(c) A licensed group home;
(d) A non-secure facility operated by a licensed child welfare agency;
(e) A licensed private or public shelter care facility; or
(f) A hospital or other medical or mental health facility; or
(f)(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 708.1011-1 are preferred, but not mandatory. If the preferences for
placement are not followed, the Department shall try to transition that child into a home that fits
the order of preferences for placement as quickly as deemed appropriate by the Department.
708.15-8. If a child is held in custody, the Indian Child Welfare Worker shall notify the child’s
parent(s), guardian(s), and legal custodian(s) of the reasons for holding the child and of the child's
whereabouts except when the Indian Child Welfare Worker believes that notice would present
imminent danger to the child. If the parent, guardian, or legal custodian is not immediately
available, the Indian Child Welfare Worker or another person designated by the worker shall
provide notice as soon as possible.
708.15-9. The Indian Child Welfare Worker shall also notify the parent, guardian, and legal
custodian of the following:
(a) the date, time and place of the emergency custody hearing;
(b) the nature and possible outcomes of the hearing;
(c) the right to present and cross-examine witnesses; and
(d) the right to retain counsel at his or her own expense.
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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.
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 ofafter the time the decision
to hold the child was made, excluding Saturdays, Sundays, and holidays. By the time of the
hearing, a petition for a child in need of protection or services under section 708.17 shall be filed
unless the Department seeks and receives an extension pursuant to section 708.16-2. The child
shall be released from custody if a hearing is not held within the specified timelines.
708.16-2. If no petition has been filed by the time of the hearing, a child may be held in custody
with approval of the Court for an additional seventy-two (72) hours from the time of the hearing,
excluding Saturdays, Sundays, and holidays, only if, as a result of the facts brought forth at the
hearing, the Court determines that probable cause exists to believe any of the following:
(a) That additional time is required to determine whether the filing of a petition initiating
proceedings under this law is necessary;
(b) That the child is an imminent danger to himself or herself or to others; or
(c) The parent, guardian, and legal custodian of the child or other responsible adult is
neglecting, refusing, unable, or unavailable to provide adequate supervision and care.
708.16-3. The Court may grant a one-time extension under section 708.16-2 for a petition. In the
event a petition is not filed within the extension period, the Court shall order the child's immediate
release from custody. For any parties not present at the hearing, the Department shall serve the
petition on those parties by certified mail, return receipt requested.
708.16-4. Prior to the start of the hearing, the Court shall provide a copy of the petition to the
parent, guardian, and legal custodian if present, and to the child if he or she is twelve (12) years of
age or older.
708.16-5.708.16-4. Prior to the start of the hearing, the Court shall inform the parent, guardian, or
legal custodian of the following:
(a) allegations that have been made or may be made;
(b) the nature and possible outcomes of the hearing and possible future hearings;
(c) the right to present and cross-examine witnesses; and
(d) the right to retain counsel at his or her own expense.
708.16-65. 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.
708.16-76. All orders to hold a child in custody shall be in writing and shall include all of the
following:.
(a) All orders to hold a child in custody shall include all of the following:
(a)
(1) A finding that continued placement of the child in his or her home would
be contrary to the best interests of the child;
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(b)
(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;
(c)
(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
interestinterests are the paramount concerns;
(d)
(4) The Department made reasonable efforts to make it possible for the
child to return safely home; and
(e)
(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 well-being 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.
708.16-87. 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.
708.16-98. An order to hold a child in custody may be re-heard upon motion of any party if, in
the Court’s discretion, good cause is found, whether or not counsel was present.
708.17. Petition for a Child in Need of Protection or Services
708.17-1. The Nation’s Child Welfare attorney or the Department shall initiate proceedings under
this section by filing a petition with the Court, signed by a person who has knowledge of the facts
alleged or is informed of them and believes them to be true. Upon filing with the Court, the
Department shall provide a copy of the petition to the parties by personal service or, if personal
service is not possible, by certified mail with return receipt requested.
