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Άlchíní Bi Beehaz ánnii Act
§ 1001. Purpose
A. To recognize and reaffirm the duty of a parent and/or guardian
provide for the safety, welfare, and guidance of their children.
B. To preserve and restore the harmony and unity of the family by
ensuring access to the mental and physical care and protection of the
children and families which come within the jurisdiction of the Navajo
Nation;
C. To protect children by taking actions and offering programs as may be
proper and necessary to prevent delinquency, incorrigibility, truancy,
neglect and abuse;
D. To achieve the purposes of the Navajo Nation Álchíní Bi Beehaz’áannii
in a family environment whenever possible, separating the child from
parents and extended family only when necessary for the child's welfare
or safety, or in the interest of public safety;
E. To mandate the participation of children and family members into
appropriate culturally relevant treatment, rehabilitation and aftercare;
F. To seek out culturally appropriate methods for prevention,
intervention and treatment of family disharmony.
F. To the Álchíní Bi Beehaz’áannii and to ensure fundamental fairness
consistent with Diné bi beehaz’áannii, the Navajo Nation Bill of Rights
and other statutory provisions for every individual who comes within the
jurisdiction of the Navajo Nation Courts; and
G. To facilitate the purposes of the Navajo Nation Álchíní Bi
Beehaz’áannii through coordination with other governments and agencies;
and
H. To facilitate family harmony using measures consistent with Navajo
Nation statutes and Diné bi beehaz’áannii.
§ 1002. Definitions
The following definitions shall be limited to this Chapter:
A. "Abandonment" means the parent(s) fails to provide adequate care
and/or parental supervision; and fails to maintain a parental
relationship with the child without just cause for a period of three
months.
B. “Abandoned Infant” means a child under the age of one (1) year whose
parent(s) have failed to provide adequate care and/or parental
supervision; and fails to maintain a parental relationship with the
child without just cause. The period of abandonment may be for less than
three (3) months.
C. "Abuse" means the infliction of physical, emotional, sexual or
psychological injury on a child and shall include exploiting or
overworking a child to such an extent that his/her health, morals, or
emotional well-being is endangered.
D. "Adjudicatory Hearing" means a hearing on the factual and legal
issues of the petition upon which the Court renders a decision.
E. “Adoption” means legally taking a child into one’s family and raising
as their own.
F. "Adult" means a person 18 years of age or older, or a person who is
otherwise emancipated by Court order.
G. “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.
H. "Child" means a person who has not attained the age of eighteen (18)
and who is unmarried or has not been emancipated.
I. "Child in Need of Supervision" (CHINS) means a child who is in need
of care or rehabilitation in the following situations:
1.
Being subject to compulsory
school attendance, is consistently absent or tardy from school, pursuant
to Title 10 N.N.C. §118; or
2.
Consistently disobeys the
reasonable and lawful demands of his/her parent(s), guardian(s) or
custodian(s), or school personnel and is beyond control; or
3.
Has committed an offense
under Title 14, Civil Traffic Infractions; or
4.
Has committed other
non-criminal offenses under this Code.
J. “Custodian” means a person other than a parent or guardian in whose
custody a minor child has been placed temporarily and no order granting
legal custody has been given.
K. "Delinquent Act" means an act committed by a child, which would be
designated as a crime pursuant to Title 17 of this Code and those
traffic offenses enumerated in §1317(A) herein.
L. "Delinquent Child" means a child who is adjudicated to have committed
a delinquent act.
M. "Dependent Child" means a child who is abused and/or neglected by a
parent(s), guardian(s) or custodian(s).
N. "Detention" means the placement of a child alleged or determined to
have committed a delinquent act that requires custody in a physically
restricting facility for the protection of the child or the Navajo
Nation.
O. "Detention Facility" means a place where a child alleged to have
committed a delinquent act may be detained under this Chapter pending a
court hearing or after adjudication.
P. "Division" means the Navajo Division of Social Services.
Q. "Domicile" means where the child’s parent or legal guardian intends
to permanently reside. The domicile of a child is that of the custodial
parent. The domicile of a child born out of wedlock is that of the
natural mother unless otherwise established in the father. Domicile for
purposes of jurisdiction is under this Chapter is established at the
time of the alleged act(s).
R. “Emancipation” means a child over the age of sixteen (16) and under
the age of eighteen (18) who has shown he/she is capable of providing
for himself/herself without parental supervision and support; and a
court has issued an order to that effect.
S. “Family Conference” means a meeting initiated by the Division and
including the parent(s), guardian(s) or custodian(s), and family members
to discuss a family resolution to alleviate the dependency issues.
T. “Family Group Conferencing” means a meeting convened by the Division
at their initiation or upon referral to include parent(s), guardian(s)
or custodian(s) and other family members and, if the family consents,
professionals who work with the child and family, such as the teachers,
psychologists, extended family, religious or traditional counselors, and
friends of the family.
U. “Foster Parent” means a person, including a relative of the child,
licensed by the Division or a child placement agency to provide
temporary care for children in the legal custody of the Division.
V. "Guardian" means a person, other than a parent appointed by an
appropriate legal entity, having the duty and authority to provide care
and control of a child. W. “Guardian Ad Litem” means a person appointed by the Court to represent the best interests of the child.
1.
This person is not the
guardian or the legal counsel for the child and is not a named party to
the case.
2.
May be a member of the
community who has received training to be a guardian ad litem, this
could include elders, community leaders or social workers.
3.
May be a member of the
Navajo Nation Bar Association, after the Court issues appropriate
findings and concludes that a Bar member is necessary.
X. “Hearing Officer” means a Navajo Nation Bar Association member with
experience in proceedings under this Chapter appointed by a judge.
Y. "Law Enforcement Officer" means a duly commissioned peace officer,
sheriff, or deputy sheriff.
Z. “Legal Counsel” means a person who is a member of the Navajo Nation
Bar Association.
AA. "Legal Custody" refers to the legal status over a child created by
court order.
BB. “Neglect” means the failure or inability of the parent, legal
guardian or custodian to provide protection, food, clothing, shelter,
medical care, education or supervision for the child’s health, safety
and well being.
CC. "Parent" includes a biological or adoptive parent, or where legal
paternity has been established and whose parental rights have not been
terminated.
DD. “Paternity” means the legal acknowledgment of the parental
relationship between a father and his child. For purposes of
establishing paternity, a man is presumed to be the father, if he:
1.
Was married to the mother
when the child was conceived or born. He attempted to marry the mother
(even if the marriage was not valid) and the child was conceived or born
during the “marriage,” or
2.
Has his name on the birth
certificate or other legal form, such as a live birth acknowledgment
form, and neither parent has challenged it, or
3.
Married the mother after
the birth and agreed either to have his name on the birth certificate or
to support the child, or
4.
Welcomed the child into his
home and openly held the child out as his own.
EE. “Permanency Options” means options for the placement of a child in a
stable long term family environment that is in the best interest of the
child. In order of preference, the Navajo Nation shall:
1.
Reunify the child with the
parent(s), guardian(s) or custodian(s);
2.
Create a permanent
guardianship with a qualified relative;
3.
Adoption with a person(s)
enrolled or eligible for enrollment with the Navajo
4.
Adoption by a qualified
Native American;
5.
Adoption by a non-Native
American.
FF. “Protective Custody” means removal of a child by the Division or Law
Enforcement from the home upon a non-judicial determination that the
child is not safe within the home.
GG. "Protective Services" means a program in which a Division social
worker intervenes and takes necessary action, including removal of the
child from the home, to protect and stabilize a family in the best
interest and welfare of the child.
HH. "Protective Supervision" refers to the legal status created by the
Court, by which the Division is given authority to monitor the safety
and welfare of the child, no matter where he/she is placed for the
duration of the proceedings before the Court.
II. “Regional Children’s Review Board” means a five member board
representative of the various community resources (i.e. medical
personnel, legal advocates, educators, foster parents, peace makers,
etc.), at least one of whom is not responsible for case management of or
delivery of services to either the child or the parents who are the
subject of a permanency review in dependency proceedings.
JJ. "Shelter Care" means a temporary placement of a child approved by
the Division pending final disposition of the Court.
