TABLE OF CONTENTS
THE JUVENILE COURT
CUSTODY OF MINORS IN GENERAL
RIGHTS OF PARTIES AT JUVENILE PROCEEDINGS
PROCEEDINGS BEFORE THE JUVENILE COURT
TERMINATION AND RESTORATION OF PARENTAL RIGHTS
INDIAN CHILD WELFARE ACT
DUTY TO REPORT NON-ACCIDENTAL INJURIES TO MINORS
CURFEW OF MINORS
[Note: The Juvenile Code is derived from Ordinance 96, enacted May 5, 1974; Ordinance 124, enacted August 6, 1981; Ordinance 121, enacted April 7, 1981; and Ordinance 87, enacted September 3, 1969]
SECTION 1.1 DEFINITIONS
In this Code, unless the context otherwise requires:
A. Juvenile Court means the Juvenile Court of the White Mountain Apache Tribe.
B. Minor or child means a person under the age of eighteen years.
C. Adult means a person aged eighteen years or more.
D. Act of delinquency means an act which if committed by an adult would be punishable as an offense against the White Mountain Apache Tribe or against the State of Arizona.
E. Delinquent child or delinquent means a child who has committed an act of delinquency and is in need of care or rehabilitation.
F. Neglected child means a child:
(1) who has been abandoned by his parents, guardian, or other custodian;
(2) who is without proper parental care and control, or subsistence, education, medical or other care or control necessary for his well-being because of the faults or habits of his parents, guardian or other custodian, or their neglect or refusal, when able to do so, to provide for them; or
(3) whose parents, guardian, or other custodian are unable to discharge their responsibilities to and for the child because of incarceration, hospitalization, or other physical or mental incapacity.
G. Child or person in need of supervision means a child who:
(1) being subject to compulsory school attendance, is habitually truant from school;
(2) habitually disobeys the reasonable and lawful demands of his parents, guardian or other custodian, and is ungovernable and beyond their control; or
(3) has committed an offense not classified as criminal or one applicable only to children; and
(4) in any of the foregoing, is in need of care or rehabilitation.
H. Detention means the temporary care of children who require secure custody pending court disposition or transfer to another jurisdiction.
I. Shelter care means the temporary care of children in physically unrestricting facilities.
J. Legal custody means a legal status created by court order which vests in a custodian the right to have physical custody of the child or minor and to determine where and with whom he shall live and the right and duty to protect, train, and discipline him and to provide him with food, shelter, education and ordinary medical care, all subject to the powers, rights, duties and responsibilities of the guardian of the person of the child and subject to any residual parental rights and responsibilities personally unless otherwise authorized by the court.
K. Guardianship of the person of a minor means the duty and authority to make decisions in matters having a permanent effect on the life and development of the minor and to be concerned about his general welfare. It shall include, but not be limited to:
(1) the authority to consent to marriage or to medical, psychiatric or surgical treatment; to represent the minor in legal actions; to make other decisions concerning the minor of substantial legal significance;
(2) the authority and duty of reasonable visitation, except to the extent that such right of visitation has been limited by court order;
(3) the rights and responsibilities of legal custody when guardianship of the person is exercised by the natural or adoptive parent, except where legal custody has been vested in another individual, agency, or institution; and
(4) the authority to consent to the adoption of the minor and to make other decisions concerning him which his parents could make, when the rights of his parents, or only living parent, have been judicially terminated as provided for in this chapter to facilitate adoption, or when both of his legal parents are deceased.
L. Probation shall mean a legal status created by court order following an adjudication of delinquency whereby a minor is permitted to remain in his home subject to supervision and return to the Juvenile Court for violation of probation at any time during the period of probation.
M. Protective supervision means a legal status created by court order in neglect cases whereby the minor is permitted to remain in his home under supervision, subject to return to the court during the period of supervision.
N. Custodian means a person other than a parent or guardian, to whom legal custody of the child has been given by court order or who is acting in loco parentis.
SECTION 2.1 JURISDICTION OF THE JUVENILE COURT
A. The Juvenile Court shall have exclusive original jurisdiction over proceedings in which a child is to be adjudicated to be neglected, in need of supervision, or delinquent, proceedings for the termination of parental rights, and proceedings for the adoption of a child.
B. Where the interests of justice require, the Juvenile Court may give jurisdiction over children 16 years of age or older and transfer the case to the Trial Court for processing as a criminal case. The Juvenile Court shall not waive jurisdiction of a case where need of supervision is charged.
SECTION 2.2 APPOINTMENT OF YOUTH COUNSELORS
A. The Chief Judge of the Trial Court when acting as the judge of the Juvenile Court shall appoint one or more Youth Counsellors. A person qualified to become a tribal police officer may become a Youth Counsellor.
B. A Youth Counsellor shall have the authority to:
(1) receive and examine complaints and allegations that a child is neglected, in need of supervision, or delinquent for the purpose of initiating proceedings under this chapter;
(2) make referrals of cases to other private or public agencies where their assistance appears to be needed or desirable.
(3) supervise and assist a child placed on probation or under his supervision by the Juvenile Court; and
(4) take into custody and place in temporary care a child placed under his supervision when he has reasonable cause to believe that the child has violated the conditions of probation or that he may flee from the jurisdiction of the juvenile court.
C. A Youth Counsellor shall not have the same powers and duties of a police officer nor may he initiate a petition under this chapter with respect to a child who is not on probation or otherwise under his supervision.
D. If a Youth Counselor takes a child into custody, he shall proceed as provided for in Sections 4.6 and 7.7 of this code.
SECTION 2.3 TRANSFER OF JUVENILE CASES TO THE JUVENILE COURT
If it appears to a court in a criminal proceeding that the defendant was a minor at the time of the alleged offense, the court shall transfer the case to the Juvenile Court for processing as a juvenile case. No compliance with this requirement is necessary where the Juvenile Court has waived its jurisdiction pursuant to Section 2.1B.
SECTION 2.4 RETENTION OF JURISDICTION
Jurisdiction obtained by the Juvenile Court shall be retained by the Juvenile Court until a child becomes 18 years of age, unless terminated prior thereto.
