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Oct. 6 is deadline for Children's Code revisions comments

By Maggie Plummer

PABLO -- The clock is ticking toward an October 6 deadline for those wishing to submit written comments about proposed changes to the Tribes' Children's Code, which addresses child abuse and neglect.

The main revisions being looked at are: limiting the jurisdiction of the Tribes to enrolled or enrollable children (currently the Tribes' jurisdiction is exercised over descendants as well); expanding the definition of a child to between "fetus viability" (the last trimester of a pregnancy) and age 18; and shortening the time frame when a child can be in foster care (as mandated by federal funding requirements).

"It is controversial," Tribal Attorney Rhonda Swaney said of the proposed revision project. "We want to know what people think and feel."

In an interview Monday morning, Swaney made a personal appeal for written comments: "Please get your comments to me. The Tribal Council is seeking public comment to gauge public opinion before they take action."

She noted that there has been low attendance at the public meetings held all over the reservation during September. Each meeting has seen between one and four people in attendance, she said.

Swaney is reminding everyone that these are only proposed changes.

Among the proposed revisions is a clear statement of the Tribes' policy when it comes to child abuse and neglect: that the Tribes prefer to keep Indian families intact and if out-of-home placements are necessary, guardianship, custodianship and traditional adoption within the child's extended family should be used to accomplish a permanent living arrangement for the child.

Legal adoption of children outside tribal communities and extended families would be the least preferred alternative, according to the proposal.

That policy has not been stated in the current Children's Code, Swaney said.

Another proposed change involves definitions: "The definitions of Indian Youth, Indian Child, and Tribal Child all eliminate descendants. For the court to exert jurisdiction a child must be an unmarried person who is a member of an Indian Tribe, or eligible for membership in an Indian Tribe and the biological child of a member of an Indian Tribe."

The proposed definition would also extend the jurisdiction of the court to a viable fetus, which means a fetus in the last trimester of pregnancy, through age 18.

The reasoning behind that expanded definition of a child is, according to Swaney, to comply with Roe v. Wade and to confront meth and alcohol abuse problems. The term "child" was not previously defined in specific ages, she said.

In a summary of the proposed revisions, Swaney wrote that the section of the Children's Code that addresses parental responsibilities is proposed to more clearly state those rights and responsibilities - namely, to include providing adequate food, clothing, shelter, medical attention, hygiene, school attendance, financial support when a child is placed outside the home, and assistance to the Court in implementing court orders.

The Tribal Council previously amended the Children's Code in December 2004 to allow for attorney or lay advocate representation of parents in child custody proceedings, at the parents' expense. In that amendment, the Council provided that the Court would consider appointing a tribal advocate at the Tribes' expense only in a proceeding for termination of parental rights, if the parents met the definition of indigence and requested a Tribal advocate.

That prior amendment carries forward in this Children's Code revision proposal, according to the proposal.

Regarding appeals, a section of the code is proposed to allow theTribal trial court to continue jurisdiction in a case until a decision on an appeal is made.

The Council has proposed an administrative appeal process whereby an administrative appeal of a determination of substantiation of child abuse or neglect can be made following the Tribal Administrative Procedures Ordinance (Ordinance 86B).

However, such decision would not be allowed to be appealed to the Tribal Council, nor discussed in a Tribal Council meeting, according to Swaney.

A section has been added to the code, she said, describing circumstances when reasonable efforts to reunite parents and children are unnecessary.

Those circumstances include: subjecting the child to aggravated circumstances such as sexual abuse or assault; committing or involvement in deliberate homicide of a child; neglecting a child where serious bodily injury or death resulted; or involuntary termination of parental rights of another child in the family and the circumstances of removal are still relevant.

The final category in Swaney's summary is permanency planning: concurrent with temporary protective care, Social Services would be required to conduct planning for a permanent living arrangement for the child.

Here is what is proposed: "Social Services must provide services to reunite parents and children as soon as possible. Children will be allowed to remain in foster care up to 12 months pending reunification. If the child has not been reunited with his or her parents within 12 months, the Tribal Court must hold a permanency hearing and determine a permanent living arrangement for the child.

"Permanent living arrangements include guardianships and adoptions. The Court may terminate a planned permanent living arrangement if it finds that the circumstances of the child or family have substantially changed and the best interests of the child are no longer served by the permanent living arrangement."

The idea of this proposed shortened time frame for foster care is to accelerate the delivery of social services to children in need. The proposed revision to the Code calls for much clearer time frames with which social services must comply, according to the attorney.

The overall idea of the proposed revisions, she pointed out, is to make the Children's Code consistent with the Tribes' Youth Code.

The aim is for healthier children in safe and loving homes, she said.

Again, Swaney is urging anyone concerned about these proposed Children's Code revisions to get their written comments to her by October 6.

Comments may be sent to Rhonda Swaney, Tribal Legal Department, P. O. Box 278, Pablo MT 59855.