- GENERAL
PROVISIONS
- DELINQUENCY
- CHINS
- DEPENDENCY
- TERMINATION OF PARENTAL RIGHTS
- ICWA
|
◄ I.
GENERAL PROVISIONS |
RULE 1 |
Scope. |
|
1(a) |
Cite.
These Rules shall be cited as "A.B.B.A.R.P." |
|
1(b) |
Application. These
Rules apply solely in court proceedings arising under the Navajo
Nation Álchíní Bi Beehaz’áannii Act unless stated otherwise. Matters not covered by these
Rules shall proceed according to Navajo Rules of Civil
Procedure. |
|
1(c) |
Restatement of A.B.B.A. These Rules gather and organize procedures and
substantive criteria set forth in the A.B.B.A. in order to
maximize simplicity in
application. In any conflict between these rules and the
A.B.B.A., the A.B.B.A. shall prevail. |
RULE 2 |
General Definitions |
|
2(a) |
A.B.B.A.
Álchíní Bi Beehaz’áannii Act. |
|
2(b) |
Adjudication. The decision of
the court, which determines the status of a child. |
|
2(c) |
Business Days.
Working days, normally Mondays to Fridays, not counting weekends
and court holidays and closures by
administrative order of the Chief Justice. |
|
2(d) |
Calendar Days.
Every day, including weekends and holidays. |
|
2(e) |
Complaint.
Information and/or allegations regarding a child prior to the filing of
a petition. |
|
2(f) |
Customary
Parenting. A
traditional Diné practice of kinship upbringing in which a child
is raised by a circle of kin with a primary responsible adult
other than the birth parents, who are unable to take on that
role. This method relies on a stable family circle and allows a
child to gain parents without losing the ones he or she already
has, while shifting primary parental responsibility to another
kin.
|
|
2(g) |
ICWA Application. An Application filed under the Indian
Child Welfare Act requesting a Navajo Nation court to
accept jurisdiction and transfer of a child's removal or
termination of parental rights proceeding from a foreign (state
or tribal) court. |
|
2(h) |
Kinship (k’é
dóó nidineshigii).
As used in kinship
placement and guardianship, kinship is broadly construed and
includes, but is not limited to, immediate, extended,
and
k’é ts’ǫ́sé family. |
|
2(i) |
Traditional Services. All
services provided by the Peacemaking Program,
including Hózhóji Naat’aah (Diné
Traditional Peacemaking),
Áłchíní BáNdazhnit’á (Diné
Family Group Conferencing),
and Nábináhaazláago Áłch’į’
yáti’ (Individual
or Group Life
Value Engagements). |
|
2(j) |
Ward of the Court. A
child under the continuing jurisdiction of the court.
The court obtains wardship over a child
when that child comes under the jurisdiction of the court following an
ICWA Application or petition
being filed or with a voluntary agreement attached. Such wardship continues until
jurisdiction terminates pursuant to the A.B.B.A. |
RULE 3 |
Commencement of Action. |
|
3(a) |
Filing.
An action under the A.B.B.A. is
commenced by the filing of a petition with the court in the name
of the child, or perfection of a foreign court transfer
following the filing of an ICWA
Application with the court. |
|
3(b) |
Separate Petitions.
Separate petitions
shall be required for each violation
in
delinquency and CHINS actions. |
|
3(c) |
Petition
Content.
Content and form of petitions shall be as
provided in the
A.B.B.A. |
|
3(d) |
Navajo Nation Petitions. Petitions
filed by the Navajo Nation shall be signed by the Prosecutor. In addition to the requirements of the
A.B.B.A.
the petition shall set forth the date and time the
complaint or referral was received by the
Prosecutor. |
|
3(e) |
Private Petitions.
Privately
filed dependency petitions or ICWA
Applications shall be signed by a member of the
Navajo Nation Bar Association or by a party pro se. |
RULE 4 |
Parties.
In
addition to the petitioner, the following are persons
whose presence in the action is required in the interests of
justice: |
|
4(a) |
Child. The child
who is the subject of the action is the named party in all pleadings
under the A.B.B.A. |
|
4(b) |
Parent(s), Guardian(s) or Custodian(s). The parent(s), guardian(s) and/or custodian(s) are necessary
parties in action to adjudicate a child delinquent, in need of
supervision or dependent, to terminate parental rights, and all other
matters arising under the A.B.B.A. |
|
4(c) |
Others. The court on
its own motion or upon a petition may designate as a necessary party and
other person whose presence is required in the interests of justice. |
|
4(d) |
Participation of a Necessary Party.
A necessary party is any person who is required under the
A.B.B.A. or under these rules to receive notice of the filing of
a petition or ICWA Application. |
|
4(e) |
Designation of Necessary Parties. The purpose of designating necessary parties is to permit
the court to make a full and complete adjudication of the matters before
it, to advise the necessary parties of the pending matters, and to
enable the court to enforce and carry out its orders. |
RULE 5 |
Service. |
|
5(a) |
Special Appointee.
Personal service
whether within or outside the Navajo Nation may be made by
special appointee of the presiding judge of the court in which
the action is filed. The special appointee shall be
a person eighteen years of age or older who is not a party or
legal counsel in the action. The motion for a special appointee
shall be submitted with the
petition. Any order granting the appointment shall be issued
with the summons. |
|
5(b) |
Ultimate Responsibility.
The Prosecutor shall
have the ultimate responsibility to effectuate or facilitate
diligent efforts for service, unless otherwise stated. |
|
5(c) |
Affidavit.
An affidavit of “diligent
efforts" shall be filed by the Prosecutor if service is unable
to be performed, including in the following situations: when a
necessary party's identity or location is unknown and there
is no permanent mailing address on file with the court, or their
location outside the boundaries of the Navajo Nation including
incarceration in another jurisdiction frustrates reasonable,
proper and timely service, or they otherwise cannot be found for
service to be performed. |
|
5(d) |
Diligent Efforts.
If the Court determines that
persons required to be served are unable to be
timely served
despite diligent efforts, the Court may proceed with the
hearing, continue the hearing, and/or appoint a guardian ad
litem. |
|
5(e) |
Electronic Service.
In
addition to methods of service set forth in 5(a) above, service
under the A.B.B.A. may be electronically transmitted via email
or fax that the party being served has provided for the specific
purpose of service in the pending matter.
Verification of successful
transmission, including an automated message of receipt, shall
be filed with the court.
The criteria for the ordering of alternative service at Nav. R.
Civ. P. 4(e)(2) shall not apply. |
|
5(f) |
Parental Waiver.
A parent may waive service in a voluntary proceeding, which
would have entitled them to receive a copy of the petition, an
opportunity to respond, receive hearing notices, and participate
in the proceedings. A
waiver shall be in a notarized writing, or a writing attested to
by two credible witnesses eighteen (18) years of age or older,
or may be verbally waived in open court, and may be withdrawn at
any time. |
RULE 6 |
Hearings. |
|
6(a) |
Consolidation.
The Court may not consolidate
hearings on the petition with other proceedings. Hearings on matters that are not on the merits may be
consolidated. |
|
6(b) |
Sequence.
Separate hearings may be held one after the other on
the same day. In delinquency actions, the detention hearing
shall proceed before, and may not be consolidated with, the
preliminary hearing, although both may be held on the same day.
|
|
6(c) |
Closed Hearings.
All hearings other than Delinquency
proceedings held pursuant to
provisions of the A.B.B.A. shall be closed to the public.
The Court may admit persons the Court finds to have a proper
interest in the case on the condition that they respect the
confidentiality of the proceedings. Delinquency hearings
shall be open to the general public except upon a finding of
exceptional circumstances. |
|
6(d) |
Electronic Appearance.
Appearances by counsel, parties and witnesses may be via
digitally recordable electronic video/audio, telephone and other
media upon written motion stating
good cause.
|
RULE 7 |
Evidence.
|
|
7(a) |
Detention and Custody.
The Court shall hear evidence
relevant and material to detention, protective custody, or
temporary custody,
even if otherwise inadmissible in a hearing on
the petition. |
|
7(b) |
On the Merits.
In all proceedings on the petition, the Court shall receive
relevant and material evidence in substantial conformity to the
Rules of Evidence.