SECTION 3.1 COMPLAINT; PRELIMINARY INQUIRY; AUTHORIZATION TO FILE PETITION
A. Complaints alleging neglect, delinquency or need of supervision shall be referred to a Youth Counsellor. The Youth Counsellor shall conduct a preliminary inquiry to determine whether the best interests of the child or of the Tribe require that a petition be filed. If judicial action appears necessary, the Youth Counsellor may recommend the filing of a petition. All petitions shall bear the signature of the complainant.
B. When a child is in detention or temporary shelter care and a petition is not filed within 24 hours, excluding Saturdays, Sundays and legal holidays, the child shall be immediately released.
C. On motion by or on behalf of a child, a petition alleging that a child is delinquent or in need of supervision shall be dismissed with prejudice if it was not filed within 10 days from the date the complaint was referred.
SECTION 3.2 PETITIONS
A. Petitions commencing Juvenile Court action or seeking to revoke probation shall be signed by a person other than a Youth Counsellor who has knowledge of the facts alleged and believes them to be true.
B. Petitions shall be entitle "In the matter of________________, a child" and shall be witnessed by the petitioner.
C. The petition shall specifically set forth:
(1) facts which bring the child within the jurisdiction of the Juvenile Court;
(2) the name, birth date and residence address of the child;
(3) the name and address of the parents, guardian or custodian of the child, and the spouse, if any, and if none of these persons can be found, the name and address of a known adult relative of the child within the reservation.
(4) the place of detention and time the child was taken into custody, if he is in custody; and
(5) when any of these facts are unknown, the petition shall so state.
SECTION 3.3 SUMMONS
A. After a petition has been filed, the Juvenile Court shall direct the issuance of summons:
(1) to the child, if he is over the age of 14 years or is alleged to be delinquent or in need of supervision;
(2) to the parents, guardian or other custodian;
(3) to the spouse of a married child; and
(4) to any other person who appears to the Juvenile Court to be a proper and necessary party to the proceeding.
B. The persons summoned shall be required to appear before the court at a designated time to answer the allegations of the petition.
C. The summons shall advise the parties of their rights to retain counsel as provided in Section 5.1. A copy of the petition shall be attached to each summons.
D. The judge, on the summons, may order the person having custody or control of the child to bring the child to the hearing.
SECTION 3.4 SERVICE OF SUMMONS
A. If a party to be served with summons can be found within the reservation boundaries, the summons shall be served upon him at least 7 days before the hearing.
B. If a party who is a resident member of the White Mountain Apache Tribe cannot be found within the reservation boundaries, service of summons may be made upon him by leaving a copy of the summons at his dwelling house or usual place of abode with a person of suitable age and discretion then residing therein.
C. If service of summons cannot be made on a resident member of the White Mountain Apache Tribe at his dwelling house or usual place of abode, he may be served by the posting of a copy of the summons at the tribal courthouse for a continuous period of 14 days.
D. If it appears from an affidavit or sworn statement presented to the judge that the child requires placement in detention or shelter care pursuant to Section 4.3 the judge may endorse upon the summons an order, than an officer serving the summons shall take the child into custody and take to a place of detention or shelter care designated by the court on the summons.
E. A party other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.
SECTION 3.5 TIME LIMITATIONS
On motion by or in behalf of a child, a petition alleging that the child is delinquent or is in need of supervision shall be dismissed without right to refile or amend where the allegations of the petition are not determined by an admission or a hearing within twenty (20) days after the filing of the petition.
SECTION 3.6 CONTINUANCES
Continuances shall be granted by the court only upon a showing of good cause and only for so long as is reasonably necessary.
SECTION 3.7 CONTEMPT POWER
As provided in Section 6.2 of this code, the Juvenile Court may punish a person for contempt of court for obstruction or interfering with the proceedings of the court or the enforcement of its orders.
SECTION 3.8 SUBPOENAS
Upon application of a party, the Clerk of the Court shall issue, and the court on its own motion may issue, subpoenas requiring the attendance of witnesses to testify and produce records, documents or other tangible objects at any hearing.
SECTION 4.1 TAKING A CHILD INTO CUSTODY
A child may be taken into custody:
(1) pursuant to the order of the Juvenile Court under Section 3.4 (D) of this chapter;
(2) for an act of delinquency pursuant to the laws of arrest as provided for in the Law and Order Code.
(3) by a law enforcement officer when he has reasonable grounds to believe that the child is suffering from illness or the child's surroundings are such as to endanger his health, morals or welfare, and that his removal is necessary; and
(4) by a law enforcement officer when he has reasonable grounds to believe that the child has run away from his parents, guardian or other custodian.
SECTION 4.2 NOTIFICATION TO PARENTS
A. Any police officer who takes a child into custody without a court order shall immediately notify or attempt to notify the parents, guardian, or custodian.
B. In all cases where the parents, guardian or custodian of a child taken into custody without a court order can be located and are willing and able to take the child under their care, the child shall be surrendered to their care pending any proceedings in the Juvenile Court.
C. Where a child has to be taken into custody without a court order, the police officer shall notify the judge of the Juvenile Court or a Youth Counsellor and shall make such disposition of the child as directed by the judge, or in his absence, the Youth Counsellor.
SECTION 4.3 CRITERIA FOR DETAINING CHILDREN
A. Unless ordered by the Juvenile Court pursuant to the provisions of this chapter, a child taken into custody shall not be placed or retained in detention or shelter care prior to the Juvenile Court's disposition unless detention or shelter care is required.
(1) to protect the person or property of others or of the child;
(2) because he has no parent, guardian, or other person able to provide supervision and care for him; or
(3) to secure his presence at the next hearing.
B. The criteria for detention or placement in shelter care in Subsection A shall govern the decision of all persons responsible for determining whether detention or shelter care is warranted prior to the Juvenile Court's disposition.