§ 1003. Courts; Generally
A. The Court is authorized to cooperate fully with any federal, state,
Navajo Nation, public or private agency to participate in any diversion,
rehabilitation, training, peacemaking programs and to receive grants in
aid to carry out the purposes of this Chapter.
B. The Court may accept or decline state court transfers of child
custody proceedings; however, it shall be the policy of the Navajo
Nation that, absent good cause, child custody proceedings involving
Navajo children should be heard in the Navajo Nation Courts.
§ 1004. Jurisdiction
A. The Court shall have jurisdiction over all proceedings in which a
child is alleged to be a dependent child, a child in need of
supervision, or a delinquent child.
B. The Court shall have jurisdiction of:
C. Territorial jurisdiction
D. Jurisdiction obtained by a Court over a child is retained until terminated by any of the following situations:
§ 1005. Venue
A. Venue for proceedings under this Chapter shall be determined by the
residence or domicile of the child or the judicial district where the
alleged act occurred. Venue exists concurrently in the District Courts
for Navajo children who reside outside Navajo Indian Country.
B. Where the residence of the child and the location of the alleged act
are in different districts, initiating proceedings in one district shall
bar subsequent filing of proceedings in other districts.
§ 1006. Division of Social Services; Responsibilities and Duties
A. The Division is the lead Navajo Nation agency that shall preserve and
restore the harmony and unity of the family by providing for the safety,
wellbeing and protection of children and families which come within the
jurisdiction of the Navajo Nation pursuant to this Code and established
policies and procedures. B. The Division shall provide the following protective services:
C. The Division may cooperate with such state and community agencies as
are necessary to achieve the purposes of this Chapter. The Division may
negotiate working agreements with other jurisdictions, subject to
ratification by the Navajo Nation Council.
§ 1007. Law Enforcement; Responsibilities and Duties
A. Law Enforcement shall investigate dependency, child in need of
supervision and delinquency reported or referred to it by any individual
or agency regarding all matters under this Chapter.
B. Law Enforcement shall be available twenty-four (24) hours a day seven
(7) days a week to respond to and investigate reports of alleged
dependency, child in need of supervision and delinquency. Law
Enforcement shall immediately consult with the Division regarding the
report if an emergency placement is necessary.
C. Law Enforcement shall conduct investigations of all reports of
dependency, child in need of supervision and delinquency pursuant to
established protocols, including identified time lines.
D. Upon the report of alleged abuse and/or neglect Law Enforcement shall
immediately notify and coordinate with the Division throughout the
investigation.
E. When conflicts of jurisdictional issues occur, the Law Enforcement
officer will notify the local agency jurisdiction by telephone and
follow-up with a copy of the report. F. Determination of priority for action shall be a joint decision of the responsible agencies and/or investigators through the exercise of their professional judgment.
§ 1008. Prosecutor; Responsibilities and Duties
A. The Office of the Prosecutor shall represent the Navajo Nation in all
proceedings under this Code.
B. The Prosecutors shall consult with the Division when proceedings are
initiated pursuant to Subchapter 2, Dependency Proceedings, of this
Chapter, herein, to ensure that the best interests of the child are
served.
C. When proceedings are initiated pursuant to Subchapter 3, Child in
Need of Supervision, or Subchapter 4, Delinquency Proceedings, of this
Chapter, the Prosecutor shall consider and dispose of the proceeding in
a way that restores Ké to the child, their family, and his/her
surroundings.
§ 1009. Detention and Shelter facilities; Standards
All detention and shelter facilities shall be in compliance with the
rules promulgated by the Division of Health.
§ 1010. Appeals
In cases where custody, placement and detention of a child is at issue,
the Navajo Supreme Court will immediately review the files, records and
transcripts from the trial Court and may render a decision without a
hearing. Proceedings under this Chapter shall be expedited in
furtherance of the best interests of the child.
§ 1011. Social and Legal Records;
Inspection A. Social, medical, psychiatric and psychological records of the Court concerning a child and produced or recorded by requirement or authority contained in this Chapter, including reports of preliminary inquiries, predisposition studies and supervision records of probationers shall be open to inspection only by the following:
B. All or any part of records or information secured from records listed
in Subsection (A), when presented to the Court in a proceeding under
this Chapter, shall be made available to the parties to the proceedings
and their counsel. The Court may refuse to disclose the identity of
informants only after finding that such disclosure will place the
informant in danger or that disclosure would not be in the child's best
interests.
C. Any unlawful disclosure of the information identified in Subsection
(A) herein shall be subject to the criminal and civil sanctions of the
Navajo Nation Privacy and Access to Information Act.
§ 1012. Sealing and Destroying of Records A. On motion by or on behalf of a child who has been the subject of a petition filed under this Chapter or on the Court's own motion, the Court may vacate its findings, orders and judgments on the petition and order the legal and social files and records of the Court, probation services and of any other agency in the case sealed. If requested in the motion, the Court shall also order law enforcement files and records sealed. An order sealing records and files may be entered if the Court finds that:
B. Notice of the motion shall be provided to parties and other
individuals having an interest in the proceedings and pursuant to the
Navajo Rules of Civil Procedure. C. Upon entry of the sealing order the record shall be permanently closed and may only be unsealed pursuant to an order of the Court thereafter by one of the following:
D. Any finding or allegations of delinquency or need of supervision
subsequent to the sealing order may by Court order be used as a basis to
set aside the sealing order.
E. A person who has been the subject of a petition filed under this
Chapter shall be notified of the right to have records sealed by the
Court at the end of the dispositional stage.
F. In delinquency proceedings all records shall be destroyed when the
child reaches the age of twenty-one (21) or by Court order.
§ 1013. Court Costs and Expenses
A. If, after due notice to the parent(s) or other person(s) legally
obligated to care for and support the child, and after a hearing, the
Court finds that such person(s) is financially able to pay all or part
of the Court costs, fees and expenses of this Section, the Court shall
order them to pay the costs and expenses and may prescribe the manner of
payment.
B. Whenever custody of a dependent child or a child in need of
supervision is vested in someone other than the child's parent(s), the
Court, after notice to the parent(s) or other person(s) legally
obligated to support the child and after a hearing and a finding that
they are financially able to afford all or part of the costs and
expenses of the support and treatment, may order such parent(s) or other
legally obligated person(s) to pay to the Court for remittance to the
custodian in the matter a reasonable sum that will cover all or part of
the expenses of the support and treatment of the child.
C. If the parent or other legally obligated person willfully fails or
refuses to pay the sum ordered, the Court may proceed with contempt
charges. An order for payment may be filed, and, if filed, shall have
the effect of a civil judgment.
TITLE 9. DOMESTIC RELATIONS
§ 1101. Children not taken into physical custody; Family Group
Conferencing
A. The goal of family group conferencing is to ensure families re-assume
primary responsibility, t’áá hwó ájít’eego, with guidance from the
Division, in regard to children’s safety and well-being to eliminate the
need for Court intervention.
B. The Division is required to refer every reported and substantiated
case of child abuse and neglect to a family group conference when the
abuse or neglect does not require removal.
C. The Division may refer cases involving family disputes or neglect
where the child has not been removed to family group conferencing
through the Peacemaking Program.
D. Concerned family members and professionals may refer any matter
concerning a child to family group conferencing either through the
Division or Peacemaking Program. Such a referral shall not preclude
removal if reasonable grounds exist to believe that the child is abused
and/or neglected and removal is necessary.
E. A Court may refer a matter to family group conferencing through the
Division or Peacemaking Program at any time after a petition is filed.
§ 1102. Taking into physical custody
A. A child may be taken into physical custody by the Division or Law
Enforcement officer if reasonable grounds exist to believe that the
child is abused and/or neglected and removal is necessary. The Division
or Law Enforcement officers shall have authorization to address the
immediate needs and emergency medical attention of the child during the
initial hold period prior to the filing of a petition.
B. Any Law Enforcement officer or the Division having a child in
temporary physical custody for reasons other than the commission of a
delinquent act may place the child pursuant to § 1108 herein.
C. If a child is taken into temporary physical custody the Division
shall obtain a medical clearance of the child within twenty-four (24)
hours.