708.17-2. The petition shall include the following:
(a) The name, birth date, address, and tribal affiliation of the child;
(b) The names, birth dates, addresses, and tribal affiliation of the child's parent, guardian,
legal custodian or spouse, if any; or if no such person can be identified, the name and
address of the nearest relative;
(c) Whether the child is in custody, and, if so, the place where the child is being held and
the date and time he or she was taken into custody unless there is reasonable cause to
believe that such disclosure would result in imminent danger to the child or legal custodian;
(d) A Uniform Child Custody Jurisdiction and Enforcement Act affidavit;
(e) A plain and concise statement of facts upon which the allegations are based, including
the dates, times, and location at which the alleged acts occurred. If the child is being held
in custody outside his or her home, the statement shall include information showing that
continued placement of the child in the home would be contrary to the welfare of the child
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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. An Upon filing
with the Court, the Department shall provide a copy of the amended petition may be given to the
parties directly by the Nation’s Child Welfare attorney or the Indian Child Welfare Worker or served on
the parties pursuant to the Oneida Judiciary Rules of Civil Procedurecertified mail with return receipt
requested.
708.18. Consent Decree
708.18-1. Consent Decree. At any time after the filing of a petition pursuant to section 708.17
and before the entry of judgment, the Court may suspend the proceedings and place the child under
supervision in the home or present placement of the child. The Court may establish terms and
conditions applicable to the child and the child's parent, guardian or legal custodian. The order
under this section shall be known as a consent decree and must be agreed to by the child who is
twelve (12) years of age or older, the parent, guardian or legal custodian, and the person filing the
petition. The consent decree shall be reduced to writing and given to the parties.
708.18-2. Requirements of a Consent Decree. If at the time the consent decree is entered into the
child is placed outside the home and if the consent decree maintains the child in that placement,
the consent decree shall include all of the following:
(a) A finding that placement of the child in his or her home would be contrary to the
welfare of the child;
(b) A finding as to whether the Department has made reasonable efforts to prevent the
removal of the child from the home, while assuring that the child's health and safety and
best interests are the paramount concerns;
(c) If a permanency plan has previously been prepared for the child, a finding as to whether
the Department has made reasonable efforts to achieve the permanency goal of the child's
permanency plan; and
(d) If the child has one or more siblings who have also been removed from the home, the
consent decree shall include a finding as to whether the Department has made reasonable
efforts to place the child in a placement that enables the sibling group to remain together,
unless the Court determines that the placement of the siblings together would be contrary
to the safety, well-being and best interests of the child or any of those siblings, in which
case the Court shall order the department to make reasonable efforts to provide for frequent
visitation or other ongoing interaction between the child and the siblings, unless the Court
determines that such visitation or interaction would be contrary to the safety, well-being or
best interests of the child or any of those siblings.
708.18-3. Time Limits of Consent Decree. A consent decree shall remain in effect up to six (6)
months unless the child, parent, guardian, or legal custodian is discharged sooner by the
Court. The time limits under this law shall be tolled during the pendency of the consent decree.
708.18-4. Extension of a Consent Decree. Upon the motion of the Court or the request of the
child, parent, guardian, legal custodian, child's guardian ad litem, or the Department, the Court
may, after giving notice to the parties to the consent decree, extend the decree for up to an
additional six (6) months in the absence of objection to the extension by the parties to the initial
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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.
708.19. Plea Hearing for a Child in Need of Protection or Services
708.19-1. A plea hearing shall take place on a date which allows reasonable time for the parties to
prepare but is within forty-five (45) days after the filing of a petition, unless the Court enters an
order finding good cause to go outside of the time limits.
708.19-2. If a petition is not contested, the Court shall set a date for the dispositional hearing
which allows reasonable time for the parties to prepare but is within forty-five (45) days after the
plea hearing, unless the Court enters an order finding good cause to go outside the time limits. If
all the parties agree and the Department has submitted a court report pursuant to section 708.21,
the Court may proceed immediately with the dispositional hearing.
708.19-3. If the petition is contested, the Court shall set a date for the fact-finding hearing which
allows reasonable time for the parties to prepare but is within sixty (60) days after the plea hearing,
unless the Court enters an order finding good cause to go outside the time limits.