SECTION 4.4 RELEASE TO PARENTS, GUARDIAN OR CUSTODIAN FROM TEMPORARY DETENTION OR SHELTER CARE
A person taking a child into temporary detention or shelter care without a Juvenile Court order shall, with all reasonable speed, release the child to his parents, guardian or custodian upon their promise to bring the child before the Juvenile Court when requested by the court, unless the child's placement in detention or shelter care appears required as provided in Section 4.3 A(1) or 4.3 A(3).
SECTION 4.5 PLACE OF DETENTION OR SHELTER
A. A child alleged to be delinquent or in need of supervision may be detained, pending court hearing, in the following places:
(1) a foster home or other home approved by the Juvenile Court or a Youth Counsellor;
(2) a facility operated by a child welfare agency approved by the Juvenile Court; or
(3) any other suitable place designated by the Juvenile Court.
B. A child may be detained in a jail or other facility for the detention of adults only if the facilities provided for in Subsection A are unavailable and the detention is in a room separate and removed from those adults.
C. A child alleged to be neglected may not be detained in a jail or other facility intended or used for the detention of adults charged with or convicted of criminal offenses or for children alleged to be delinquent.
SECTION 4.6 RELEASE FROM DETENTION OR SHELTER CARE; HEARING
A. When a child is not released under the provisions of Section 4.4, a petition shall be filed within 24 hours,excluding Saturdays, Sundays and legal holidays, and a hearing shall be held within 24 hours from the time of the filing of the petition (excluding Saturdays, Sundays, and legal holidays) to determine whether continued detention or shelter care is required under Section 4.3.
B. Written notice of the detention or shelter care hearing stating the time, place and purpose of the hearing shall be given to the parent, guardian or custodian if they can be found and to the child if he is charged with being delinquent or in need of supervision.
C. At the commencement of a detention or shelter care hearing, the judge shall advise the parties of their right to retain counsel as provided in Section 5.1. The parties shall be informed of the contents of the petition and shall be given opportunity to admit or deny the allegations of the petition.
D. When a judge finds that a child's full-time detention is not warranted, the court shall order his release.
E. If the parent of a child not released was not notified and was not present at a detention or shelter care hearing, the court shall grant him a rehearing on his request and rehear the matter without unnecessary delay.
SECTION 4.7 EMERGENCY MEDICAL CARE
When a child is held in detention or shelter care, the Juvenile Court may order medical treatment which is immediately necessary for such child.
SECTION 5.1 RIGHT TO RETAIN COUNSEL
A. In delinquency and need of supervision cases, a child and his parents, guardian or custodian shall be advised by the court or its representative that the child may be represented by counsel at all stages of the proceedings. If counsel is not retained for the child, or if it does not appear that counsel will be retained, the court in its discretion may appoint counsel for the child.
B. In neglect cases, the parents, guardian or custodian shall be informed of their right to retain counsel and the court in its discretion may appoint counsel to represent the parents, guardian or custodian where they are unable, for financial reasons, to retain their own.
SECTION 5.2 ADMISSIBILITY OF PRELIMINARY STATEMENTS
Unless advised by counsel, the statements of a child made while in custody to a Youth Counsellor, including statements made during a preliminary inquiry or predisposition study, shall not be used against the child in determining the allegations of the petition.
SECTION 5.3 DOUBLE JEOPARDY
An adjudication of delinquency or need of supervision by the Juvenile Court shall not be deemed a conviction nor shall a criminal or other juvenile proceeding based upon the allegations of the petition be instituted where the Juvenile Court has begun taking evidence or accepted a plea which admits to the allegations of the petition.
SECTION 5.4 OTHER BASIC RIGHTS
A. A child charged with being delinquent or in need of supervision shall be accorded the privilege against self-incrimination. An extra judicial statement which would be inadmissible in a criminal proceeding shall not be received in evidence.
SECTION 6.1 CONDUCT OF HEARINGS
A. Hearings under this chapter shall be conducted by the Juvenile Court without a jury and apart from other judicial proceedings.
B. The proceedings may be recorded by a stenographer or by electronic or mechanical means. If such methods are not used, the court shall keep full minutes of the proceedings.
C. The general public shall be excluded from all proceedings of the Juvenile Court. Only the parties, their counsel, witnesses and other persons requested by the parties shall be admitted.
D. If the court finds that it is in the best interest of the child, his presence may be temporarily excluded from the hearings, except while allegations of delinquency or need of supervision are being heard.
SECTION 6.2 PREDISPOSITION STUDY AND REPORT
A. After the filing of a petition, the court shall direct that a predisposition study and report to the court concerning the child, his family, environment, and other matters relevant to the disposition of the case be made by a designated Youth Counsellor or child welfare agency. The study and report shall not be made prior to a finding with respect to the allegations in the petition unless a notice of intent to admit the allegations is filed and the party consents thereto.
B. Where there are indications that the child may be mentally ill or mentally retarded, the court on its own motion or on motion by counsel for the child, may order the child examined at a suitable place by a physician, psychiatrist or psychologist prior to a hearing on the merits of the petition. Such examinations made prior to hearing or as part of the study and report provided for in Subsection A shall be conducted on an out-patient basis unless the court finds that placement in a hospital or other appropriate facility is necessary.
C. The court, after hearing, may order examination by a physician, surgeon, psychiatrist or psychologist of a parent or custodian who gives his consent and whose ability to care for or supervise a child is at issue before the court.
SECTION 6.3 HEARING; FINDINGS; DISMISSAL
A. The parties shall be advised of their rights under the law in their first appearance before a Youth Counsellor and before the court. They shall be informed of the specific allegations in the petition and be given and opportunity to admit or deny such allegations.
B. If the allegations are denied, the court shall proceed to hear evidence on the petition. The court shall record its findings on whether or not the child is a neglected or delinquent child or child in need of supervision.
C. If the court finds that the allegations in the petition have not been established, it shall dismiss the petition and order the child discharged from any detention or shelter care theretofore ordered in the proceeding.
D. If the court finds on the basis of a valid admission or a finding on proof beyond a reasonable doubt that a child committed the acts by reason of which he is alleged to be delinquent, or in need of supervision, the court may, in the absence of objection, proceed immediately to hear evidence as to whether the child is in need of further rehabilitation and to file its findings thereon.