D. If a child is taken into custody and is not released to the child's
parent(s), guardian(s) or custodian(s), the person taking the child into
custody shall give written notice thereof as soon as possible, and in no
case later than seventy-two (72) hours, excluding Saturdays, Sundays and
holidays, to the child's parent(s), guardian(s) or custodian(s), and to
the Prosecutor together with a statement providing the reason for taking
the child into custody. If no parent(s), guardian(s) or custodian(s) can
be found the Division may give notice at the last known physical address
or to an immediate relative of the parent(s), guardian(s) or
custodian(s).
E. Temporary custody shall not exceed One hundred-twenty (120) hours
from the time the child is initially taken into physical custody,
excluding Saturdays, Sundays and holidays.
§ 1103. Release or delivery from physical custody A. The Law Enforcement officer taking an allegedly abused and/or neglected child into physical custody shall within twenty-four (24) hours:
B. The Division or Law Enforcement officer taking the child into custody
shall give written notice thereof as soon as possible, and in no case
later than seventy-two (72) hours, to the child's parent(s), guardian(s)
or custodian(s) and to the Prosecutor together with a statement
providing the reason(s) for taking the child into custody.
C. The Division shall review the need for continued custody within a
reasonable time after delivery of the child to the facility and shall
release the child from custody if appropriate. The Division shall
determine whether the child can be released from custody with the
provision of appropriate services to the family, or under specified
restrictions.
§ 1104. Preliminary assessment; Family Conference; Referral A. The Division shall conduct a family conference within forty-eight (48) hours of the child being taken into custody, excluding Saturdays, Sundays and holidays. The Division will give notice of the conference to the parent(s), guardian(s) or custodian(s) of the child by all reasonable means but, if the parent(s), guardian(s) or custodian(s) cannot be notified or located or refuse to participate in the conference, the conference shall still go forward. Upon completion the matter may be referred:
B. Upon commencement of the family conference, the parent(s),
guardian(s) and/or custodian(s) of the child shall be informed of
available legal services in writing and that they have the right to be
represented by counsel and no person may be compelled to appear at any
conference, to produce any papers, or to visit any place.
C. For those cases that may require Court intervention, Law Enforcement
and/or the Division shall promptly make a verbal report to the
Prosecutor by telephone or in person for preliminary inquiry, and
followed up by a written report if deemed necessary.
D. The written report shall contain the names and addresses of the child
and his/her parent(s), guardian(s) or custodian(s), the child's age, the
nature and extent of the child's abuse and/or neglect, including any
evidence of previous abuse and/or neglect and other information that
might be helpful in establishing the cause of abuse and/or neglect and
the identity of the person or persons responsible for the abuse and/or
neglect, and where the child has been referred or can be found.
§ 1105. Petition; Form and Content
A petition initiating any proceeding under this Subchapter shall be
captioned "In the Court of the Navajo Nation, Judicial District of
(judicial district)", and entitled, "In the Matter of a child, census
number: _______DOB:_______ and shall set forth with specificity:
A. The facts necessary to invoke the jurisdiction of the Court.
B. If the child is alleged to be a dependent child, a citation to the
appropriate Section of the Chapter shall be included.
C. A plain and concise statement of facts upon which the allegations are
based, including the date, time and location at which the alleged act(s)
occurred.
D. The name, birth date, residence and address and clan (if known) of
the child.
E. The name(s) and residence addresses of parent(s), guardian(s), and
custodian(s) of the child; and if none of the parent(s), guardian(s) or
custodian(s) reside or can be found within the Navajo Nation, or if
their residence or addresses are unknown, the name of any known adult
relative residing within the Navajo Nation, or if none, the known adult
relative living nearest to the Court.
F. The name of the Prosecutor presenting the petition.
G. Whether the child is in custody, and, if so, where the child is
placed and the time and date the child was taken into custody.
H. The efforts made by the Division or other agencies, persons or
entities to prevent the removal of the child from the parent(s),
guardian(s) or custodian(s) through the provision of specific identified
services, if appropriate, including whether family group conferencing
was conducted.
I. If any matters required to be set forth by this Section are not
known, a statement that they are not known should be made.
§ 1106. Filing of Petition
A. A petition shall be filed by the Prosecutor within twenty-four (24)
hours from the time the Division refers the matter to the Prosecutor,
excluding Saturdays, Sundays and Court holidays, and, if not filed
within the stated time, the child shall be released to the parent(s),
guardian(s) or custodian(s). B. Any person who has knowledge of the facts alleged or is informed of them and believes that they are true, upon information and belief, may cause a petition to be initiated by the Prosecutor alleging one or more of the following, the child:
§ 1107. Informal Adjustment
A. At any time after a petition is filed, but before the adjudicatory
hearing the Prosecutor and respondent(s), with concurrence of the
Division, may file a motion to suspend the proceedings.
B. Informal adjustment shall only be utilized when it promotes the best
interests of the child and protects the child’s health and safety.
C. Respondent(s) shall comply with any recommended informal adjustment
plan developed by all parties involved and supervised by the Division,
which shall not exceed six (6) months from the date all parties have
signed and agreed to the plan, unless the plan is completed earlier or
parties agree to extend; such extension shall not exceed ninety (90)
days.
D. Upon completion of the plan the petition will be dismissed by motion
of the Prosecutor.
E. Should the respondent(s) not comply with the plan, the dependency
action may be reinstated by motion of the Prosecutor.
§ 1108. Shelter Care; Motion and Hearing
A. After or concurrent with the filing of the petition, the Prosecutor
or an individual who is a member of the Navajo Bar Association and
employed/contracted by the Navajo Nation may file a motion for an order
of temporary legal and/or physical custody.
B. A hearing on the motion shall be held within twenty-four (24) hours
from the time the motion is filed, excluding Saturdays, Sundays and
Court holidays. If parent(s), guardian(s) or custodian(s) cannot be
found for timely notification of the hearing, the Court may in its
discretion continue the hearing for a period not to exceed forty-five
(45) calendar days. C. A child shall not remain in custody unless one of the following criteria is met at the shelter care hearing. Probable cause exists to believe that:
D. Any order issued pursuant to this Section, which removes (even
temporarily) the child from his/her home shall contain the findings:
“that reasonable efforts to prevent removal from the family were made or
that it is reasonable to make no efforts to reunite the family, and that
out of home placement would be in the best interest of the child or that
remaining in the current residence is contrary to the welfare of the
child.”
E. Written notice of the custody hearing stating the time, place and
purpose of the hearing shall be given by the person designated by the
Court to the child's parent(s), guardian(s) or custodian(s), at their
last known physical address, or if the parent(s), guardian(s) or
custodian(s) cannot be found, to an immediate relative.
F. A hearing officer may be appointed by the Court to recommend findings
to the judge regarding the need for further custody of the child.
G. At the commencement of the custody hearing, the judge or hearing
officer shall advise the parties of their basic rights, including their
right to be represented and appointed legal counsel. H. The Court, at its discretion, may appoint a guardian ad litem. The duties of the guardian ad litem shall be to:
I. If the judge or hearing officer finds out of home placement is
appropriate under criteria established by this Section, the judge shall
issue an order placing the child in an appropriate location.
J. If the Court finds out of home placement is not appropriate under the
criteria established by this Section, the judge shall order release of
the child, but may order protective supervision until further order of
the Court.
K. If the Court determines that the child requires assessments the
Division will make the necessary arrangements.
L. All relevant and material evidence helpful in determining the need
for continued custody may be admitted by the Court even though it would
be otherwise inadmissible in a hearing on the petition.
M. If a parent(s), guardian(s), or custodian(s) was properly notified
and failed to appear or waive appearance at the custody hearing, the
Court shall proceed with the hearing.
§ 1109. Shelter Care Placement
A. Placement shall not be in a jail or other facility intended or used
for the incarceration of adults or for detention of delinquent children. B. A child may be placed in the temporary custody of:
§ 1110. Preliminary Hearing
Within fifteen (15) calendar days after the shelter care hearing, the
Court shall schedule a preliminary hearing to address the following:
A. Review the status of service of process;
B. Inform parent(s), guardian(s) or custodian(s) of their continuing
legal rights to representation for the duration of the proceedings;
C. Advise parent(s), guardian(s) or custodian(s) of the petition filed
and contents therein;
D. Review the response to the petition. If the time to respond to the
petition is waived, the Court may proceed pursuant to § 1111 or § 1113,
herein;
E. Narrow the issues including a statement from the parties regarding
stipulations or disputes;
F. Consider alternative processes, i.e. informal adjustments, dismissal,
or peacemaking;
G. If no settlement, schedule an adjudicatory hearing to take place no
later than thirty (30) calendar days.