An extra-judicial statement that would be inadmissible in a
criminal matter, and evidence
illegally seized or obtained shall not be received in evidence
to establish the allegations of a petition over objection.
|
|
7(c) |
Disposition.
In delinquency and CHINS cases, the
Court may consider all relevant and material evidence helpful in
determining disposition of the child following adjudication, including oral and
written reports, and may rely on such evidence to the extent of
its probative value even though not otherwise competent. |
RULE 8 |
Admissions.
The Court may accept admissions only if
corroborated by other evidence, or if stipulated by a
victim or eye-witness. |
RULE 9 |
Specific Findings.
Specific findings are required for all orders and judgments,
including determination of validity of admissions.
The Court may make findings as
circumstances require in order to obtain Title IV-E funds for
the support of a child or family. |
RULE 10 |
Guardian Ad Litem (GAL).
A GAL shall have access to and be provided,
without cost,
reports, records and other documents filed or made available to
the court in the matter appointed; shall inform the court on
matters regarding the background, environment and needs and
wishes of the child; shall appear at all proceedings to
represent the child's interests; shall be subject to the privacy
provisions of the A.B.B.A. and other laws; and shall not
disclose any information obtained pursuant to the duties of GAL
except pursuant to the orders and directives of the court. The
GAL may be discharged only by order of the court or by the
completion of the proceedings. In cases which remain under the
continuing jurisdiction of the court, the GAL shall
continue active participation in the proceedings and attend
all hearings. Upon discharge the guardian ad litem shall
return to the court all records pertaining to the case. |
RULE 11 |
Pre-Disposition Reports.
Pre-disposition
reports shall be ordered from Probation Services
or the Division and shall be submitted
to counsel, parties, and/or the GAL
at least five (5)
business days prior to any hearing in which they will be entered
in evidence. |
RULE 12 |
Sealing of Records.
Records sealed shall be the entire record of the case.
When sealed records are electronically stored, they shall be
stored on devices specifically set aside for sealed records. |
RULE 13 |
Filing Fees.
District Court filing fees for petitions filed by the
Navajo Nation shall be waived. |
RULE 14 |
CONDUCT OF HEARINGS.
All A.B.B.A. Hearings shall
be conducted as follows: |
|
REQUIRED AT EACH SEPARATE APPEARANCE |
1. |
Determine proper parties are present |
The Court shall ensure parties
are present, including ensure they are the proper
parties. |
2. |
Review Service |
The Court shall determine if service has been properly performed, or waived, or
otherwise settle all issues concerning service. |
3. |
Explain Proceedings |
The Court shall
ensure that all parties have
received copies of the petition or pleading and
understand their contents; advise the parties of the
nature of the proceedings and the possible outcomes. |
4. |
Advisement of Basic Rights |
The Court shall advise the
parties of their basic rights, including
the right to legal counsel at
all proceedings on the petition, the right to the
opportunity to introduce evidence and to be heard,
to confront and cross-examine witnesses, to obtain
discovery, and to admit or deny the allegations in the
petition. In delinquency and CHINS cases, the child has
a right against
self-incrimination, not
be questioned without the presence of a parent,
guardian, custodian or legal counsel.
Parties are to be informed
that they have no right to a jury trial under ABBA.
|
5. |
Requests for Counsel |
If counsel is requested at hearings other than
detention/protective custody hearings in delinquency and
CHINS actions, suspend the proceedings and
grant a continuance within any prescribed time limits for purposes
of securing counsel. If indigency is found
pursuant to
9 N.N.C.
§ 1310(A), the Court shall appoint a public
defender or a member of the Navajo Nation Bar Association, where
appropriate. |
6. |
Guardian ad Litem (GAL) |
At the earliest
opportunity, the Court
shall determine if a guardian ad litem is needed by
making a preliminary finding whether the child’s
interests are adequately represented. Thereafter,
at any time during the proceedings, the Court may
appoint a guardian ad litem if the child has no parent, guardian
or custodian appearing on behalf of the child or if his/her
interests conflicts with those of his/her parent, guardian or
custodian, or if the Court determines that the parent, guardian
or custodian of the child is in no position to exercise
effective guardianship, or if otherwise in the child's best
interest. |
|
|
a.
Appointment of NNBA Members as GALs. Pursuant
to the Navajo Pro Bono Rules, Rule 4 and 5,
Courts may appoint NNBA members as guardians ad litem
only upon a specific finding that a legally trained
guardian ad litem is required.
No pro bono appointment shall be made if the person for
whom the appointment is sought has resources that, if
used, would enable the person to hire his or her own
counsel. |
7. |
Psychological Exam of Child |
Where there is an indication that the child may be
mentally ill or mentally disabled, the Court or any
party may move for an
order that the child be examined by a psychiatrist or
psychologist prior to a hearing on the merits and/or as part of the predisposition
study and report. |
SETTLEMENT |
8. |
Settlement |
At any time prior
to adjudication, the Court may encourage the parties to
pursue settlement in lieu of adjudication, including
having the parties develop a plan
among themselves, or
nályééh through traditional services. Upon the signing of a plan
or agreement, proceedings may be suspended by
motion and the plan put in place.
|
9. |
Referral to Traditional Services |
The Court may refer
parties to traditional
services at any time for any purpose, including to
educate the parties in order to facilitate a plan or
prepare them for settlement.
Attendance at life value
engagements may be mandated without consent in order to
teach traditional Diné principles, while active
participation is up to the individuals.
|
10. |
Concurrence for Immediate Disposition |
With the
concurrence of the parties, the Court may proceed
immediately to disposition upon settlement or admission.
If there is no concurrence, a pre-disposition report
shall be ordered and a disposition hearing shall be
scheduled. |
MERITS |
11. |
Review Responsive Pleadings, if any |
If there is no
settlement, the Court shall proceed to the merits,
beginning with reviewing any responsive pleading with
the parties. |
12. |
Narrow the Issues |
As circumstances
requires, the Court shall narrow the issues prior to
settlement or any hearing on the merits. |
13. |
Opportunity to Admit/Deny or Change Plea
or Position |
At both
preliminary and adjudicative hearings, if it
appears that the child and/or parties understands the proceedings and wishes
to proceed, or if requested counsel has been secured, the
Court may inquire whether the child and/or parties admits or denies the alleged
violations or charges, or wish to change an entered plea
or position before proceeding on the merits. |
14. |
Receive Evidence and Testimony |
The Court shall
receive testimony and/or evidence as required by the type of
proceeding in compliance with evidentiary standards set forth in
these rules. |
15. |
Findings |
The determinations of
the Court upon receiving evidence shall be based on standards of
proof and criteria set forth for the particular proceeding in
these rules. The Court may make verbal findings immediately
after receiving evidence. |
16. |
Concurrence for Immediate Disposition |
With the
concurrence of the parties, the Court may proceed
immediately to disposition upon admission or
adjudication. If there is no concurrence, a
pre-disposition report shall be ordered and a
disposition hearing shall be scheduled. |
17. |
Thirty-Day Psychological Placement |
In delinquencies
and CHINS, the Court may order that the child be
transferred to an appropriate facility for no more than thirty
(30) calendar days for purposes of diagnosis, and further order
that a written report containing the
recommended disposition be filed with the Court. |
18. |
Pre-Disposition Reports and Other Evidence Relevant to
Disposition |
If a disposition
hearing is necessary, pre-disposition reports and other
evidence relevant to disposition are ordered. |
19. |
Disposition |
|
REVIEW |
|
◄
II.
DELINQUENCY
PROCEEDINGS |
RULE 15 |
Caseflow and Deadlines. |
|
|
Event/Filing/Order |
Deadlines |
If deadline is missed: |
1. |
Diversion |
Optional. Agreed to between
the child and the Prosecutor for self-responsibility in
lieu of petition filing. Shall be monitored by Probation
Services. |
|
2. |
Petition Filing |
(a) Shall be filed within thirty (30) calendar days of
preliminary inquiry.