E. If the court finds from clear and convincing proof that a child is neglected or that a child is in need of care or rehabilitation as a delinquent child, or child in need of supervision, the court may be relied upon to the extent of its probative value, even though not competent in a hearing on the petition. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports when reasonable available.
SECTION 6.4 CONSENT DECREE; CONTINUED SUPERVISION WITHOUT ADJUDICATION
A. At any time after the filing of a delinquency or need of supervision petition and before entry of an adjudication order, the court, on its own motion or on motion of counsel for the child, may suspend the proceedings and continue the child under supervision in the child's own home, under such terms and conditions as recommended by the Youth Counsellor and agreed to by the parties affected.
B. Where the child objects to a consent decree, the court shall proceed to findings, adjudication and disposition. Where the child does not object to the consent decree but other parties object, the court shall proceed to determine whether it is appropriate to center a consent decree.
C. A consent decree shall remain in force for six (6) months unless the child is sooner discharged from supervision by the Youth Counsellor.
D. If prior to discharge by the Youth Counsellor or expiration of the consent decree, a new delinquency or need of supervision petition is filed against the child, or the Youth Counsellor reports that the child has failed to abide by the express terms and conditions of the consent decree, the original petition under which the child was continued under supervision may be reinstated in the discretion of the Juvenile Court and the child may be held accountable as if the consent decree had never been entered.
E. A child who is discharged by the Youth Counsellor, or who completes the period of continuance under supervision without reinstatement of the original delinquency or need of supervision petition, shall not again be proceeded against in any court for the same acts alleged in the petition or for an offense based upon the same condition.
SECTION 7.1 DISPOSITION OF NEGLECTED CHILD
A. If a child is found by the Juvenile Court to be neglected, the court may make any of the following orders of disposition to protect the welfare of the child.
(1) permit the child to remain with his parents, guardian or other custodian, subject to such conditions and limitations as the court may prescribe;
(2) place the child under protective supervision;
(3) transfer legal custody of the child to any of the following:
(a) a tribal, state, federal, or other public agency responsible for the care of neglected children, provided that the child remains exclusively subject to the orders of the Juvenile Court;
(b) a child-placing agency or other private organization or facility willing and able to assume the education, care and maintenance of the child at no expense to the public, and which is licensed or otherwise authorized by law to receive and provide care for such child; and
(c) a relative or other individual who, after study by the Youth Counsellor or other person designated by the court, is found by the court to be qualified to receive and care for the child.
B. Unless a child found neglected shall also be found to be delinquent or in need of supervision, he shall not be committed to or confined in an institution established for the care and rehabilitation of delinquent children or children in need of supervision.
SECTION 7.2 DISPOSITION OF A DELINQUENT CHILD OR A CHILD IN NEED OF SUPERVISION
A. If a child is found to be delinquent or in need of supervision, the court may make any of the following orders of disposition for his supervision, care and rehabilitation.
(1) any order which is authorized by Section 7.1 of this chapter for the disposition of a neglected child;
(2) an order transferring legal custody to a state or local public agency, provided that the child remain exclusively subject to the orders of the Juvenile Court; or
(3) an order placing the child on probation under such conditions and limitations as the court may prescribe.
SECTION 7.3 MEDICAL RECORDS OF A COMMITTED CHILD
Whenever the court vests legal custody of a child in an agency or institution, it shall transmit with the order copies of any clinical reports, predisposition study, and other information it has pertinent to the care and treatment of the child.
SECTION 7.4 ORDER OF ADJUDICATION, NONCRIMINAL
A. An order of disposition or other adjudication in proceedings under this chapter shall not be deemed a conviction of crime or impose any civil disability or operate to disqualify the child in any civil service or tribal employment application or appointment.
B. The disposition of a child and evidence given in a hearing in the Juvenile Court shall not be admissible against him in any case or proceeding in any other court whether before or after he has reached majority.
SECTION 7.5 LIMITATION OF TIME ON DISPOSITIONAL ORDERS
A. An order vesting legal custody of a child in an agency or institution shall remain in force for an indeterminate period not exceeding one year from the date entered, provided, however, the child shall be released within the one year period by the agency or institution when it appears that the purpose of the order has been achieved.
B. An order vesting legal custody of a child in an individual shall remain in force for one year from the date entered unless sooner terminated by court order.
C. An order of probation or protective supervision shall remain in force for an indeterminate period not exceeding one year from the date entered. Such probation or supervision shall be terminated within the one year period by the Youth Counsellor when he concludes that the purpose of the order has been achieved.
D. When a child reaches 18 years of age, all orders affecting him shall terminate and he shall be released from legal custody, probation, or supervision under such orders.
SECTION 7.6 MODIFICATION OF TERMINATION OF COURT ORDERS
A. At any time prior to expiration, an order vesting legal custody of an order of protective supervision made by the court in the case of a child may be modified, revoked, or extended on motion by:
(1) a child whose legal custody has been transferred to an institution, agency, or person, requesting the court for a modification or termination of the order and alleging that he is no longer in need of commitment and that the agency, institution or person has denied application for release of the child or has failed to act upon the application within a reasonable time;
(2) the parents, guardian, or other custodian of such child;
(3) a Youth Counsellor assigned to the child's case; or
(4) the institution, agency or person vested with legal custody or responsibility for protective supervision.
B. To effectuate the provisions of this section, the Juvenile Court when it grants legal custody or protective supervision of a child to an agency, institution or person shall assign a Youth Counsellor to the child's case to make a quarterly report to the court on the welfare and progress of the child.
SECTION 7.7 PETITION TO REVOKE PROBATION; DISPOSITION
A. A child on probation, incident to an adjudication as a delinquent child or child in need of supervision, who violates a term of his probation may be proceeded against in a hearing to revoke probation.
B. A proceeding to revoke probation shall be commenced by the filing of a petition entitled "Petition to Revoke Probation." Except as otherwise provided, petitions to revoke probation shall be screened, referred and prepared in the same manner and shall contain the same information as provided in Sections 3.1 and 3.2 of this code.