§ 1111. Adjudicatory Hearing
A. A hearing, shall be conducted by the Court separate from other
proceedings. All hearings will be without a jury.
B. Hearings shall be closed to the general public. Only the parties,
their counsel, witnesses and other persons requested by a party and
approved by the Court may be present at a closed hearing. In addition,
persons the Court finds to have a proper interest in the case may be
admitted by the Court to closed hearings on the condition that they
respect the confidentiality of the proceedings.
C. Those persons or parties who intentionally divulge information in
violation of Subsection (B) may be found liable for a civil offense.
Persons found in violation of this Section by a preponderance of the
evidence may be ordered to pay a civil fine not to exceed five hundred
dollars ($500.00), and may be subject to other action by the Court
necessary to protect the confidentiality of the proceedings and the best
interest of the child. D. The Court shall make the following findings:
§ 1112. Predisposition studies, reports and examinations
A. Prior to holding a dispositional hearing, the Court shall direct a
predisposition study and written report from the Division. B. The predisposition study required under Subsection (A) shall contain the following information:
C. A copy of the predisposition report shall be provided by the Division
to the Court and to all parties or their counsel, if any, at least but
not less than five (5) days, excluding Saturdays, Sundays and Court
holidays before the dispositional hearing.
§ 1113. Disposition Hearing A. The Court may in its judgment make any of the following dispositions in the best interests of the child and shall consider:
B. This hearing, if not held in conjunction with the adjudicatory
hearing shall commence no later than thirty (30) calendar days after
conclusion of the adjudicatory hearing.
C. If the Court orders continued out of home placement, the Court shall
make a finding that return of the child would be contrary to the welfare
of the child and that reasonable efforts have been made to prevent
continued removal of the child. In addition, 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.
D. The Court may consider all relevant and material evidence helpful in
determining the questions presented, including oral and written reports,
and may rely on such evidence even though not otherwise admissible.
E. By motion of a party or by its own authority, the Court may continue
the hearing for a period not to exceed ten (10) working days to receive
reports and other evidence bearing on the need for care or
rehabilitation or in connection with disposition. During any continuance
under this Section, the Court shall issue an appropriate order for
temporary legal custody.
F. Reasonable efforts shall be made to preserve and reunify the family,
with the paramount concern being the child’s health and safety. The
Court shall make a determination within sixty (60) days of the child
being removed that reasonable efforts to reunite the family have been
offered to the family. Such efforts may include the Court making a
determination that reunification should be facilitated by referring the
family to the Peacemaking Program.
G. The Court may determine that reasonable efforts are not required to
be made when the Court finds the efforts would be futile; or the
parent(s), guardian(s) or custodian(s) has subjected the child to
aggravated circumstances. In which case, a permanency review hearing,
pursuant to § 1115 herein, shall be held within thirty (30) calendar
days of such a determination.
§ 1114. Regional Children’s Review Board
A. The Courts shall authorize a Regional Children’s Review Board to
review cases determined by the Court to be long-term out-of-home
placements.
B. The Division Central Administration shall create policies and
procedures detailing the functions of the Regional Children’s Review
Board. These policies and procedures shall include the necessary
criteria and continued membership on a Regional Children’s Review Board. D. Regional Children’s Review Boards shall:
§ 1115. Review Hearings; Permanency
A. The first review hearing shall be conducted by the Court and held
within six (6) months from the date of removal or the date of the
judicial finding of abuse and/or neglect, whichever is earlier and every
six (6) months thereafter. B. The permanency review hearing shall be held every six (6) months after the first review hearing of a child’s dispositional order or within twelve (12) months of a child entering foster care. For purposes of this Section, a child shall be considered to have entered foster care on the earlier of:
C. The permanency review hearing shall be held every six (6) months when
a child is in the legal custody of the Division.
D. The first review and permanency hearing shall be conducted by the
Court. Subsequent review and permanency hearings may be referred to a
Regional Children’s Review Board for a review as established by the
Division policies and procedures, as well as, § 1114(D), herein, when
the Court has determined that the placement is long-term out-of-home. E. These hearings shall review any progress made regarding any treatment plan ordered at the disposition hearing and include the following:
F. If the Division determines that the most appropriate plan is
placement in another planned permanent living arrangement and not one
identified in Subsection (E)(6), herein, the Court shall ensure that the
Division, by compelling evidence, demonstrate that this is in the best
interest of the child and the most appropriate plan. The Court shall
enter written factual findings and conclusions of law supporting its
judgment.
§ 1116. Voluntary Placement
A. A parent can have his/her child placed voluntarily out of home by
making such a request to the Division.
B. Such placement shall be by written agreement between the Division,
the parent(s) and any proposed temporary placement. The agreement shall
be filed with the Court by the Prosecutor for docketing and recognition.
D. The agreement shall be in effect for up to one hundred fifty (150) days. A hearing shall be held on the status of the voluntary out of home placement by the one hundred fiftieth (150th) day. The Prosecutor can vacate the hearing if the child returns to the parent(s).
§ 1117. Duty to report child abuse; penalty for failure to report
A. Any medical provider, school personnel, law enforcement official, or
social worker, acting in his or her official capacity, or any appointed
or elected Naat’aanii, having a reason to believe that any abuse or
neglect has been inflicted upon a child shall report the matter
immediately to a Law Enforcement official or the Division.
B. Any other person having reason to believe that a child has been
subjected to serious injury or injuries have been inflicted upon the
child as a result of abuse or neglect shall report the matter
immediately to a Law Enforcement official or the Division.
C. A lay person who provides a report of abuse or neglect may at his/her
discretion remain anonymous.
D. Any person failing, neglecting or refusing to report a suspected case
of child abuse or neglect pursuant to this Section may be subject to
civil sanction including but not limited to a penalty not to exceed
five-hundred dollars ($500.00).
§ 1118. Waiver of Privilege and Immunity
A. In any proceeding alleging child abuse or neglect under this Chapter
resulting from a report submitted under § 1117, or in any proceeding in
which the report or any part of its contents is sought to be introduced
in evidence, the report or its contents or any facts related thereto or
to the condition of the child who is the subject of the report shall not
be subject to a physician-patient privilege or similar privilege, rule
or law against disclosure.
B. Any person reporting an instance of suspected child abuse or neglect,
or participating in a judicial proceeding brought as a result of a
report submitted under § 1117 shall be presumed to be acting in good
faith and shall be immune from civil or criminal liability, unless a
finding is made that the person acted in bad faith or with malicious
purpose.
C. The Division shall be immune from civil or criminal liability for
services rendered pursuant to this Chapter, unless the Division acted
with gross negligence or malice or unless the Division has been charged
with or is suspected of abusing, abandoning or neglecting the child in
question.
§ 1119. Interlocutory disposition order in cases where service is made
by publication; effect A. When a parent cannot be served pursuant to the Navajo Rules of Civil Procedure, the Court shall issue an order of publication to comply with those rules. After service by publication has been completed and the parent(s), guardian(s) or custodian(s) still fails to appear, the Court shall conduct a provisional hearing, which shall enter an interlocutory order of the following:
B. The interlocutory order shall remain in effect for no longer than six
(6) months and if the parent(s), guardian(s) or custodian(s) still fails
to appear within that period, the interlocutory order shall become a
final judgment and proceed pursuant to § 1113 herein.
C. The Court shall conduct the proceedings pursuant to §§ 1111 and 1113
[adjudication and disposition] upon the parent(s), guardian(s) or
custodian(s) presence at the final hearing or pursuant to a voluntary
waiver of notice and appearance at any time during the proceedings.