The Court may
authorize the Prosecutor to re-file within twenty (20) calendar
days of a dismissal upon a showing of due diligence.
|
Dismissal with prejudice |
(b)
Child in Detention: If the child is arrested and detained and further detention is sought,
the A.B.B.A. provides that the petition shall be filed
within two (2) business days
of detention.
|
Child shall be released |
3. |
Responsive Pleadings |
Shall be filed pursuant to Section III, Nav. R. Civ. P. |
|
4. |
Detention Hearing |
Shall be held within one (1) business day of the
filing of the petition. |
Child shall be released |
5. |
Temporary Detention Order |
Shall be issued within three (3) business days of when
the child was detained.
|
|
6. |
Hearing to Transfer Child to Adult Court |
Optional. Shall be scheduled when the Prosecutor moves
to transfer a child aged sixteen (16) or older to adult
court prior to a hearing on the merits. |
|
7. |
Preliminary Hearing |
(a) If the child is
not detained, shall be held within twenty (20) calendar days of the filing of
the petition.
Continuance may not exceed twenty (20) calendar days.
Opportunity for plea and settlement. Disposition may
immediately follow. |
Dismissal with prejudice |
(b)
Child in Detention:
If the child is in detention,
shall be held within ten (10) calendar days of the filing of the
petition.
Continuance may not exceed ten (10)
calendar
days. Opportunity for plea and
settlement. Disposition may immediately follow. |
Dismissal with prejudice |
8. |
Consent Decree |
May be agreed to at any time prior to adjudication.
Prior to or as part of the agreement, the child may be
referred to traditional services for self-responsibility
education. |
|
9. |
Adjudicatory Hearing |
Should be held within thirty (30) calendar days of the
preliminary hearing.
Opportunity for change of plea and settlement prior to
receiving evidence.
Disposition may immediately follow. |
|
10. |
Nályééh/Sentencing |
The Court may refer
nályééh and sentencing to traditional services,
with the victim's concurrence and participation. |
|
11. |
Disposition Hearing |
Should be held without unreasonable delay. |
|
11. |
Petition for Revocation of Probation |
Is filed as an original proceeding by the Prosecutor
upon violation of a probation condition; service
requirements apply. |
|
|
(a) |
Revocation Hearing |
As a new A.B.B.A. proceeding, Section III, Nav. R. Civ.
P. responsive pleading and ABBARP Rule 14 hearing
procedures apply. |
|
|
RULE 16 |
Standards and Criteria of Proof. |
|
16(a) |
Detention Hearing -- Probable Cause |
|
To hold a child pending
adjudication,
the Court
shall determine if probable cause exists to believe
that: |
|
1. |
If not in custody, the child will commit injury to persons
or property of others, or cause injury to himself/herself or
be subject to injury by others; or |
|
2. |
The child has no parent(s), guardian(s) or custodian(s) able
to provide adequate supervision and care for the child; or |
|
3. |
The child will run away or be taken away so as to be
unavailable for proceedings of the Court or its officers. |
|
16(b) |
Hearing to Transfer Child to Adult Court -- Clear
and Convincing Evidence |
|
To justify transferring a
child aged sixteen (16) or older to be tried as an
adult,
the Court shall
determine,
based on clear and convincing evidence, that there are
reasonable grounds to believe that
all of the following criteria
exist: |
|
1. |
A delinquent act was committed by the
child, and |
|
2. |
The child is not amenable to treatment
or rehabilitation as a child through available
resources, and
|
|
3. |
The child has a history of
delinquent offenses or history of probation violations or a
record of felony offenses, and |
|
4. |
The child is not committable to
an institution for the mentally disabled or mentally ill;
and |
|
5. |
The child
is a danger to the public or him/herself and transfer to
the adult Court would be in the child’s best interest.
|
|
16(c) |
Preliminary Hearing -- Probable Cause |
|
If the child
denies or admits to only a portion of the allegations, the Court
may proceed to hear
evidence relevant and material to the charge in order to
determine whether probable cause exists that the delinquent act
occurred. |
|
16(d) |
Adjudicatory Hearing -- Proof Beyond a Reasonable
Doubt |
|
If the child
maintains denial, the Court shall hear evidence relevant and material to the
charge in order to determine whether the child committed the
delinquent act beyond reasonable doubt. |
|
16(e) |
Disposition, Care and Rehabilitation Determination
-- Rebuttable Presumption; Preponderance of the Evidence |
|
|
|
Rebuttable Presumption.
If the delinquent act admitted would constitute a
federal felony,
there is a rebuttable presumption that the child is in
need of care or rehabilitation. The child shall be given
an opportunity to rebut. |
|
|
|
Considering all relevant and material evidence
helpful in making a care and rehabilitation
determination for the child, including oral and written
reports, and relying on such evidence to the extent of
its probative value even though not otherwise competent,
the Court may make the following
dispositions with a finding, by preponderance of the
evidence, that the selected disposition will best serve
rehabilitative ends and is appropriate to the needs of
the child and the protection of the community: |
|
1. |
Any
fine or sentence that does not exceed the fine and/or
sentence that could have been imposed for an adult on
the same charge; |
|
2. |
Transfer legal custody to an appropriate agency, in which case the Court
shall transmit all
information pertinent to care and treatment of
the child with the disposition order.
The agency shall be subject to monitoring by Probation
and Parole Services; |
|
3. |
Place the child on probation for up to one (1) year
under supervision of Probation Services. |
|
4. |
Upon a specific finding of
necessity,
order a child over the age of eight years old to
detention for up to one (1) year.
|
|
16(f) |
Probation Revocation
Hearing -- Proof Beyond a Reasonable
Doubt |
|
The Court shall determine whether a condition of
probation has been violated beyond a reasonable
doubt. |
|
|
RULE 17 |
Specific Provisions. |
|
17(a) |
Consent Decree.
A consent decree may
remain in force for up to six (6) months, extendable up to three
(3) months.
The
child has thirty (30) calendar days after entry of
the consent decree to object; otherwise the child shall be held
to its conditions. |
|
17(b) |
Release Order Pending Adjudication. If no probable cause exists
for temporary detention, the Court may order
conditional, restricted,
supervised, or unrestricted release as the circumstances warrant
and shall provide an explanation in specific findings. |
|
17(c) |
Release Orders, Generally.
Release orders shall issue immediately following the Court's
relevant findings. |
|
17(d) |
Hearing to Transfer Child to
Adult Court. If the Prosecutor files a motion to
transfer a child aged sixteen (16) or older to adult court,
notice shall be sent at least three (3) days prior to the
hearing, and a
pre-dispositional report specific to the transfer-justification
criteria shall be ordered.
|
|
17(e) |
Case Management.
A probation officer shall be
assigned to case manage and monitor the well-being of any
child ordered into detention. |
|
17(f) |
Disposition Hearing
is necessary if there is no
concurrence to dispose of the child immediately following
admission or adjudication, and the Court lacks adequate
information upon which to enter an informed disposition order.
|
|
|
(i) |
Pre-Disposition Report.
The Court shall order a pre-disposition report
or any other reports or studies prior to the disposition
hearing. |
|
|
(ii) |
Continuance to Receive Reports.
By motion of a party or the Court, the hearing may be continued
for a reasonable time to receive reports and other evidence
bearing on the need for care or rehabilitation or in connection
with disposition. The Court shall continue the hearing pending
the receipt of the predisposition study and report if that
document has not been prepared and received. During any
continuance under this Section, the Court shall make an
appropriate order for detention or legal custody. |
|
17(g) |
Probation Revocation
Hearing |
|
|
(i) |
Petition.
A
"Petition to Revoke Probation" shall be filed as an original
proceeding with reference to the initial proceeding.
|
|
|
(ii) |
Sentencing Limits.
If
the Court finds at a hearing, beyond reasonable doubt, that the
extension is necessary to protect the community or to safeguard
the welfare of the child, probation may be extended for up to
one (1) year. Otherwise, probation may be extended for three (3)
months upon a finding of violation, or the Court may make any other judgment or disposition
consistent with that of the original disposition of the case.
Detention may only be ordered if it could have been imposed on
an adult on the same original charge. |
◄
III.