C. Probation shall not be revoked except upon a showing by clear and convincing proof that a term of a child's probation was violated. In all other respects, proceedings to revoke probation shall be governed by the procedures, rights and duties applicable to delinquency and need of supervision cases contained in this chapter.
D. If a child is found to have violated a term of his probation pursuant to a hearing to revoke probation, the court may extend the period of probation or make any other order of disposition specified for a child adjudicated as delinquent or in need of supervision in Section 7.2 of this chapter.
SECTION 7.8 DISPOSITION OF MENTALLY ILL OR MENTALLY RETARDED CHILD
If at a hearing under this chapter, the evidence indicates that the child may be suffering from mental retardation or mental illness, the court may commit the child for a period not exceeding thirty (30) days to an appropriate institution or agency for further study and a report on the child's condition. If it appears that the child is committable as a mentally retarded or mentally ill person, the court shall dismiss any delinquency or need of supervision petitions pending against the child and release him to this parents, guardian or custodian.
SECTION 7.9 APPOINTMENT OF GUARDIAN AD LITEM
A. The Juvenile Court, at any stage of the proceeding under this chapter, may appoint a guardian ad litem for a child who is a party to the proceeding if he has no parent or guardian or custodian or if his natural or adoptive parent is not in a position to exercise effective guardianship. A party to the proceeding or his representative or employee shall not be appointed.
B. No officer or employee of a public or private agency or a person who is or may be vested with the legal custody of neglected or delinquent children or children in need of supervision shall be appointed as guardian ad litem.
SECTION 7.10 COURT COSTS AND EXPENSES
A. Except as provided in Subsection B, the following expenses shall be absorbed by the White Mountain Apache Tribe:
(1) reasonable compensation for services and related expenses for counsel in those cases where one is appointed by the court for a party;
(2) the expense of service of summons, notices, subpoenas, traveling expenses of witnesses, and other similar expenses incurred in the proceedings under this chapter; and
(3) reasonable compensation for a guardian ad litem.
B. If, after due notice to the parents or other persons legally obligated to care for and support the child, and after a hearing, the court finds that they are financially able to pay all or part of the costs and expenses noted in Subsection A(1), it shall order them to pay such costs and expenses and may prescribe the manner of payment.
SECTION 7.11 SUPPORT OF COMMITTED CHILD
Whenever legal custody of a child is vested in an individual other than the parents, after due notice to the parents or other persons legally obligated to care for and support the child, and after a hearing, the court may order and decree that the parent or other legally obligated person shall pay in such a manner as the court may direct a reasonable sum that will cover in whole or in part the support and treatment of the child after the decree is entered. If the parent or other legally obligated person wilfully fails or refuses to pay such sum, the court may proceed against him for failure to obey a lawful order of the court, or the order may be sued upon to obtain a civil judgment.
SECTION 7.12 PROTECTIVE ORDERS
In any proceeding commenced under this chapter, upon application of a party or the court's own motion, the court may make an order restraining the conduct of any party over whom the court has obtained jurisdiction, if:
(1) an order of disposition of a delinquent or neglected child or child in need of supervision has been made in a proceeding under this chapter; and
(2) the court finds that the person's conduct is or may be detrimental or harmful to the child, and will tend to defeat the execution of the order of disposition; and
(3) due notice of the application or motion and the grounds therefor and an opportunity to be heard thereon has been given to the person against whom the order is directed.
SECTION 7.13 RECORDS; PUBLICATION PROHIBITED
A. The records of proceedings of the Juvenile Court shall be kept in a docket separate from other proceedings, and shall not be opened for inspection or copied by anyone other than the parties to the proceedings, the representatives of the court, and youth counsellors having an interest therein, except upon order of the court.
B. No part of the record shall be published by a newspaper or other agency disseminating news or information nor shall a newspaper or agency publish the name of a child charged in the Juvenile Court with being delinquent, in need of supervision or neglected.
SECTION 7.14 DESTRUCTION OF RECORDS
When a person who has been before the Juvenile Court in a delinquency or in need of supervision proceeding attains the age of eighteen, the court shall order the clerk to destroy all records of such proceedings involving such person.
SECTION 8.1 PREFERRED PARENTAL RIGHT TO CUSTODY
If a Juvenile Court finds that a child is neglected, it shall not transfer custody of the child to another person, agency, or institution unless it finds from all the circumstances that the health, safety or welfare of the child requires such transfer.
SECTION 8.2 TERMINATION OF RESIDUAL RIGHTS AND RESPONSIBILITIES
The residual rights and responsibilities of a parent with respect to a child shall not be terminated except in the most extreme cases of neglect or other parental conduct or condition detrimental to the child's welfare. That a child is delinquent or in need of supervision shall not be grounds for termination of parental rights.
SECTION 8.3 TERMINATION PROCEDURES
A. Residual parental rights and responsibilities shall not be terminated except when so ordered after a hearing has been held specifically for such purpose.
B. An adult relative of the child, a person who has the care for such child, or an officer of the Bureau of Indian Affairs Office of Social Services may petition the Juvenile Court to terminate residual parental rights and responsibilities.
C. The parent or parents shall be given not less than ten (10) days notice of the hearing by service of summons which shall contain a statement of the effect that the rights of the parent or parents are proposed to be terminated at such hearing. Such summons shall be served as provided in Section 3.4 of this code.
D. At the termination hearing, the parent or parents shall be given full and fair opportunity to be heard and to controvert any evidence introduced.
E. A party may be represented by counsel as provided in Section 5.1 of this code.
SECTION 8.4 GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
A. The Juvenile Court may terminate the residual rights and responsibilities of a parent or parents if the Court finds that the parent or parents of the child:
(1) are unfit and incompetent to care and provide for such child and no alternatives are feasible or available through which such care and provision could be supplied without terminating the parental rights;
(2) habitually engages in conduct detrimental to the health, safety or welfare of the child;
(3) wilfully refuse to care or provide for the child when able to do so;
(4) are unable to care and provide for the child by reason of physical or mental incapacity; or
(5) have abandoned the child.