TITLE 9. DOMESTIC RELATIONS A. Proceedings shall be initiated by the filing of a petition signed by the Prosecutor. B. Any governmental employee, including social workers and school personnel; or parent(s), guardian(s) or custodian(s), who has knowledge of the facts alleged or is informed of them and believes that they are true; or a Law Enforcement official upon information and belief, may cause a petition to be initiated by the Prosecutor. C. The Prosecutor shall determine whether a petition should be filed or whether the matter should be referred to other appropriate forums/agencies including peacemaking and diversion programs to address the needs of the minor child and to determine what is in the child’s best interest including family involvement.
D. Where there is an indication that the child may be mentally ill or
mentally disabled, the Court, the Prosecutor, other counsel or party may
motion for an order to have the child examined by a psychiatrist or
psychologist prior to a hearing on the merits of the petition. A petition initiating any proceeding under this Subchapter shall be captioned "In the Court of the Navajo Nation, Judicial District of(judicial district)", and entitled, "In the Matter of _______a child, census number: _______DOB:_______, and concerning __________, parents”; and shall set forth with specificity: A. The facts necessary to invoke the jurisdiction of the Court. B. A statement that the child is in need of supervision, care or rehabilitation. C. A plain and concise statement of facts upon which the allegations are based, including the date, time and location at which the alleged act(s) occurred, including the appropriate citations to the Code. D. The name, birth date, residence and address of the child. E. The names and residence addresses of parent(s), guardian(s), and custodian(s); and if none of the parent(s), guardian(s), or custodian(s), reside or can be found within the Navajo Nation, or if their residence or addresses are unknown, the name of any known adult relative residing within the Navajo Nation, or if none, the known adult relative living nearest to the Court. F. The name of the Prosecutor presenting the petition and the date and time presented. G. A statement of the date referred to the Prosecutor and that the petition was filed within thirty (30) days of that date. H. Whether the child is in protective custody, and, if so, the place and the time he/she was taken into custody. I. List of Prosecutor’s proposed witnesses. J. If any matters required to be set forth by this Section, not including the allegations, are not known, a statement that they are not known should be made.
§ 1203. Filing and Dismissal of Petition B. A petition shall be dismissed with prejudice if a preliminary hearing is not held within:
C. A petition shall be dismissed if filed more than thirty (30) calendar days from the date of the information provided to the Prosecutor. § 1204. Basic Rights A. The child shall be, from the time of the filing of the petition or, in an emergency, when taken into protective custody, advised of the privilege against self incrimination, including the child’s right to have his/her parent(s), guardian(s), or custodian(s) present. If taken into protective custody, the child shall not be questioned except to determine identity and to determine the name of the child's parent(s), guardian(s), or custodian(s). B. In a proceeding on a petition alleging a child in need of supervision:
C. A child detained shall not be fingerprinted, photographed,
genetically tested for criminal identification purposes except by order
of the Court. If ordered, the fingerprints or photographs, or genetic
test shall be used only as specified by the Court. Any person who
willfully violates the provisions of this Section is subject to a civil
fine of no more than five hundred dollars ($500.00).
E. A party, including the minor child or parent(s), guardian(s), or custodian(s), is entitled to the opportunity to introduce evidence and be heard, and to confront and cross examine witnesses testifying against the child, and to admit or deny the allegations in a petition. F. Where appointment of counsel for the child is made, the Court shall appoint counsel from the members of the Navajo Nation Bar Association and those appointed shall serve the child without compensation, unless compensation is authorized by the Court. § 1205. Temporary Protective Custody A. A child may be temporarily taken into protective custody:
B. Protective Custody of a child without a Court order shall not exceed seventy-two (72) hours, excluding Saturdays, Sundays and Court holidays.
§ 1206. Release or delivery from Protective Custody
B. A child taken into protective custody shall not be placed in a jail or other facility intended or used for the incarceration of adults or for the detention of delinquent children, but shall be taken into protective custody in the following shelter care facilities:
C. When a child is delivered to an appropriate shelter care facility, the Division shall review the need for continued protective custody within twenty-four (24) hours after delivery of the child to the facility and shall release the child from protective custody or continue protective custody pursuant to the criteria in § 1207(F), herein. D. If a child is taken into protective custody and is not released to the child's parent(s), guardian(s) or custodian(s), the person taking the child into protective custody shall give written notice i.e. temporary custody notice), within seventy-two (72) hours of taking the child into protective custody, to the child's parent(s), guardian(s) or custodian(s) and to the Court together with a statement providing the reason for taking the child into protective custody. E. In all cases when a child is taken into protective custody, the child shall be released to his/her parent(s), guardian(s) or custodian(s) in accordance with any written conditions of release and with the time limits set forth in this Section. § 1207. Protective Custody Hearing; Court Determination A. Where a child has been taken into protective custody:
B. Written notice of the hearing shall be served to the child's parent(s), guardian(s) or custodian(s), and to the child pursuant to Navajo Nation Rules of Civil Procedure. Parties, counsel and child may appear electronically for this hearing. C. The Court may appoint a hearing officer for the purpose of holding protective custody hearings under the supervision of a judge. D. At the commencement of the hearing, the Court shall advise the parties, including the minor child, of their basic rights pursuant to § 1204 herein, and shall appoint counsel and/or a guardian ad litem, if appropriate. E. At the hearing all relevant and material evidence helpful in determining the need for protective custody may be admitted by the Court even though it would be otherwise inadmissible in a hearing on the petition. F. If the Court finds, based on probable cause, that the child's protective custody is necessary pursuant to one of the criteria below, the Court shall issue an order of protective custody to an appropriate facility.
G. The judge shall order the release of the child with one or more of the following conditions:
§ 1208. Preliminary Hearing A. Purpose of the Preliminary Hearing is to determine probable cause that the child is in need of supervision and will proceed as follows:
B. At the conclusion of the preliminary hearing, the Court shall set the matter for:
§ 1209. Continuance under supervision without judgment; Consent decree; Disposition A. At any time after the filing of a child in need of supervision petition, and before the entry of a judgment, the Court may, on motion of the Prosecutor or counsel for the child or the child, suspend the proceedings and continue the child under supervision in his/her own home under terms and conditions negotiated by the parties including use of available diversion programs and supervised by probation services. The Court order continuing the child under supervision pursuant to this Section shall be known as a "consent decree" and shall be voluntary by all the parties. B. A consent decree shall remain in force for a period not to exceed six (6) months unless a motion for a hearing is filed by either the Prosecutor or the child’s counsel or the child to extend, or revoke the consent decree, or terminate court supervision. C. Upon completion of the provisions of the consent decree or expiration, a party shall motion to dismiss the original petition with prejudice. § 1210. Adjudicatory Hearings; Findings; Dismissal A. Hearing on petitions shall be conducted by the Court separate from other proceedings and without a jury. The proceedings shall be recorded. The Court shall advise the parties of their basic rights pursuant to § 1204, herein. B. All hearings shall be closed to the general public. Only the parties, their counsel, witnesses and other persons requested by a party and approved by the Court may be present at a closed hearing, and on the condition that they respect the confidentiality of the proceedings. C. Those persons or parties who intentionally divulge information in violation of Subsection (B) of this Section shall be guilty of an offense. Persons found guilty of violating the provisions of this Section shall be subject to pay a civil fine not to exceed five hundred dollars ($500.00). D. The Court after hearing all of the evidence shall make and record its findings on whether or not the child is in need of supervision by clear and convincing evidence, in the absence of such findings the Court shall dismiss the petition without prejudice and shall order release of the child. E. The Court shall schedule a dispositional hearing and order predisposition study and report if that document has not been prepared and received. Such hearing shall be scheduled within thirty (30) days. The Court shall make an appropriate order for protective custody, if necessary.