CHILD IN NEED OF SUPERVISION PROCEEDINGS |
RULE 18 |
Caseflow and Deadlines. |
|
|
Event/Filing/Order |
Deadlines |
If deadline is missed: |
1. |
Diversion |
Optional. Agreed to
between the child and the Prosecutor for
self-responsibility in lieu of petition filing. Shall be
monitored by Probation Services. |
|
2. |
Notice of Initial Hold |
Shall be provided to the Court and the child's
parent(s), guardian(s), or custodian(s) within three (3)
business days of the child being taken into protective
custody. |
Child shall be released |
3. |
Petition |
(a) |
Shall be filed within thirty (30) calendar days of
preliminary inquiry.
The Court may
authorize the Prosecutor to re-file within twenty (20) calendar
days of a dismissal upon a showing of due diligence.
|
Dismissal with prejudice |
(b) |
Child in Custody: Shall be filed within two (2) business
days of the child being taken into protective custody.
|
Child shall be released |
4. |
Responsive Pleadings |
Shall be filed pursuant to Section III, Nav. R. Civ. P. |
|
5. |
Protective Custody Hearing |
Shall be held within one (1) business day of the
filing of the petition. |
Child shall be released |
6. |
Temporary Custody Order |
Shall be
issued within
three (3) business days of when the child was taken into
protective custody.
|
Child shall be released |
7. |
Preliminary Hearing |
(a) |
If the child is
not in protective custody, shall be held within twenty (20) calendar days of the filing of
the petition.
Continuance may not exceed twenty (20) calendar days.
Opportunity for plea and settlement. Disposition may
immediately follow |
Dismissal with prejudice |
(b) |
Child in Custody:
If the child is in protective custody,
shall be held within ten (10) calendar days of the filing of the
petition.
Continuance may not exceed ten (10)
calendar
days. Opportunity for plea and
settlement. Disposition may immediately follow. |
Dismissal with prejudice |
8. |
Consent Decree |
May be agreed to at any time prior to adjudication.
Prior to or as part of the agreement, the child may be
referred to traditional services for self-responsibility
education. |
|
9. |
Adjudicatory Hearing |
Should be held within thirty (30) calendar days of the
preliminary hearing.
Opportunity for change of plea and settlement prior to
receiving evidence.
Disposition may immediately follow. |
|
10. |
Nályééh/Sentencing |
The Court may refer
nályééh and sentencing to traditional services,
with the victim's concurrence and participation. |
|
11. |
Disposition Hearing |
Should be held without unreasonable delay. |
|
12. |
Show Cause Hearing |
Is held to consider the issuance of a civil contempt
order if a child violates a valid court order |
|
|
RULE 19 |
Standards and Criteria of Proof. |
|
19(a) |
Protective Custody Hearing -- Probable Cause |
|
To hold a child pending
adjudication,
the Court
shall determine if probable cause exists to believe
that: |
|
1. |
If not in custody, the child will commit injury to persons
or property of others, or cause injury to himself/herself or
be subject to injury by others; or |
|
2. |
The child has no parent(s), guardian(s) or custodian(s) able
to provide adequate supervision and care for the child; or |
|
3. |
The child will run away or be taken away so as to be
unavailable for proceedings of the Court or its officers. |
|
19(b) |
Preliminary Hearing -- Probable Cause |
|
If the child denies or admits
to only a portion of the allegations, the Court may proceed to
hear evidence relevant and material to the charge in order to
determine whether probable cause exists that the child: |
|
1. |
Being
subject to compulsory school attendance, is consistently absent
or tardy from school; or |
|
2. |
Consistently
disobeys the reasonable and lawful parental demands or demands
of school personnel and is beyond control; or |
|
3. |
Has
committed a civil traffic infraction under Title 14; or |
|
4. |
Has
committed other non-criminal offenses under Navajo Law. |
|
19(c) |
Adjudicatory Hearing -- Clear and Convincing
Evidence |
|
If the child
maintains denial, the Court shall hear evidence relevant and material to the
charge in order to determine, by clear and convincing evidence, whether the child
is in need of supervision. |
|
19(d) |
Disposition, Care and Rehabilitation Determination
-- Preponderance of the Evidence |
|
Considering all relevant and material evidence helpful
in making a care and rehabilitation determination for
the child, including oral and written reports, and
relying on such evidence to the extent of its probative
value even though not otherwise competent, the
Court may make the following dispositions with a
finding, by preponderance of the evidence, that the
selected disposition will best serve rehabilitative ends
and is appropriate to the needs of the child and the
protection of the community: |
|
1. |
Any disposition that is authorized for a dependent child; |
|
2. |
Transfer legal custody to an appropriate agency, in which case the Court
shall transmit all
information pertinent to care and treatment of
the child with the disposition order.
The agency shall be subject to monitoring by Probation
and Parole Services; |
|
3. |
Place the child under Court supervision. |
|
19(e) |
Show Cause Hearing
-- Clear and Convincing Evidence |
|
The Court shall determine whether a court order
has been violated by clear and convincing
evidence. |
|
|
RULE 20 |
Specific Provisions. |
|
20(a) |
Consent Decree.
A consent decree may
remain in force for up to six (6) months, extendable up to three
(3) months.
The
child has thirty (30) calendar days after entry of
the consent decree to object; otherwise the child shall be held
to its conditions. |
|
20(b) |
Hearing Officer.
The protective
custody hearing may be presided by a Hearing Officer appointed
by the Court.
|
|
20(c) |
Temporary Custody Order.
Any temporary
custody order shall be issued within three (3) business days of when the
child was taken into protective custody. The Court may order
protective custody to a foster home, kinship placement, a
facility, or any other suitable place other than a facility
designated for delinquent children. |
|
20(d) |
Release Order Pending Adjudication.
If no probable cause exists
to hold the child pending adjudication, the
Court may order the child released with a requirement that the child be placed in
kinship custody, agency supervision, or impose conditions such
as restriction on travel, place of residence, and association as the
circumstances warrant so long as an explanation is provided. |
|
20(e) |
Release Orders, Generally.
Release orders shall issue immediately following the Court's
relevant findings. |
|
20(f) |
Case Management.
A probation officer shall be
assigned to case manage and monitor the well-being of any
child ordered into protective custody. |
|
20(g) |
Disposition Hearing
is necessary if there is no
concurrence to dispose of the child immediately following
admission or adjudication, and the Court lacks adequate
information upon which to immediately enter an informed disposition order.
|
|
|
(i) |
Pre-Disposition Report.
The Court shall order a pre-disposition report
or any other reports or studies prior to the disposition
hearing. |
|
|
(ii) |
Continuance to Receive Reports.
By motion of a party or the Court, the hearing may be continued
for a reasonable time to receive reports and other evidence
bearing on the need for care or rehabilitation or in connection
with disposition. The Court shall continue the hearing pending
the receipt of the predisposition study and report if that
document has not been prepared and received. During any
continuance under this Section, the Court shall make an
appropriate order for detention or legal custody. |
|
20(h) |
Notification of Change of Placement.
The agency responsible for placement
(either Probation Services or
the Division) shall
contact the Prosecutor in writing to file a Notice of Change of
Placement or to Request Hearing if a child is to be removed from initial placement. |
|
20(i) |
Show Cause Hearing. |
|
|
(i) |
Violations of Court Orders.
The Court
may hold an order to show cause hearing and issue a
civil contempt
order if a child violates a valid court order.
|
|
|
(ii) |
Detention Prohibited.
Options
to address the child's compliance shall not include detention. |
|
|
(iii) |
Escalation to Delinquency.
The
Prosecutor may file a delinquency proceeding for a child's
continued violations of court orders after all possible options
have been considered, which may be
granted at the court's discretion. |
◄
IV.
DEPENDENCY PROCEEDINGS |
RULE 21 |
Caseflow and Deadlines. |
|
|
Event/Filing/Orders |
Deadline |
If deadline is missed: |
1. |
(a) |
Application for Recognition of Voluntary Placement Agreement |
An Application for Recognition of Voluntary Placement
Agreement shall be filed by the Prosecutor within ten
(10) calendar days of the signing of the agreement. |
|
(b) |
Issuance of Recognition Order |
The Court may summarily issue an order recognizing the
voluntary palcement agreement. |
|
(c) |
Status Hearing on the Voluntary Placement |
Shall be scheduled no more than
one hundred and fifty (150) days from the date the
agreement was recognized by the Court. |
|
(c) |
Best Interests/Reasonable Efforts Determination on the
Voluntary Placement |
Shall
be issued by the Court before the 179th day of voluntary placement.