B. The rights and responsibilities of one parent may be terminated without affecting the rights and responsibilities of the other parent.
SECTION 8.5 ORDER TERMINATING
Every order terminating the rights of one or both parents shall state the findings upon which the Juvenile Court bases its order. Such order shall be of an interlocutory nature, subject to review by the Juvenile Court within one (1) year, but may be appealed immediately by the parents.
SECTION 8.6 DISPOSITION AFTER ORDER
Upon the entry of the order terminating the rights and responsibilities of a parent or parents, the Juvenile Court may:
(1) place the child for adoption as provided under Chapter Nine of this code; or
(2) proceed under Section 7.1 Disposition of Neglected Child, of this code.
SECTION 8.7 REVOCATION OF TERMINATION ORDER
A. The parent or parents, whose rights and responsibilities to a child have been terminated may, within six (6) months, petition the Juvenile Court for revocation of its termination order and restoration of the parental rights on the grounds that a substantial change of circumstances has occurred which requires such revocation and restoration in the best interest of the child.
B. If the Juvenile Court determines that the alleged circumstances, if proved, would affect its order, the Court shall order a hearing upon due notice to all persons concerned. Thereafter, the Court may reverse its previous termination order.
C. If the child has been adopted prior to the filing of the petition for revocation and restoration, the parent or parents shall proceed under § 9.12 of this Code.
[Note: Chapter Nine is derived from Ordinance 96, Chapter IV, Part IX]
SECTION 9.1 WHO MAY BE ADOPTED
Any child subject to the jurisdiction of the White Mountain Apache Juvenile Court may be adopted.
SECTION 9.2 WHO MAY ADOPT
A. Any adult member of the White Mountain Apache Tribe may petition to adopt children. A husband and wife may jointly adopt children.
B. Only in extraordinary circumstances, and where the best interests of the White Mountain Apache Tribe and the child require it, may non-members adopt children.
SECTION 9.3 ADOPTION ORDER REQUIRED
No child shall be adopted except when so ordered by the Juvenile Court after an adoption hearing initiated by the filing of a petition for adoption.
SECTION 9.4 PETITION FOR ADOPTION
A. A Petition for leave to adopt a child shall be made to the Juvenile Court. Such petition shall include:
(1) the names, ages and place of residence of the petitioner and, if married, the date and place of marriage and the relationship, if any, to the child.
(2) the names of the natural parents;
(3) when the petitioner acquired custody of the child and from what person or agency custody was acquired, if applicable;
(4) the date and place of birth of the child;
(5) the name of the child and, if a change of name is desired, the requested name;
(6) a full description and statement of the value of all property owned or possessed by the child;
(7) any reason that consent to adopt need not be given; and
(8) any information which the petitioner determines should be brought to the attention of the court pertinent to the adoption.
When any of the above facts is unknown, the petition shall so state.
B. Any written consent required under this chapter shall be attached to the petition or shall be filed with the court at or prior to the adoption hearing.
SECTION 9.5 NOTICE OF HEARING ON PETITION
A. Upon the filing of a petition for adoption, the Clerk of the court shall set a time and date for a hearing by the Juvenile Court on the adoption. No adoption hearing shall be held within thirty (30) days after the filing of the petition.
B. Notice of the adoption hearing shall be given:
(1) to the petitioner;
(2) to the person, agency or institution having custody of the child, if any.
(3) to the person or agency conducting the investigation ordered by the Court under Section 9.8 of this code; and
(4) to any person required to give consent to adoption, unless such consent had been filed prior to the setting of the adoption hearing date.
SECTION 9.6 CONSENT TO ADOPTION
A. No adoption shall be ordered unless consent to adopt has been obtained in writing from the following:
(1) the parents or surviving parent of the child, but if one of the parents has been legally declared insane or incompetent, consent need not be obtained from such person;
(2) the mother only of a child born out of wedlock; but the consent of the father of a child born out of wedlock shall be required if the father has acknowledged his parentage, either by subsequent marriage to the mother, or by recording, in the office of the Arizona State Bureau of Vital Statistics prior to the filing of the petition for adoption, a notarized certificate of parental acknowledgement as to the child. Consent of the father shall also be required if his parentage has been established by a Court of the White Mountain Apache Tribe.
(3) a guardian of the child appointed in a separate proceeding, with authority to consent to adoption, if neither parent is living, or both parents have been legally declared insane or incompetent, or the parental rights of both parents have been terminated.
(4) a public or private child welfare agency vested with authority to consent to the adoption of the child.
B. Where the child is twelve years of age or older, his adoption shall not be granted without his consent.
C. No consent to adoption of a child given by a resident member of the White Mountain Apache Tribe shall be valid in any court unless approved by the Judge of the Juvenile Court.
SECTION 9.7 WAIVER OF CONSENT TO ADOPTION; EXCEPTION OF NATURAL PARENTS
The court may waive the requirement of consent of any person, except a natural or adoptive parent, who is required to give consent, if after a hearing with all persons concerned, the Court determines that the interest of the child may be promoted thereby. In such cases, the Court shall make written findings of all facts upon which its order of waiver is based.
SECTION 9.8 INVESTIGATION
Upon the filing of a petition for adoption and after a hearing date has been set, the Court shall order the Youth Counselor, an officer of a federal, state, or tribal placement agency or other competent person to conduct an investigation, such person shall report his findings to the court with respect to the following:
(1) why the natural parents, if living, desire to be relieved of the care, support and guardianship of the child;
(2) whether the natural parents have abandoned the child or are unfit to have custody of the child;
(3) whether the proposed parents are financially able and morally fit to have the care, supervision and training of the child;
(4) facts relating to the physical and mental condition of the child;
(5) whether the proposed change of parents and custody are in the best interests of the child; and
(6) facts or information relevant to the adoption of the child which would affect the decision to grant or deny adoption.
SECTION 9.9 HEARING; ATTENDANCE
A. The petitioner, the spouse of the petitioner and such other persons as the Court may order shall appear at the adoption hearing. Unless the Court otherwise orders, the child to be adopted shall also be present.