§ 1211. Predisposition Studies; Reports and Examination B. The predisposition study shall contain the following information:
C. The Court may order that an adjudicated child be transferred to an appropriate facility for a period of not more than thirty (30) calendar days for purposes of diagnosis with direction that the Court be given a written report at the end of that period indicating the disposition which appears most suitable. § 1212. Disposition A. In the dispositional hearing, the Court may consider all relevant and material evidence helpful in determining the questions presented, including oral and written reports, and may rely on such evidence to the extent of its probative value. B. The Court may enter its judgment making any of the following dispositions for the supervision, care and rehabilitation of the child:
C. Unless a child found to be in need of supervision is also found to be delinquent, the child shall not be confined in an institution established for the care and rehabilitation of delinquent children or an adult criminal facility. D. Whenever the Court vests custody in an agency or institution it shall transmit with the dispositional order copies of all clinical reports, predisposition studies and reports and other information in its possession pertinent to care and treatment of the child. E. Whenever the Court orders the child to be taking into protective custody and it is necessary to remove the child from that initial placement, Probation Services or the Division, prior to removing the child, shall contact the Prosecutor in writing to file a notice of change of placement to the Court, or to request a hearing if the situation warrants. In cases of emergency, a child can be removed prior to making contact with the Prosecutor. However, Probation Services or the Division shall contact the Prosecutor to file notice of change of placement or request a hearing as soon as possible after the removal. § 1213. Contempt A. A child allegedly violating a valid order of the Court shall be subject to an order to show cause hearing, where the court will make a determination of whether the allegation(s) are true. If the Court finds that the allegation(s) are true the Court shall examine all possible options to address the child’s compliance with the Court order, including other alternatives and resources available, which shall not include detention. B. If the child continues to violate the orders of the Court and all possible options to address the issues of noncompliance have been considered, the Prosecutor may consider a delinquency proceeding and it shall proceed in accordance with the Delinquency provisions herein.
TITLE 9. DOMESTIC RELATIONS § 1301. Taking Into Temporary Custody A. A child may be taken into temporary custody by Law Enforcement:
B. In any of the situations above Law Enforcement shall be required to take the child to be medically cleared before incarcerating the child in a youth detention facility. C. The Law Enforcement officer taking the child into custody shall notify the parent(s), guardian(s) or custodian(s) as soon as possible but no later than twenty-four (24) hours. D. The above grounds shall govern the decision to determine whether or not further detainment is appropriate prior to Court intervention. § 1302. Release or Delivery from Temporary Custody A. A Law Enforcement officer taking a child into temporary custody shall, with all reasonable speed:
B. If the child is believed to be suffering from a serious physical or mental condition or illness which requires either prompt treatment and/or diagnosis, the child shall be transported to a medical facility. C. If a child is taken into custody and is not released, Law Enforcement shall give written notice to the parent(s), guardian(s) or custodian(s) by delivering notice to the child’s normal place of residence, no later than seventy-two (72) hours, and shall provide reason(s) for taking the child into custody. D. An alleged delinquent child may be detained:
E. Law Enforcement shall deliver the alleged delinquent child either to the probation office or to a place of detention designated by the Court, a probation officer, prior to placing the child in detention, shall review the need for detention and shall release the child from custody unless detention is appropriate under the criteria established by the Children's Code, or has been ordered by the Court. If detention appears inappropriate, the probation officer shall request the presenting officer to petition the Court for a review of its decision. F. A child alleged to be delinquent shall not be detained in a jail or other facility intended or used for the incarceration of adults. G. A child under the age of eight (8) years of age shall not be committed to a detention facility but shall be delivered to the on-call probation officer who shall assess the child based on his/her observations for the following:
§ 1303. Commencement of Proceedings by Petition A. Proceedings under this Subchapter shall be initiated by the filing of a petition signed by the Prosecutor. B. Any person who has knowledge of the facts alleged or is informed of them and believes that they are true, or a Law Enforcement official upon information and belief, may cause a petition to be initiated by the Prosecutor. § 1304. Preliminary Inquiry and Referral A. Allegations that a child is a delinquent child shall be referred to the Prosecutor, who shall conduct a preliminary inquiry. Upon completion of the inquiry the Prosecutor shall:
B. Referral by Law Enforcement
C. During the preliminary inquiry of the law enforcement referral, the Prosecutor shall coordinate with the probation officer in cases where the child is detained. § 1305. Petition Filing and Dismissal A. A petition shall be filed by the Prosecutor with the Court within forty-eight (48) hours of receiving the arrest report from Law Enforcement, excluding Saturdays, Sundays and Court holidays, and, if not filed within the stated time, the child shall be released. B. If a child is detained and further detainment is sought, the petition shall be filed with the Court within twenty-four (24) hours from receipt of the arrest report. C. Once the Court determines a petition alleging delinquent act(s) was filed beyond the thirty (30) calendar day preliminary inquiry, the petition shall be dismissed with prejudice unless upon a proper showing of due diligence of timely filing by the Prosecutor, then the Court may authorize the petition to be re-filed within twenty (20) calendar days from the date of dismissal. § 1306. Petition; Form and Content A petition initiating any proceeding under this Subchapter shall be captioned "In the Court of the Navajo Nation, Judicial District of(judicial district)", and entitled, "In the Matter of _______a child, tribal enrollment number: _______DOB:_______ and shall set forth with specificity: A. The facts necessary to invoke the jurisdiction of the Court. B. A statement that the child has engaged in a delinquent act(s) and is in need of care or rehabilitation. C. There shall be one petition filed for each alleged violation citing the appropriate Section of the Criminal or Motor Vehicle Code. D. A plain and concise statement of facts upon which the allegations are based, including the date, time and location at which the alleged act(s) occurred. E. The name, birth date, physical and mailing address of the child. F. The names and physical and mailing addresses of parent(s), guardian(s), custodian(s) and spouse, if any, of the child; and if none of the parent(s), guardian(s), custodian(s) or spouse, if any, reside or can be found within the Navajo Nation, or if their physical or mailing addresses are unknown, the name of any known adult relative residing within the Navajo Nation, or if none, the known adult relative living nearest to the Court. G. The name of the Prosecutor presenting the petition and the date and time presented. H. Whether the child is in custody, and if so, the place of detention and the time the child was taken into custody. I. Assertion that Petition is filed within the thirty (30) calendar days of preliminary inquiry or pursuant to § 1303(B). J. Name and address of any witness(es) on behalf of the Navajo Nation. K. If any matters required to be set forth by this Section are not known, a statement that they are not known should be made. § 1307. Preliminary Diversion In lieu of filing a petition, the Prosecutor, the probation officer, the child and the parent(s), guardian (s) or custodian(s) may participate in a diversion program; such program shall be monitored by Probation Services. A. The diversion agreement shall include the following:
B. A child’s participation in any diversion shall:
C. A child deemed to have committed a violent or serious act or is a chronic offender, shall not be eligible for the diversion program. D. In the event of any violation of the diversion program, the probation officer shall refer the matter to the Prosecutor and a petition may be filed with the Court. § 1308. Preliminary Hearing A. A petition alleging that a child is an alleged offender shall be dismissed with prejudice if a preliminary hearing is not held within:
B. The Hearing may be continued upon motion of the Prosecutor or upon the Court’s own motion for any of the following:
C. A continuance shall not exceed ten (10) calendar days, if the child is in custody, or twenty (20) calendar days if the child is not in custody. D. At the conclusion of the preliminary hearing, the Court shall set the matter for:
§ 1309. Consent Decree A. At any time after the filing of a petition, and before the entry of a judgment, the Court may, on motion of the Prosecutor, the child, and/or counsel for child suspend the proceedings and continue the child under supervision in his/her own home under terms and conditions negotiated by the parties and supervised by Probation Services. The Court order continuing the child under supervision pursuant to this Section shall be known as a "consent decree". The consent decree shall also include a provision for tolling. B. If the child does not agree to enter into a consent decree the Court shall proceed to findings, adjudication and disposition of the case.
C. A consent decree shall remain in force for a period not to exceed six
(6) months unless the decree is discharged by Court pursuant to
recommendation by the Probation Officer. Prior to the expiration of the
six (6) month period, and upon the application of probation services or
any other agency supervising the child under a consent decree, the Court
may extend the decree for an additional three (3) months in the absence
of objection to extension by the child. A copy of the application shall
be served on the child or his/her counsel and he/she shall have thirty
(30) calendar days from the date of service to object to the
application. If the child objects to the extension, the Court shall hold
a hearing on the issue of extension.