708.19-4. Before accepting an admission or plea of no contest of the alleged facts in a petition,
the Court shall:
(a) Address the parties present and determine that the plea of no contest or admission is
made voluntarily with understanding of the nature of the acts alleged in the petition and
the potential outcomes;
(b) Establish whether any promises or threats were made to elicit the plea of no contest or
admission; and
(c) Make inquiries that establish a factual basis for the plea of no contest or admission.
708.19-5. At the plea hearing the Department may request placement of the child outside of the
child’s home in accordance with the placement preferences in section 708.11-1, if notice of the
Department’s intent to seek out of home placement of the child was provided to the parties prior
to the hearing in substantial compliance with section 708.15-9. In the request for placement of the
child outside of the child’s home the Department shall present as evidence specific information as
outlined in 708.16-6(a)(1)-(5).
708.19-6. If the Court orders the out of home placement of the child, the order shall be in writing
and shall contain the information required by section 708.16-6(a)(1)-(5).
708.20. Fact finding Hearing for a Child in Need of Protection or Services
708.20-1. The fact-finding hearing is a hearing conducted by the Court to determine whether there
is clear and convincing evidence to establish that the child is in need of protection or services.
708.20-2. The fact-finding hearing shall be conducted according to the Oneida Judiciary Rules of
Civil Procedure except that the Court may exclude the child from the hearing.
708.20-3. At the close of the fact-finding hearing, the Court shall set a date for the dispositional
hearing which allows a reasonable time for the parties to prepare but is no more than forty-five
(45) days after the fact-finding hearing, unless the Court enters an order finding good cause to go
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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;
(b) A strategic plan for the care of and assistance to the child and family calculated to
resolve the concerns presented in the petition;
(c) A detailed explanation showing the necessity for the proposed plan of disposition and
the benefits to the child and family under the proposed plan; and
(d) If an out-of-home placement is being recommended, specific reasons for
recommending that placement.
708.21-2. If the Department is recommending out-of-home placement, the written report shall
include all of the following:
(a) The location of the placement and where it fits within the placement preferences.
(b) A recommendation as to whether the Court should establish a child support obligation
for the parents;
(c) Specific information showing that continued placement of the child in his or her home
would be contrary to the best interests of the child and specific information showing that
the Department has made reasonable efforts to prevent the removal of the child from the
home, while assuring that the child's best interests are the paramount concerns;
(d) If the child has one (1) or more siblings who have been removed from the home or for
whom an out-of-home placement is recommended, specific information showing that
Department has made reasonable efforts to place the child in a placement that enables the
sibling group to remain together, unless the Department recommends that the child and his
or her siblings not be placed together, in which case the report shall include specific
information showing that placement of the children together would be contrary to the best
interests of the child or any of those siblings; and
(e) If a recommendation is made that the child and his or her siblings not be placed together
specific information showing that the Department has made reasonable efforts to provide
for frequent visitation or other ongoing interaction between the child and the siblings,
unless the Department recommends that such visitation or interaction not be provided, in
which case the report shall include specific information showing that such visitation or
interaction would be contrary to best interests of the child or any of those siblings;
708.21-3. The Department may request the Court to withhold 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.
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:
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(a) That continued placement of the child in his or her home would be contrary to the best
interests of the child;
(b) That the Department has made reasonable efforts to prevent the removal of the child
from the home, while assuring that the child's best interests are the paramount concerns;
(c) If the child has one (1) or more siblings who have been removed from the home or for
whom an out-of-home placement is recommended, that the Department has made
reasonable efforts to place the child in a placement that enables the sibling group to remain
together, unless the Department recommends that the child and his or her siblings not be
placed together, in which case the Department shall present as evidence specific
information showing that placement of the children together would be contrary to the best
interests of the child or any of those siblings; and
(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 treatmentservice 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 treatmentservice plan, the
identity of the legal custodian;
(b) If the child is placed outside the home, where the child will be placed. If the Court
finds that disclosing identifying information related to placement of the child would result
in imminent danger to the child or anyone else, the Court may order the name and address
of whom the child is placed with withheld from the parent or guardian;
(c) The date of the expiration of the court's order;
(1) A dispositional order made before the child reaches eighteen (18) years of age
that places or continues the placement of the child in his or her home shall terminate
one (1) year after the date on which the order is granted unless the Court specifies
a shorter period of time or the Court terminates the order sooner.