B. The hearing shall be conducted in the same manner as other proceedings of the Juvenile Court as provided in Section 6.1 of this code.
SECTION 9.10 COURT ORDER
A. If, after hearing and considering all the evidence including reports ordered by the Court, the Juvenile Court is satisfied that the requirements of this chapter have been fulfilled and that the adoption is in the best interest of the child, it shall enter an order granting the adoption. Such order may change the name of the child to that of the petitioner.
B. Such order shall be in writing and shall recite the findings of fact upon which such order is based. Such order shall be of an interlocutory nature, subject to modification by the Juvenile Court at any time within one (1) year, except that where an adoption is ordered without consent, an aggrieved party shall have a right to appeal.
SECTION 9.11 RIGHTS UNDER ADOPTION ORDER
A. Upon entry of the order granting adoption, the relationship of parent and child and all the legal rights, privileges, duties, obligations and other legal consequences of the natural relationship of child and parent shall thereafter exist between the adopted child and the adoptive petitioner. The child shall be considered as having been born to the adoptive petitioner in lawful wedlock.
B. The adopted child shall be entitled to inherit real and personal property from and through the adoptive petitioner; the adoptive petitioner shall be entitled to inherit real and personal property from and through the adopted child.
C. Upon entry of the decree of adoption, the relationship of parent and child between the adopted child and the persons who were his parents prior to the order granting adoption shall be completely severed. All the legal rights, privileges, duties, obligations and other legal consequences of the relationship if not previously terminated, shall cease to exist, including the right of inheritance. Where the adoption is by the spouse of the child's parent, the relationship of the child to such parent shall remain unchanged by the decree of adoption.
D. The decree of adoption shall not destroy any rights of heritage due to national origin or any rights or privileges incident to the child's Indian heritage.
SECTION 9.12 REVOCATION OF ADOPTION ORDER
A. Within six (6) months after the entry of the order granting adoption, the Juvenile Court may revoke its order granting adoption for good cause. Such revocation may be granted by the court on its own motion or on motion by the adoptive parent or parents, the child's former parent or parents, the child, or the child's next friend.
B. No revocation of an order granting adoption shall be ordered unless notice in writing had been served upon the adoptive parent or parents at least ten (10) days prior to the entry of the order revoking the order of adoption provided that if the motion for revocation was entered by the adoptive parent or parents, the ten day notice requirement shall not apply.
C. Upon the revocation of an adoption order, the parent or parents of the child may proceed under Section 8.7 of this code for the restoration of parental rights if such rights had previously been terminated.
D. This Section shall not be construed to preclude appeal to the Tribal Court of Appeals of any final order, judgment or decree of the Juvenile Court.
section 9.13 ADOPTION ORDER UNAFFECTED BY APPEAL
The filing or pendency of an appeal from the Juvenile Court shall not suspend the order of the Court regarding the adoption order.
SECTION 9.14 FEES
The Juvenile Court may assess such fees as are necessary to cover the costs of services rendered in connection with the adoption proceedings. Such fees may be lowered or waived when the payment would cause hardship to an adoptive parent or parents, and shall become a Tribal charge in whole or part. All fees collected shall be handled as other cash receipts are by the Clerk of the Court.
[Note: Chapter Ten is derived from Ordinance No. 124, enacted August 6, 1981, establishing the White Mountain Apache Indian Child Welfare Ordinance as follows:]
SECTION 10.1 PURPOSE AND INTENT
The purpose of this White Mountain Apache Tribe Indian Child Welfare Ordinance is to protect the best interests of the White Mountain Apache children and to promote the stability and security of the White Mountain Apache Tribe and the families constituting the Tribe. The Tribal Council hereby declares that it has always been the policy of the White Mountain Apache Tribe, both before the enactment of the Indian Child Welfare Act of 1978 and continuing thereafter, to protect the best interest of its children and to promote the stability and security of the Tribe and families. Furthermore, the Tribal Council hereby declares that there is no resource that is more vital to the continued existence and integrity of the White Mountain Apache Tribe than its children and families, and it is therefore enacting this ordinance in order to halt the number of Tribal families which are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies which place such children in non-Indian foster and adoptive homes and institutions; and further to halt and correct the failure of the various states of these United States, in the exercise of their jurisdiction over Indian child custody proceedings through their administrative and judicial bodies, to recognize the essential tribal relations of the White Mountain Apache people and the cultural and social standards prevailing in the White Mountain Apache Tribal community and its families.
SECTION 10.2 RECOGNITION OF INDIAN CHILD WELFARE ACT
The Tribal Council of the White Mountain Apache Tribe, hereby recognizes and supports Public Law 95-608, dated November 8, 1978 (95 Stat. 3069) cited as the "Indian Child Welfare Act of 1978", and further recognizes that the Act has conferred upon Indian Tribes certain authority and responsibilities relating to the welfare of children of the several tribes; and further recognizes that its responsibilities and concern for the welfare of the children of the Tribe would be best served through the Tribal Judicial system which can implement as it always has, the Indian Child Welfare Act of 1978 and the rules and regulations promulgated by the Secretary of the Interior in Title 25 CFR parts 13 and 23 as well as the recommended guide lines for state courts - Indian child custody proceedings.
SECTION 10.3 DEFINITIONS
A. INDIAN CHILD WELFARE ACT - Indian Child Welfare Act when used in this Chapter refers to Federal Public Law 95-608, dated November 8, 1978 (95 Stat. 3069) cited as the "Indian Child Welfare Act of 1978" including those rules and regulations promulgated by the Secretary of the Interior as contained in Title 25 CFR parts 13 and 23 as well as the promulgated recommended guide lines for state courts-Indian child custody proceedings.
SECTION 10.4 TRIBAL COURT AUTHORITY
A. The Tribal Court of the White Mountain Apache Tribe is hereby delegated by the Tribal Council all authority and responsibility conferred upon the White Mountain Apache Tribe by the Congress of the United States under the Indian Child Welfare Act to administer said Act and the rules and regulations promulgated thereunder.