E. A child who is discharged by Probation Services or who completes a period under supervision without reinstatement of the original delinquency judgment shall not be in jeopardy again in any Court for the same offenses or conduct. Nothing in this Section precludes a civil suit against the child and his/her parent(s) for damages arising from his/her conduct. F. A judge who elicits or examines information or material involving a child that would be inadmissible in a hearing on the allegation(s) of the petition shall not, over the objection of the child, participate in any subsequent proceedings on the delinquency petition if a consent decree is:
§ 1310. Basic Rights A. In all proceedings alleging the delinquency of a child under this Chapter, the child has a right to be represented by legal counsel. Indigency shall be calculated using the income of the parent(s) unless the parent(s) is/are the victim(s) of the alleged delinquent act. Pursuant to guidelines utilized by the Navajo Nation Courts for criminal appointments, the Court shall appoint counsel from the Office of Navajo Public Defender or members of the Navajo Nation Bar Association and those appointed shall serve the child without compensation, unless otherwise authorized by the Court. B. The Court shall advise the child before the Court of his/her basic legal rights under this Chapter at each separate appearance and advise the child of their continuing rights for the duration of the Court proceedings, including peacemaking. C. A child alleged to be a delinquent child shall, from the time of being detained and/or taken into custody be advised of his/her right to remain silent. The child shall not be questioned except to determine identity and to determine the name of the child’s parent(s), guardian(s) or custodian(s). While the child is in a detention facility, he/she shall not be questioned without the presence of a parent(s), guardian(s), custodian(s), and/or legal counsel. D. In a proceeding on a petition, a child is entitled to the opportunity to introduce evidence and be heard, to confront and cross-examine witness(es) testifying against him/her, and to admit or deny the allegations in the petition. E. In a proceeding on a petition:
F. A child shall not be fingerprinted, photographed, genetically tested for criminal identification purposes except by order of the Court. If ordered, the fingerprints or photographs, or genetic test shall be used only as specified by the Court. Any person who willfully violates the provisions of this Section shall be subject to sanctions by the Court, including fines not to exceed five hundred dollars ($500.00). G. In all proceedings on a petition alleging delinquency in those instances specified under other provisions of this Chapter, the Court shall make a preliminary finding on the issue of whether the child’s interests are not adequately represented by the parties and shall appoint a guardian ad litem to represent the interests of the child. H. The Court, at any state of a proceeding shall appoint a guardian ad litem for a child if the child has no parent(s), guardian(s) or custodian(s) appearing on behalf of the child or if his/her interests conflicts with those of his/her parent(s), guardian(s) or custodian(s). A party to the proceedings or an employee or representative of a party shall not be appointed as guardian ad litem. I. The Court shall appoint a temporary guardian for a child if the Court determines that the child does not have a parent or a legally appointed guardian in a position to exercise effective guardianship. No officer or employee or an agency that is vested with legal custody of the child shall be appointed guardian of the child except when parental rights have been terminated and the agency is authorized to place the child for adoption. J. Any offense similarly alleged in a petition for criminal proceedings or other actions in the adult Court are barred if the Court has initiated separate proceedings or has accepted a child’s admission of the allegations of a petition. A civil proceeding or peacemaking may be subsequently initiated to address nályééh. § 1311. Detention hearing required for detained child; Court Determination and Disposition A. Where a child who has been detained and is not released a hearing shall be held within twenty-four (24) hours, excluding Saturdays, Sundays and Court holidays from the filing of a petition to determine whether continued detention is required. B. Written notice of the hearing stating the time, place and purposes shall be given to the person designated by the Court and served to the child's parent(s), guardian(s), custodian(s) or spouse, if any, and the child who is alleged to have committed the delinquent act(s). C. At the commencement of the hearing, Court shall advise the child of their basic legal rights pursuant to § 1310, herein. D. At the hearing all relevant and material evidence helpful in determining the need for detention may be admitted by the Court even though it would be otherwise inadmissible in a hearing on the petition. E. If the Court finds the child's detention is appropriate the child shall not be released and shall remain in detention. Law Enforcement or the detention officer shall immediately return the child to a juvenile detention facility. F. Detention shall be ordered based on the existence of probable cause, pursuant to the following criteria, the child:
G. If the Court finds that detention of the child is not appropriate the Court shall order the immediate release of the child, but in so doing, may order one or more of the following conditions:
H. An order releasing a child on any condition in this Section may at any time be amended by Court order to impose additional or different condition(s) of release or to return the child to custody or detention for failure to conform to the conditions originally imposed. The release agreement to have the child returned to the Court when requested shall be signed by the child, parent, guardian or custodian. § 1312. Transfer to Adult Court; Hearing A. After a petition has been filed alleging a delinquent act, the Court may, before a hearing on the merits, transfer the matter for Prosecution to the adult Court after a transfer hearing, if:
B. A hearing on whether the transfer should be made is held in conformity with the rules of evidence and the burden of proof is clear and convincing. The hearing will be to the Court without a jury. C. A written transfer order containing specific findings and reasons for the order terminates the proceedings under this Subchapter over the child with respect to the delinquent act(s) alleged in the petition. D. Prior to the hearing, the probation officer shall prepare for the Court and make available copies to the child, child’s counsel or parent(s), guardian(s) or custodian(s), a pre-dispositional report relevant to the issues described in Subsection (A)(4)(a) through (e) of this Section and the Court shall hear evidence and make specific findings in regards thereto. Gathering of such information for the pre-dispositional report shall not include any interviews with the child regarding the merits of the alleged offense. E. If transfer is ordered and continued detention is required pending the proceedings in the adult Court, the child shall be detained in a juvenile facility. F. No child found guilty of any Motor Vehicle Code violation may be incarcerated in an adult facility. § 1313. Adjudicatory Hearings; Findings; Dismissal
A. Hearing on petitions shall be conducted by the Court separate from
other proceedings without a jury. The proceedings shall be recorded. C. The Court shall determine if the allegation(s) of the petition are admitted or denied. If the allegation(s) are denied, the Court shall proceed to hear evidence on the petition. The Court, after hearing all of the evidence bearing on the allegation(s) of delinquency shall make and record its findings on whether or not the act(s) subscribed to the child were committed by the child. If the Court finds that the allegation(s) on the petition have not been established, it shall dismiss the petition with prejudice and order the child released from any detention. D. If the Court finds, on the basis of a valid admission(s) or on the basis of proof beyond a reasonable doubt that the child committed the act(s), the Court shall make a written record of its findings. E. Findings of a child in need of care and rehabilitation will be as follows:
§ 1314. Predisposition studies; reports and examination A. The Court shall order probation services to prepare a predisposition study including evaluations, assessments, and dispositional reports, which shall be submitted to all parties five (5) working days prior to the hearing. Such report shall include information of the child, his/her family, home environment and academic needs. A party failing to timely file such documents, in absence of just cause, may be sanctioned at the Court’s discretion.