(2) A dispositional order made before the child reaches eighteen (18) years of age
that places or continues the placement of the child outside of the home shall
terminate on the latest of the following dates, unless the Court specifies a shorter
period or the Court terminates the order sooner:
(A) The date on which the child attains eighteen (18) years of age;
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(B) The date that is one (1) year after the date on which the order is granted;
and
(C) The date on which the child is granted a high school or high school
equivalency diploma or the date on which the child reaches nineteen (19)
years of age, whichever occurs first, if the child is a full-time student at a
secondary school or its vocational or technical equivalent and is reasonably
expected to complete the program before reaching nineteen (19) years of
age.
(d) If the child is placed outside the home, a finding that continued placement of the child
in his or her home would be contrary to the welfare of the child and a finding as to whether
the Department has made reasonable efforts to prevent the removal of the child from the
home, while assuring that the child's best interests are the paramount concerns. The Court
shall make the findings specified in this subdivisionsubsection 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. Treatment PlansService 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 treatmentservice plan determined by the
Court to be necessary for the child's welfare.
(a) The treatmentservice 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
treatmentservice 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 treatmentservice plan, including the
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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 treatmentservice plan does not guarantee the
return of a child and that completion of a treatmentservice plan without a change in
behavior that caused removal in the first instance may result in the child remaining
outside the home.
(b) A treatmentservice 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;
(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, and the child if the child is age twelve (12) or
older.
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. The permanency plan shall include all of the following:
(a) The permanency plan shall include all of the following:
(1) The name, birth date, address, and tribal affiliation of the child;
(b2) The names, birth dates, addresses, and tribal affiliation of the child's parent(s),
guardian(s), and legal custodian(s);
(c3) The date on which the child was removed from the home;
(d4) A statement as to the availability of a safe and appropriate placement with an
extended family member;
(e5) 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;
(f6) Date by which it is likely the goal(s) of the permanency plan will likely be
achieved;
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(g7) 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;
(h8) 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;
(i9) Information about the child’s education; and
(j10) 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.
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 five (5) businessseven (7) days before the date of the hearing, the Department
shall provide a copy offile the updated permanency plan towith the Court and provide a
copy to the parties by first-class mail.
(b) All parties, including foster parent(s) shall have a right to be heard at the permanency
plan hearing. Any party may submit written comments to the Court no less than three (3)
business days prior to the hearing date.
708.23-4. After the hearing, the Court shall enter a written order addressing the following:
(a) The continuing necessity for and the safety and appropriateness of the placement;
(b) The compliance with the permanency plan by the Department and any other service
providers, the child’s parent(s), and the child;
(c) Efforts taken to involve appropriate service providers and Department staff in meeting
the special needs of the child and the child’s parent(s);
(d) The progress toward eliminating the causes for the child’s placement outside the home
and returning the child safely to the home or obtaining a permanent placement for the child;
(e) The date by which it is likely that the child will be returned to the home or placed for
adoption, with a guardian, with a fit and willing relative, or in some other permanent living
arrangement;
(f) Whether reasonable efforts were made by the Department to achieve the permanency
plan goal(s);
(g) Whether reasonable efforts were made by the Department to place the child in a
placement that enables the sibling group to remain together or have frequent visitation or
other ongoing interaction; and
(h) The date of the next review hearing, if appropriate.
708.24. Change in Placement
708.24-1. The Department, the Nation’s Child Welfare attorney, or a party to the dispositional
order may request a change in the placement of the child who is the subject of the dispositional
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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. Written noticeUpon filing with the Court, the Department shall provide a copy of the
proposedrequest for a change in placement shall be sent to all of the parties pursuant to the Oneida
Judiciary Rules of Civil Procedureby first-class mail.
(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. NoticeThe Department shall notify
the parties of the emergency change in placement shall be sent to the partiesby 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 seventytwo (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 i
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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.