If family is not reunified,
matter shall be referred to Prosecutor for dependency
filing. |
Child’s placement may not be funded past one hundred and
eighty (180) days |
2. |
Referral by Division to Prosecutor |
Shall be within three (3)
calendar days of removal of the child, for petition filing |
Child shall be returned home |
3. |
Petition |
Shall be filed by the Prosecutor within one (1) business
day of the Division's referral. |
Child shall be returned home |
4. |
Responsive Pleadings |
Shall be filed pursuant to Section III, Nav. R. Civ. P. |
|
5. |
Shelter Care Hearing |
Shall be scheduled within one (1) business day of the
filing of a Motion for Temporary Custody by the
Prosecutor when a child has been removed. The motion
shall be filed within four
(4)
business
days of removal or concurrently with
the petition. Continuances for service or for parties to
obtain counsel may be for no
more than fifteen (15) calendar days. |
Child shall be returned home |
6. |
Temporary Custody
Order |
Shall be
issued within five (5)
business days of the child's removal; shall include a best
interests/reasonable efforts determination regarding
prevention of removal. |
Child shall be returned home |
7. |
Best Interests/Reasonable Efforts Determination |
(a) |
An initial reasonable efforts determination shall in no event be
issued beyond sixty (60) calendar days of the child's removal.
|
Child shall be returned home |
(b) |
Shall be included in every order determining the child's
custody, including temporary orders. |
|
(c) |
Conclusive
Finding that Reasonable Efforts Unnecessary.
If the Court finds by clear and convincing evidence that reasonable efforts to
reunite the family are unnecessary due to
futility or aggravated circumstances,
a permanency review hearing shall be held within thirty
(30) calendar days of the determination. A conclusive
finding of futility to reunite the family should not be
made in an initial custody order. |
|
8. |
Provisional Hearing |
Shall be held when a parent, guardian, custodian or immediate relative cannot be found
and fails to appear after service by publication has been effectuated.
The Court shall enter an interlocutory dispositional order,
effective for up to six (6) months, making findings on the
allegations of dependency, determining legal custody and
services for the child, and continuing efforts for parental
notification.
If
failure to appear
persists within the six (6) month period, the order shall become final
following a dispositional hearing.
If parent(s), guardian(s) or custodian(s) appears within the
six (6)
month period, the Court shall hold an adjudicatory and
dispositional hearing. |
|
9. |
Education/Settlement/Informal Adjustment |
At any time prior to adjudication, the parties may
settle. The Court may refer the case to traditional
services to facilitate self-responsibility, settlement
and informal adjustment. |
|
10. |
Preliminary Hearing |
Shall be scheduled within fifteen (15) calendar days of the
shelter care hearing.
If there is no settlement, the
Court shall schedule an adjudicatory hearing. |
Dismissal without prejudice |
11. |
Adjudicatory Hearing |
Shall be scheduled within thirty (30) calendar days of the
preliminary hearing if there is no settlement. |
Dismissal without prejudice |
12. |
Disposition Hearing |
Shall commence no later
than thirty (30) calendar days from the adjudicatory hearing.
The hearing may be continued no more than ten (10)
calendar days to receive reports and other evidence.
During any continuance, the Court shall issue an appropriate
order for temporary legal custody. |
|
13. |
Permanency Review Hearings |
Initial Review Hearing. Shall be held within six (6) months from the date of the child's removal and
every six (6) months thereafter until entry of judgment.
Subsequent Review Hearings.
Shall
be held: • six (6) months after
a judicial finding of abuse
or neglect and every six (6)
months thereafter; •
within thirty (30) calendar days of a
judicial finding that reasonable efforts to reunite or
preserve the family are futile;
• within twelve (12) months of the child entering
placement. |
|
|
RULE 22 |
Standards and Criteria of Proof. |
|
22(a) |
Shelter Care Hearing -- Probable Cause;
Clear and Convincing Evidence for Best
Interests/Reasonable Efforts Determination |
|
|
|
|
(i) |
Probable Cause.
The Court shall
determine if probable cause exists to believe
that: |
|
|
1. |
If not in custody, the child will commit injury to persons
or property of others, or cause injury to himself/herself or
be subject to injury by others; or |
|
|
2. |
The child has no parent(s), guardian(s) or custodian(s) able
to provide adequate supervision and care for the child; or |
|
|
3. |
The child will run away or be taken away so as to be
unavailable for proceedings of the Court or its officers; or |
|
|
4. |
The health and safety of the child cannot be assured if the
child is not kept in custody. |
|
|
|
|
(ii) |
Clear and Convincing
Evidence, Best Interests.
The Court shall determine by
clear and convincing evidence: |
|
|
1. |
That
out of home placement would be in the best interest of
the child; or |
|
|
2. |
That
remaining in the current residence is contrary to the
welfare of the child. |
|
|
|
|
(iii) |
Clear and Convincing
Evidence, Reasonable Efforts to Prevent Removal or
Reunite.
See Rule 22(c). |
|
22(b) |
Preliminary Hearing --
Settlement |
|
The
primary purpose of the preliminary hearing is to pursue
non-adjudicatory resolutions including admissions or settlement or, failing that, ensure the parties
understand the proceedings and are prepared for trial.
The Court shall engage the parties in considering alternative
processes, i.e. informal adjustments, dismissal, or traditional
services. |
|
22(c) |
Reasonable Efforts Determination --
Conclusive Finding, Clear and Convincing Evidence |
|
(i) |
At any custody
determination following the initial custody hearing, the
Court shall determine by clear and convincing evidence,
whether: |
|
|
1. |
Reasonable efforts to preserve or reunite the family
have been offered to the family; or |
|
|
2. |
Reasonable efforts to preserve or reunite
the family are futile, including due to parental
subjection of the child to aggravated circumstances as
specifically set forth in the determination. |
|
|
|
|
(ii) |
Clear and Convincing Evidence, Aggravated
Circumstances. Aggravated circumstances under section
(i) above shall be shown to exist by clear and
convincing evidence.
“Aggravated Circumstances” means any factor involved in
the commission of an act of abuse or neglect that
increases its enormity or adds to its injurious
consequences, including, but not limited to,
abandonment, torture, chronic abuse, or sexual abuse.
Aggravated circumstances shall include, but not be
limited to, that the parent has: |
|
|
1. |
Committed murder of another child of the parent; or |
|
|
2. |
Committed voluntary manslaughter of another child of the
parent; or |
|
|
3. |
Aided or abetted, attempted, conspired or solicited to
commit such a murder or voluntary manslaughter; or |
|
|
4. |
Committed a felony assault that results in serious
bodily injury to the child or another child of the
parent; or |
|
|
5. |
Had
his/her parental rights terminated involuntarily to a
sibling of the subject child. |
|
22(d) |
Adjudicatory Hearing -- Clear and Convincing
Evidence |
|
After giving
the parties a further opportunity to admit or deny, the Court
shall determine whether, by clear and convincing evidence, the
child is dependent because the child's
parent(s), guardian(s) or custodian(s): |
|
1. |
Has abandoned the child; or |
|
2. |
Has failed to provide adequate or proper parental care and
control due to faults, habits, neglect or refusal to provide
for the child's subsistence, education or medical care
necessary for the child's well-being; or |
|
3. |
Are
unable to discharge his/her parental responsibilities
because of incarceration, hospitalization or other physical
or mental incapacity; or |
|
4. |
Has placed the child for care or adoption in violation of
Navajo or federal law; or |
|
5. |
Has physically, emotionally, psychologically or sexually
abused the child, or another person has abused the child due
to inadequate parental control; or |
|
6. |
Has sexually exploited the child, or another person has
sexually exploited the child due to inadequate parental
control; or |
|
7. |
Has
knowingly, intentionally or negligently: |
|
|
a.
Placed
the child in a situation that may endanger his/her life or
health; or |
|
|
b.