B. The exercise of the authority and responsibilities delegated by this Chapter, shall be under the jurisdiction of the Tribal Court sitting as a Juvenile Court, following the Juvenile Code provided, that the provision of the Indian Child Welfare Act of 1978 and the rules and regulations promulgated thereunder shall prevail.
C. The Tribal court exercising the authority and responsibilities delegated by this Chapter shall use all of the resources of the Tribe, Federal Government and State or local agencies which are available, to contribute to the final decision upon which the future life of any child may depend in a child custody proceeding.
SECTION 10.5 MONTHLY REPORTS
The Tribal governing body shall be furnished with a monthly report from the Tribal Courts on all actions taken under this delegation of authority.
SECTION 10.6 APPEALS
Following all appeals from the decision of the Tribal Judiciary based upon appeal from the Tribal Court, an aggrieved person may have one final appeal to the Tribal governing body whose decision shall be final.
SECTION 10.7 RELATIONSHIP WITH STATE COURTS
The Tribal governing body may in its discretion and when it determines such action to be in the best interest of its children, may assist the Tribal Courts in their relationships with state courts and governments when necessary to carry out the purpose of this Chapter.
SECTION 10.8 SEVERABILITY
If any provision of this Chapter, or the application thereof, is held invalid, the remainder of this Chapter, or other applications of such provisions shall not be affected.
[Historical Note: Chapter Eleven is derived from Ordinance No. 121, enacted April 7, 1981]
SECTION 11.1 DUTY TO REPORT NON-ACCIDENTAL INJURIES AND PHYSICAL NEGLECT OF MINORS; CLASSIFICATION
A. Any physician, hospital intern or resident, surgeon,dentist, osteopath, school personnel, social worker, peace officer or any other person having responsibility for the care of children whose observation or examination of any minor discloses evidence of injury, sexual molestation, death, abuse, or physical neglect which appears to have been inflicted upon such minor by any other than accidental means or which is not explained by the available medical history as being accidental in nature, shall immediately report or cause reports to be made of such information to a Tribal Police Officer or to the Bureau of Indian Affairs Social Services or tribal designated Child Welfare Agency within twenty-four (24) hours. Such reports shall be made forthwith by telephone or in person, and shall be followed by a written report. Such reports shall contain:
(1) The names and addresses of the minor and his parents or person or persons having custody of such minor, if known.
(2) The minor's age and the nature and extent of his injuries or physical neglect, including any evidence of previous injuries or physical neglect.
(3) Any other information that such person believes might be helpful in establishing the cause of the injury or physical neglect.
SECTION 11.2 NOTICE TO CHILD WELFARE AGENCY
When such telephone or in-person reports are received by the Tribal Police Department, they shall immediately notify the Bureau of Indian Affairs Social Services or the tribal designated Child Welfare Agency and make such information available to them.
SECTION 11.3 PHOTOGRAPHS; MEDICAL EXAMINATIONS; HOLDING CHILD
Any person required to receive reports pursuant to Section 11.1, may take or cause to be taken photographs of the child and the vicinity involved. Medical examinations, including but not limited to, radiological examinations of the involved child may be performed. For the abused or neglected, the police can institute up to seventy-two (72) hour hold, excluding weekends and holidays, or until a court hearing can be held (whichever comes first), when there is reason to believe that the child is in imminent danger if returned to the home.
SECTION 11.4 IMMUNITY FROM LIABILITY; PRIVILEGE NOT APPLICABLE
A. Anyone participating in the making of reports required under the provisions of this section, or anyone participating in a judicial proceeding resulting from such reports, shall be immune from any civil or criminal liability by reason of such action unless such person acted with malice or unless such person has been charged with or is suspected of abusing or neglecting the child or children in question.
B. The physician patient privilege, husband-wife privilege or any privilege except the attorney-client privilege, provided for by professions such as the practice of social work or nursing covered by law or a code of ethics regarding practitioner-client confidences, both as they relate to the competency of the witness and to the exclusion of confidential communications, shall not pertain in any civil or criminal litigation in which a child's neglect, dependency, abuse or abandonment is an issue nor in any judicial proceeding resulting from a report submitted pursuant to this chapter.
SECTION 11.5 VIOLATIONS; PENALTY
Any person required to make a report under this chapter, who fails to comply with any provision of this chapter upon a finding by the Tribal Court shall pay a civil penalty of not less than Three Hundred Dollars ($300,00) nor more than Seven Hundred Fifty Dollars ($750.00).
[Historical Note: Chapter Twelve is derived from Ordinance No. 87, enacted September 30, 1969]
SECTION 12.1 CURFEW
It shall be unlawful for any minor under the age of eighteen years to be upon the roadways, streets, alleys or public places within the exterior boundaries of the Fort Apache Indian Reservation between the hours of 9:00 p.m. and 5:00 a.m., Sunday through Thursday and 12:00 midnight and 5:00 a.m. Friday and Saturday from the fifteenth of September to the fifteenth of May and between the hours of 10:00 p.m. and 5:00 a.m. Sunday through Thursday and 12:00 midnight and 5:00 a.m. Friday and Saturday nights from the sixteenth of May to the fourteenth of September; unless such a minor is accompanied by his or her parents, guardian, adult relative or adult friend approved by his or her parents or guardian.
SECTION 12.2 PARENTAL SUPERVISION
A. It shall be unlawful for the parents or guardian of any minor under the age of eighteen years to permit said minor to violate any part of the above section.
B. It shall not constitute a defense that such a parent or guardian did not have the knowledge of the presence of the minor upon the roadways, streets, alleys or public places in violation of this chapter.
SECTION 12.3 VIOLATION; PENALTY
Any minor or the parents or guardian of any minor who shall violate the provisions of this ordinance shall be deemed guilty of an offense and, upon conviction thereof, shall be punished by imprisonment for a term not exceeding thirty days or by a fine not exceeding Thirty Dollars ($30.00) or both such imprisonment and fine.
SECTION 12.4 PRIOR LAW RESCINDED
Ordinance No. 38 is hereby rescinded in its entirety.