B. Where there is an indication that the child may be mentally ill or
mentally disabled, the Court or any party may motion for an order that
the child be examined by a psychiatrist or psychologist prior to a
hearing as part of the predisposition study and report. D. In the dispositional hearing, the Court may consider all relevant and material evidence helpful in determining the questions presented, including oral and written reports, and may rely on such evidence to the extent of its probative value even though not otherwise competent. E. 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. § 1315. Disposition A. The Court may impose a fine and/or sentence not to exceed the fine and/or sentence which would be imposed if the child were an adult and may enter its judgment making any of the following dispositions for supervision, care and rehabilitation of the child:
B. A child shall not be committed or transferred to an adult detention facility. C. Whenever the Court vests custody in an agency, institution or department it shall transmit with the dispositional order copies of all clinical reports, predisposition studies and reports and other information in its possession pertinent to care and treatment of the child. D. The Court may exercise jurisdiction over a child until they reach twenty-one (21) years of age if the Court deems it is in the child’s best interest. § 1316. Damages to or destruction of property by child; parental liability; costs and attorney's fees; damages and restitution A. Any person may recover damages in a civil action, from the parent(s), guardian(s) or custodian(s) of a child upon proof by clear and convincing evidence that the child maliciously or willfully injured a person(s) or damaged or destroyed property, real or personal, belonging to the person bringing the action and that the parent(s), guardian(s) or custodian(s) failed to provide adequate supervision of the child. B. Recovery of damages under this Section is limited to actual damages proved in the action, taxable Court costs, and, in the discretion of the Court, reasonable attorney's fees to be fixed by the Court. C. Nothing contained in this Section limits the discretion of the Court to issue an order requiring damages or restitution to be paid by a child. § 1317. Motor Vehicle Code Violations A. The following Motor Vehicle Code violations are deemed a delinquent act:
B. All traffic violations including civil infractions involving children other than those listed in Subsection (A) shall be heard under this Chapter pursuant to the children in need of supervision Subchapter. C. Any Motor Vehicle Code violation by a child, including those specified in Subsection (A) shall be subject to the reporting requirements and the suspension and revocation provisions of the Motor Vehicle Code, and shall not be subject to confidentiality provisions of this Chapter. D. No court may incarcerate a child in an adult facility that has been found guilty of any of the above Motor Vehicle Code violations. § 1318. Probation Revocation; Disposition A. A child on probation who violates a term of the probation is subject to a probation revocation proceeding. B. Revocation of probation shall be an original proceeding styled as a "Petition to Revoke Probation" with reference to the initial proceeding. The petition shall be subject to the same procedures as petitions alleging delinquency. The petition shall state the terms of probation alleged to have been violated and the factual basis for these allegations. C. The standard of proof in these proceedings shall be evidence beyond a reasonable doubt. D. In all other respects, proceedings to revoke probation shall be governed by the procedures, rights and duties applicable to proceedings on a delinquency petition. E. If a finding of probation violation is made, the Court may extend the period of probation, not to exceed ninety (90) calendar days, or make any other judgment or disposition consistent with that of the original disposition of the case. § 1319. Limitations on dispositional judgments; modification, termination or extension of court orders A. No child shall be ordered for more than one (1) year to an institution for the housing of delinquent children without further order of the Court. A judgment transferring custody of a delinquent child to an agency responsible for the custody and rehabilitation of delinquent children is subject to monitoring by Probation and Parole Services independent of the Court supervision and:
B. A judgment of probation shall remain in force for a period not to exceed one (1) year from the date entered unless terminated or extended by order of the Court. C. A child shall be released by an agency, and probation or supervision shall be determined by probation services or the agency providing supervision when it appears to the probation officer that the purpose of the order has been achieved before the expiration of the one (1) year period. D. Prior to the expiration of a judgment of probation, the Court may extend the judgment for an additional period of one (1) year if it finds at a hearing beyond reasonable doubt that the extension is necessary to protect the community or to safeguard the welfare of the child. E. When a child reaches twenty-one (21) years of age all judgments affecting the child then in force automatically terminate. § 1320. Judgment; non-criminal nature; non-admissibility The Court shall enter a judgment setting forth the Court's findings and disposition in the proceeding. A judgment in proceedings on a petition under this Code shall not be deemed a conviction of a crime nor shall it impose any civil disabilities ordinarily resulting from conviction of a crime, nor shall it operate to disqualify the child from participating in any Navajo Nation program or obtaining Navajo Nation employment. The disposition of a child and any evidence given in a hearing in Court shall not be admissible as evidence against the child in any other case or proceeding before or after reaching the age of majority.
Termination of parental rights is not the custom or tradition of the Navajo people. At times it is necessary to sever that parent-child relationship when it is in the child’s and families’ best interest. Therefore, severance of the parent-child relationship can be sought as a last resort and after all other options, including customary adoptions, are considered by the party requesting the termination of the parent/child relationship. § 1402. Involuntary Termination A. Any person or agency that has a legitimate interest in the welfare of a child, including the Division may cause a petition to be filed for the termination of the parent-child relationship alleging one of the following grounds, that the parent:
B. When the Division recommends the filing of a termination of parental rights, the petition shall be filed by the Office of the Prosecutor. C. Evidence sufficient to justify the termination of the parent-child relationship shall be by clear and convincing proof. D. The Court shall appoint legal counsel for the parent(s) and if necessary, may appoint a guardian ad litem for the child. § 1403. Voluntary Relinquishment A. Any person or agency that has a legitimate interest in the welfare of a child, including, but not limited to a parent(s), a relative, foster parent, or a privately licensed child welfare agency, may cause a petition to be filed for the voluntary termination of the parent-child relationship alleging grounds that the parent(s) have voluntarily relinquished their rights to a child or have consented to adoption. B. When the Division recommends the filing of a termination of parental rights, the petition shall be filed by the Office of the Prosecutor Department of Justice. C. Any petition for termination of parental rights filed pursuant to this Section shall include documentation of the parent’s voluntary consent and/or consent to adoption, such consent shall be no less than ten (10) calendar days after the child’s birth. § 1404. Petition A. A petition for the termination of the parent-child relationship filed pursuant to this Subchapter shall include:
B. The Office of the Prosecutor will 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 the parental rights of a parent(s):
C. The Navajo Nation may elect not to file or join a petition to terminate the parental rights of a parent if:
D. When the Navajo Nation files or joins a petition to terminate parental rights, it concurrently begins to identify, recruit, process and approve a qualified adoptive family for the child. § 1405. Service; Notice; Waiver A. Service
B. Notice
C. Waiver
§ 1406. Investigative report prior to disposition; Contents A. An investigative report shall be completed by the Division, an agency or other person selected by the Court and submitted to the Court prior to a final hearing, unless it was previously submitted. B. This report shall include:
C. The Court may order any additional studies it deems necessary. D. The Court may waive the requirement of the investigative report when the Court finds that it is in the best interest of the child, and/or when a valid consent has been received from the parent(s). § 1407. Hearing A. All hearings shall be closed. Only persons found to have a direct interest in the case or in the work of the Court shall be admitted. The contents of the hearing shall not be disclosed. The Court may require the presence of any party and witness it deems necessary to the disposition of the petition, except for a parent(s) who has executed a valid waiver. B. Motion Hearing for Temporary Custody
C. Petition Hearing
§ 1408. Court Order; Form; Contents A. Temporary Custody Order
B. Termination of Parental Rights Decree
C. 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. § 1409. Effect of Court Order A. An order terminating the parent-child relationship shall divest the parent and the child of all legal rights, privileges, duties and obligations with respect to each other except the right of the child to inherit and receive support from the parent(s). This right of support shall be terminated by a final adoption decree. B. The parent-child relationship may be terminated with respect to one parent(s) without affecting the relationship of the other parent(s). C. The order shall not divest the clans of the biological parent(s) to the child.
TITLE 9. DOMESTIC RELATIONS § 1501. Application of the Indian Child Welfare Act in Family Court The Court may apply the policies of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., where they do not conflict with the provisions of this Subchapter. The procedures for state courts in the Indian Child Welfare Act shall not apply in the Courts of the Navajo Nation unless specifically provided for in this Subchapter. § 1502. Comity; Conflict of Laws A. State child custody orders involving Navajo children may be recognized by the Court only after a full independent review of such state Court proceeding has determined:
B. Tribal child custody orders involving Navajo children shall be recognized by the Court after the Court has determined:
C. Due to the vital interest of the Navajo Nation in its children and those children who may become members of the Navajo Nation, the statutes, regulations, public policies, customs and common law of the Navajo Nation shall control in any proceeding involving a Navajo child. § 1503. Voluntary Placement A. A voluntary placement or custody, temporary or permanent, of a Navajo child subject to a foreign jurisdiction may be judicially determined by the Navajo Courts where the parent consents to such placement. B. Parental consent to temporary placement, adoptive placement or relinquishment of parental rights shall be filed by the Navajo Department of Justice and approved by the Court. Such petitions shall conform to 9 N.N.C. § 1404. C. The Court may require that the priority preference placement provisions of the Indian Child Welfare Act, 25 U.S.C. § 1913, be followed where the child is to be placed outside of Navajo Indian Country, unless the best interests of the child require otherwise. § 1504. Court Wardship Any Navajo child who is domiciled or resides within Navajo Indian Country and is voluntarily placed outside of Navajo Indian Country shall be made a ward of the Navajo Court. A copy of any consent executed by the parents of such Navajo child and the location of the placement shall be filed; including an annual report on the location of the child. Wardship attaches to the child when he/she physically leaves Navajo Indian Country. Any placement of a Navajo child in violation of this Section may be invalidated upon petition to the Court and the Court shall make such orders at that time as will protect the Court's wardship over the child's best interests. |