Tortured,
cruelly confined or cruelly punished him or her. |
|
22(e) |
Disposition -- Best Interest of
the Child; Clear and Convincing Evidence for Out of Home
Placement; Compelling Reasons Not to Consider Kinship
Placement |
|
|
|
(i) |
Best Interest Determination. The Court may make the
following dispositions with a specific finding that it
in the best interest of the child: |
|
|
1. |
Permit the child to remain with his/her parent(s),
guardian(s) or custodian(s) subject to conditions and
limitations prescribed by the Court, including protective
supervision by the Division; |
|
|
2. |
Transfer and
maintain legal custody of the child to the Division for
appropriate kinship or foster placement pursuant to a case
plan that may include a likely date the child may be
returned and safely maintained at home or, otherwise, a
permanency or alternate permanency plan; |
|
|
3. |
Any other disposition as may be necessary to serve the best
interests of the child. |
|
|
|
(ii) |
Clear and Convincing Evidence.
If out of home placement is ordered, the Court shall make
the following detailed and supported findings
on the basis of clear and convincing evidence: |
|
|
1. |
That return
of the child would be contrary to the welfare of the child;
and |
|
|
2. |
Reasonable efforts have been made to prevent continued
removal of the child; or
|
|
|
3. |
Reasonable efforts are unnecessary
because of futility or
the child
has been subjected by parent(s), guardian(s), or
custodian(s) to aggravated circumstances as
specifically set forth in the determination. |
|
|
|
|
|
(iii) |
Compelling Reasons Not To Reunify Or Consider Kinship
Placement.
If the Division's case plan does not include either reunification,
adoption, customary parenting, guardianship or placement with a fit and willing
relative, the Court shall determine whether compelling reasons
exist to find that these placements are
not in the best
interest of the child. |
|
|
|
|
|
(iv) |
Reasonable Rights of Visitation. If continued
custody is ordered, the
Court’s order shall provide that the parent(s), guardian(s),
custodian(s) or other family members shall have reasonable
rights of visitation unless the Court finds that the best
interests of the child preclude any such visitation. |
|
|
RULE 23 |
Specific Provisions. |
|
23(a) |
Voluntary Placement
Agreement.
|
|
|
(i) |
Recognition.
An
Application for Recognition of Voluntary Placement Agreement
shall be filed by the Prosecutor within ten (10) calendar days
of the signing of the agreement. The agreement shall be attached
to the application
and
may include voluntary placement in customary parenting. |
|
|
(ii) |
Issuance of Recognition Order.
The Court may summarily issue an order recognizing the voluntary
placement agreement. |
|
|
(iii) |
Notice of Status Hearing.
The clerk of the
court shall schedule a status hearing
no later than one hundred and fifty (150) days from the date the
agreement was recognized by the Court. The notice of hearing shall
be given to the Prosecutor, which shall ensure service of the
notice. |
|
|
(iv) |
Motion to Vacate.
The Prosecutor may move to vacate the status hearing
if the child has been returned home. |
|
|
(vi) |
Status Hearing. The
Court shall receive evidence in order to make a best
interests/reasonable efforts determination, which shall be
issued within
one hundred and seventy-nine (179) days
of voluntary placement. Upon the
Court's determination that the continued out of
home placement is in the child’s best interest and that
reasonable efforts to prevent removal were made or are not
required, the Division shall refer the case to the
Prosecutor for filing of a dependency petition. |
|
23(b) |
Service.
|
|
|
(i) |
Immediate Relative.
Service may also
be performed on immediate family if parent(s), guardian(s), or
custodian(s) are unable to be found. |
|
|
(ii) |
Publication Service.
If parents, guardians,
custodians, or an immediate relative cannot be served by
personal service, mail, or electronic service, an order for publication
service is mandatory. |
|
|
(iii) |
Service of Shelter Care Notice.
So long as the
notice of shelter care hearing is served, the motion for shelter care hearing /
temporary custody need not be served. |
|
23(c) |
Hearing Officer.
The Court may appoint a hearing officer solely to recommend
findings on custody. |
|
23(d) |
Informal Adjustment.
"Informal adjustment"
is a settlement plan that may
remain in force for up to six (6) months, extendable up to three
(3) months. The signed plan may be
implemented by motion of the Prosecutor with Division
concurrence when suspension is in the best interest of the
child, and the child's health and safety is protected. |
|
23(e) |
Protective Supervision.
If the Court orders the child returned home, the Court
may order protective supervision. |
|
23(f) |
Contents of Pre-Disposition Report.
In addition
to criteria set forth at 9 N.N.C.
§ 1112(B), the pre-disposition report shall include
a
culturally specific assessment obtained in consultation with the
Peacemaking Program in the case plan as a permanency placement
option in the event reunification is not in the child's best
interest. |
|
23(g) |
Regional Children's Review Board.
|
|
|
(i) |
Referral.
After conducting the first review and
permanency hearings, the Court may refer subsequent review
hearings to a Regional Children's Review Board. In long-term
placements, the Court shall contact the Division for case assignment to
an appropriate Regional Children’s Review Board for review
of long-term
out-of-home placements.
|
|
|
(ii) |
Objections.
Parties objecting to the Board's
periodic case review(s) may request a court hearing. |
|
23(h) |
Notification of Change of Placement.
If, after the Court's initial placement order it becomes
necessary for placement to change, the Prosecutor shall provide
written notification of any modification in placement to the Court. |
RULE 24 |
Customary
Parenting. |
|
24(a) |
Circle; Primary Responsible Adult.
The circle of
customary parents shall be identified, and there shall be one
primary responsible adult chosen by the circle to be the
custodian of the child and who shall be the designated recipient
of federal, tribal and state benefits on behalf of the child.
|
|
24(b) |
Best Interest of the Family.
Decisions made regarding the child shall, as far as
possible, be made unanimously by the circle, with the
recognition that the birth parents are unable to perform as
parents for any number of reasons and require the compassion and
assistance of the circle. In practice, decisionmaking is made by
the family itself, looking to the best interest of the family as
a whole in order to further the family’s future survival and
holistic health, which is a basic right of all Diné children.
The final decisionmaker shall be the primary responsible adult.
|
|
24(c) |
Reasonable Efforts Determination.
All reasonable efforts
at reunification pursuant to 9 N.N.C. § 1113(F) shall include
consultation with the Peacemaking Program as to whether
customary parenting can be supported by the existing family
structure, or be nurtured into such a structure through
provision of traditional services.
|
|
24(d) |
Culturally Specific Assessment. All pre-disposition plans and case plans developed
by the Division shall include a culturally specific assessment
pursuant to 9 N.N.C. §1112(B)(2) developed in consultation with
the Peacemaking Program. |
|
24(e) |
Preferred Option.
Customary parenting is
the preferred option to suspension of parental rights through a
formal guardianship, or termination of parental rights (TPR) |
|
24(f) |
Alternative Permanency Plan.
Kinship placement and
customary parenting may be included as alternative permanency
plans to family reunification throughout a dependency,
termination of parental rights, or ICWA case. |
|
24(g) |
Application in Private Actions.
This section applies to all customary parenting actions,
including those not arising under the A.B.B.A. In private
stipulated customary arrangements and voluntary placement
agreements, the family may enter into agreements directly
through the Peacemaking Program and file the agreement for
recognition with the Court. |
◄
V.
TERMINATION OF PARENT-CHILD RELATIONSHIP
(TPR) |
RULE 25 |
Caseflow and Deadlines. |
|
|
Event/Filing/Orders |
Deadline |
If deadline is missed: |
1. |
Petition |
The Prosecutor shall file a petition (or, if such a
petition has been filed by another party, seek to be
joined as a party to the petition) to terminate parental
rights within the following deadlines:
If Child in Foster Care.
If a
child has been in foster care for fifteen (15) of the
most recent twenty-two (22) months. The petition must be
filed by the end of the child’s fifteenth (15th) month
in foster care.
If Child is an Infant.
Within sixty (60) calendar days of a judicial determination
that the child is an abandoned infant; or
Upon Finding of Futility.
Within sixty (60) calendar days of a judicial determination
that reasonable efforts to reunify the child and parent are
futile. |
Dismissal without Prejudice |
2. |
Initial Hearing /
Temporary Custody Hearing |
- May be combined.
- The initial hearing shall be conducted within ten (10)
calendar days of service of the petition.
- The temporary custody hearing shall be scheduled
not less than fifteen (15) calendar days from the
date of filing, unless the hearing has been waived
by a valid consent for temporary placement that has been
filed with the motion for temporary custody. The
motion for temporary custody
shall be filed with the petition. Upon valid waiver, the
Court may issue a temporary custody order without a
hearing.
|
Dismissal without Prejudice |
3. |
Final Hearing |
The final hearing
shall
be scheduled within six (6) months from the date of petition
filing upon completion of service. |
Dismissal without Prejudice |
4. |
Issuance of Termination of Parental Rights Decree |
|
5. |
Review Hearings |
Shall be held every six (6) months after issuance of the
Termination of Parental Rights Decree until an adoption
decree is issued. |
|
6. |
Issuance of Adoption Decree |
Should be
issued within six (6) months of
the Termination of Parental Rights Decree. |
|
|
RULE 26 |
Standards and Criteria of Proof. |
|
26(a) |
Petition Requirements
|
(i) |
A petition for a court order to terminate the
parent-child relationship shall allege the following: That the parent: |
|
1. |
Has abandoned the child for more than six (6) months, or |
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2. |
Has been judicially determined to have abandoned an infant,
or |
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3. |
Has seriously neglected or willfully abused the child, or |
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4. |
Has been determined to have a mental condition or a history
of chronic abuse of dangerous drugs, controlled substances
or alcohol and there are reasonable grounds to believe that
the condition will continue for a prolonged indeterminate
period, resulting in inability to discharge parental
responsibilities, or |
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5. |
Has been incarcerated due to the conviction of a felony, and
the offense is of such nature as to show parental unfitness;
or
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6. |
Has been incarcerated due to the conviction of a felony and
the sentence is of such length as to deprive the child of a
normal home for a period of years; or |
|
7. |
The parent(s)
has voluntarily relinquished rights to the child or
consented to adoption at least ten (10) calendar days
following the
child's birth. |
(ii) |
Last Resort.
The petition, voluntary or involuntary, shall
additionally contain a
statement
that severance of the parent-child relationship is necessary, and that all other options have been pursued,
including customary parenting. |
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26(b) |
Initial and Final Hearing
-- Clear and Convincing Evidence |
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(i) |
Clear and Convincing
Evidence Justifying Termination of Parental Rights.
At the initial hearing, the
Court shall determine, on the basis of clear and
convincing evidence, whether: |
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1. |
There has been a judicial
determination that reasonable
efforts were made to reunify or preserve the family, or
reasonable efforts were futile;
and |
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2. |
All other options have been pursued
before severance of the parent-child relationship was sought
as a last resort; and |
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3. |
Termination is necessary in the best interest of the child and
for the child's health and safety; and |
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4. |
Where reasonable efforts to
reunify the family are required, the Division has provided
to the family, consistent with the time period in the case
plan, services that the Division deems necessary for the
safe return of the child to the home. |
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(ii) |
Clear and Convincing
Evidence, Necessity In Child's Best Interest. In order to determine the
status of the child and
determine, on the basis of clear and convincing evidence, whether termination of
parental rights is necessary in the child's best
interest, the Court: |
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1. |
Shall order
an investigative report or any additional studies from
the Division, an agency or other person selected by the
Court prior to a final hearing, unless waived by the
consent of the parties or by the Court upon a finding
that waiver is in the child's best interest. |
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2. |
Receive testimony and evidence on the issues, unless
waived by the consent of the parties. |
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(iii) |
Last Resort. The Court
shall make a specific finding why customary
parenting is
not preferred to termination of parental rights in this
individual case. |
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RULE 27 |
Specific Provisions. |
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27(a) |
Election Not to File.
The Navajo Nation may elect not to file or join a TPR petition
if the child is being cared for by relatives pursuant to a court
order, if the Division's case plan contained compelling reasons
why a TPR is not in the child's best interest, or services
deemed necessary for the safe return of the child to the home
have not been timely provided. |
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27(b) |
Parental Waivers.
Parents' appearance in the proceedings may be waived by
valid waiver and consent for placement. |
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27(c) |
Notices.
All notices shall be sent to
the Petitioner, the child’s parent(s), the Division, the agency,
the legal custodian(s), and the caretaker of the child. |
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27(d) |
Temporary Custody Order.
Upon specific findings, any
temporary custody order shall vest temporary custody of the
child with an appropriate agency or custodian as identified in
the motion or as determined at the hearing. |
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27(e) |
Parents' Failure to Appear.
If the parents fail to appear, the final
hearing may proceed upon sufficient showing that there is a
waiver, or that reasonable efforts as to notice were made.
Notice of the final hearing by certified mail shall be
sufficient verification to deem notice complete.
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27(f) |
Customary
Parenting.
The Court shall make a specific
finding why customary parenting is not preferred to
termination of parental rights in this individual case. |
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27(g) |
Termination of Parental Rights Decree
shall terminate the parent-child relationship. If the
parent-child relationship is terminated the court shall transfer
legal custody to the potential adoptive parent(s), or to an
agency or person who shall identify an adoptive parent, and fix responsibility for the child's financial support pending
issuance of an
adoption decree. |
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27(h) |
Termination of One Parent's Rights.
The parent-child relationship may be terminated with respect to
one parent without affecting the relationship of the other
parent. |
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27(i) |
Dismissal.
Where the Court does not order termination of the
parent-child relationship, it shall dismiss the petition,
unless the Court finds that in the best interests of the
child it is necessary to issue an order for the petitioner
to file the appropriate pleadings to address other
permanency options for the child. |
◄
VI.
INDIAN CHILD WELFARE ACT |
RULE 28 |
Caseflow and Deadlines.
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In Navajo Nation Court |
In the Foreign Court |
Details/Deadlines |
1. |
Application to Accept Jurisdiction of Foreign Court
Transfer |
|
A Navajo parent or custodian
or the Navajo Nation may
file. |
2. |
ICWA Hearing |
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Within forty-five (45)
business days, Navajo Nation Court shall hold a ICWA
hearing regarding acceptance of jurisdiction of foreign
court transfer. 25 U.S.C.A. § 1911 is applicable. |
3. |
Order on Acceptance of
Jurisdiction of Foreign Court Transfer |
|
Within two (2) business days
of the court's closing of evidence, the Court shall issue its
decision regarding acceptance of jurisdiction of
foreign court transfer. |
4. |
|
Petition to Transfer |
The Navajo Nation Court's order
granting acceptance of
jurisdiction over the transfer is filed in the foreign
court together with a
request to transfer. |
5. |
Notice of Transfer and Case Records Received by Navajo
Nation Court |
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|
6. |
Status Conference |
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Shall be scheduled within five (5) business
days of receipt of the notice of
transfer and case records from the foreign court. |
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RULE 29 |
Definitions.
The following
definitions apply only to this section. |
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29(a) |
Child's Tribe
means (a) the tribe(s) in
which the child is a member or is eligible for membership; (b)
in the case of an Indian child who is a member of or eligible
for membership in more than one tribe, the tribe with which the
Indian child has more significant contacts as determined by the
court; or (c) the tribe which recognizes the child as a tribal
member. |
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29(b) |
Navajo Child
means an unmarried person under
eighteen (18)
who is either an enrolled member of, or eligible for membership
in, the Navajo Nation. |
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29(c) |
Navajo Custodian
means a Navajo person who has
legal custody of a Navajo child under tribal law or custom, or a
Navajo person to whom temporary physical care, custody and
control has been transferred by the parent of such child. |
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29(d) |
Navajo Parent
means birth parent(s) of a Navajo
child, or any Navajo person who has legally adopted a child,
including customary adoptions, but does not include a father
whose paternity is not acknowledged or established. |
RULE 30 |
Assumption of Future Legal Responsibility Over Foreign ICWA
Proceeding.
Under
the Indian Child Welfare Act (ICWA), in any voluntary or involuntary
foreign (state or tribal court) action concerning placement of a
Navajo child
outside his/her home or termination of parental rights over a
Navajo child, a Navajo Nation
court may accept jurisdiction of
the foreign court case in order to assume
future legal responsibility and
authority over the disposition of the Navajo child,
and the foreign court may agree to transfer the entire case to
the Navajo Nation court. |
|
30(a) |
Transfer.
A case
involving a Navajo child which originates in a foreign
court may be transferred to a Navajo Nation
court upon an order from the Navajo court accepting jurisdiction
and the transfer of the case. Upon transfer by the foreign court, the foreign court
case records shall become part of the Navajo Nation case record
following status review.
Transfer is commenced by the filing
of an Application to Accept Jurisdiction of a Foreign Court
Transfer (ICWA Application). A petition ordinarily required to commence
an original A.B.B.A. proceeding shall not be required. |
|
30(b) |
Recognition.
Following transfer, orders issued
by
the foreign court that are
in compliance with Navajo law may be recognized by the Navajo Nation court. |
RULE 31 |
Expedited Transfer Procedure. |
|
31(a) |
Commencement. Transfer shall be initiated by
the filing of an Application to Accept Jurisdiction of a Foreign
Court Transfer in Navajo Nation court. The application should be
filed prior to the filing of any
request to transfer in the
foreign jurisdiction. |
|
31(b) |
Who May File. The Navajo Nation, or the Navajo
parent or custodian of the child, may file. |
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31(c) |
Notice of ICWA Hearing.
Upon filing, the
court clerk shall issue a notice for an ICWA hearing
to
be scheduled within
forty-five (45) business days of the filing. The
notice shall instruct the parties to inform the court whether
and how they will attend,
provide
timelines for responsive pleadings, and contain
sufficient information for the parties to appear telephonically
or electronically. |
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31(d) |
ICWA Hearing.
25 U.S.C.A. § 1911 relating to the exclusive jurisdiction of a
child's tribe and
appropriateness of
transfer of proceedings is applicable at the
ICWA hearing and any ensuing jurisdictional and transfer order.
All other proceedings in this section shall be pursuant to
Navajo law. |
|
31(e) |
Service.
The filing party shall be responsible
for serving the Application, Notice and all subsequent pleadings
in the transferred proceedings to necessary parties, which
include
Petitioner, parents or custodians,
and when necessary, Navajo Children and Family Services and Navajo Division of
Social Services.
Service on and off-reservation may be by email and fax. A
summons is not required. |
|
31(f) |
Issuance of Order.
The Jurisdiction and
Transfer Order shall issue within two (2) business days
of the
court's closing of receipt of evidence on the juridiction and transfer issues. The order
shall then be included with any
request to transfer to be filed
in the foreign court. |
|
31(g) |
Dismissal.
If the Navajo Nation or foreign
court declines to transfer, the proceeding in the Navajo Nation
court shall remain open pending any appeal; otherwise, the case
shall be closed. |
RULE 32 |
Transfer Standards and Criteria.
|
|
32(a) |
Contents of Application to Accept Jurisdiction
of Foreign Court Transfer
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An Application to Accept Jurisdiction of Foreign Court
Transfer should be filed prior to any petition being
filed in the foreign court and shall contain the following: |
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1. |
The name, birth
date, census number if any, of the child; |
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2. |
Name and address
of the court in which the
other jurisdiction
action is pending, and docket number of
that action; |
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3. |
Names, addresses,
roles, and census numbers if any, of all necessary
parties; |
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4. |
Present location
of the child, including the name, address and
relationship to the child of the person, agency or
department having possession of the child; |
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5. |
A concise
statement of the jurisdiction of the Navajo Nation
courts; |
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6. |
A brief history
of the foreign proceeding, including when it commenced,
and what stage the proceedings are at present; |
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7. |
Reason why
transfer is being sought. |
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8. |
Availability, if
any, of extended family members on the reservation. |
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9. |
Whether the child should be immediately made a ward of
the court; if so, on what basis.
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10. |
If filed by a Navajo parent or custodian, a
statement that the Navajo Department of Family Services
has been contacted, is able to provide services for the
child, and has no objection to the transfer.
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32(b) |
Jurisdiction
-- All relevant evidence may be accepted in order to
establish jurisdiction of the Navajo Nation over the
child by a Preponderance of the Evidence. |
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(i) |
The
Navajo Nation has exclusive jurisdiction in these
circumstances: |
|
|
1. |
A Navajo child resides in or is domiciled on the Navajo
Nation; |
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|
2. |
A Navajo child is a ward of the
Navajo Nation Court, whether or not
the child's residence or domicile is on the reservation. |
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(ii) |
The
Navajo Nation has concurrent jurisdiction when the child neither resides nor is domiciled on the
reservation but is a member of, or eligible for
membership in the Navajo Nation. Navajo Nation courts
have jurisdiction over Navajo children wherever they may
reside, based on their status as tribal members alone. |
|
32(c) |
Wardship
-- Circumstances in which a child becomes a ward of the
court include the following. |
|
1. |
The court
obtains wardship over a child when that child comes
under the jurisdiction of the court upon the filing of a
petition under the A.B.B.A. or perfection of a foreign
court transfer. Such wardship continues until
jurisdiction terminates pursuant to the A.B.B.A. |
|
2. |
Additionally, any Navajo child who is
domiciled or resides in Navajo Indian country
shall be made a ward of the court upon
voluntarily or involuntary placement outside Navajo Indian country. |
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32(d) |
Residence or Domicile
-- All relevant evidence may be accepted in order to
establish residence or domicile of the child by a Preponderance of the
Evidence |
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For
purposes of inter-jurisdictional transfer, residence or
domicile of the child is as follows: |
|
1. |
Residence and domicile may be where the child is
physically living; or |
|
2. |
The residence of the child may be the residence of
the parent with whom the child is physically living or
customarily resides, if the child is physically residing
off the reservation with relatives on a temporary basis,
attending school, or other temporary reasons. |
|
3. |
The legal domicile of the child who is living off the
reservation may be considered to be on the reservation
if his or her parents' or guardian's permanent residence
is on the reservation. |
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32(e) |
Contents of Order
Accepting Jurisdiction and Transfer |
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The
Order shall contain the following: |
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(i) |
Findings: |
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1. |
Basis for jurisdiction over the child; |
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|
2. |
Appropriateness of the transfer, including the future
role needed to be played by the Navajo Nation courts in
the welfare of the subject child; |
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3. |
Availability of Navajo Nation family services for the
child's particular circumstances; |
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4. |
Whether the child has been made a ward of the court,
and the reason for the wardship. |
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(ii) |
Statement of Commencement of Proceedings: "It is ordered that,
upon receipt of a Notice of Transfer and transmission of
the records of the case from [the transferring court], a
[type of] proceeding shall be considered as commenced in
this Court without further need for the filing of any
petition." |
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(iii) |
Statement of Temporary Custody:
"It is
ordered that, upon issuance of the Notice of Transfer
from [the transferring court],
the subject child(ren) shall
immediately be committed to the legal custody and
protective supervision of the Department of Family
Services (DFS)
or Navajo Children and Family Services (NCFS), Division of Social Services. Once vested with
temporary legal custody of the child(ren), DFS
or NCFS
shall be
authorized to consent to all medical treatment, dental
procedures, psychological or psychiatric evaluations,
therapy and all social and educational activities for
the child(ren) until further order of this Court." |
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RULE 33 |
Status Conference.
The foreign case record must be formally accepted in order to
become part of the Navajo Nation A.B.B.A. proceeding. Any
foreign order must be recognized in order to be
enforceable. Therefor, a
status conference shall be scheduled within five (5) business days of receipt of the notice of transfer and case
records from the foreign court and shall address the following: |
|
1. |
Stipulation or objections as to the completeness of the
case records received from the transferring court. |
2. |
Update on the transferred proceedings to be given by the
relevant parties. |
3. |
Discussion as to any disputed matters in the transferred
case. |
4. |
Stipulation and/or review of foreign court orders for
purposes of recognition pursuant to comity criteria at 9
N.N.C.
§ 1502 noting compliance with Navajo law. |
5. |
Issuance of orders regarding acceptance of the record, recognition
of foreign orders, issuance of new orders replacing
foreign orders if necessary, and other orders as
required under Navajo Nation
law. |
6. |
Discussion as to any modification needed to the Order of
Acceptance of Jurisdiction and Transfer regarding
temporary custody and wardship. |
7. |
Ordering of pleadings, home studies or reports and scheduling of
further hearings pursuant to the applicable A.B.B.A.R.P.
for the proceeding. |
|