a judicial decision for substantiation of fact. This is a judicial term describing the action that takes place in the courtroom when the evidence presented proves that there is sufficient cause to keep children out of the home of their original caretaker. Children can be removed from their original caretakers for a variety of reasons. The facts of the situation must be presented before a judge, either in tribal or state court, to determine if the evidence warrants continuing the children in the custody of the Department of Human Services or Indian Child Welfare. This hearing process is called an adjudication hearing. This hearing normally takes place between thirty and ninety days after the initial removal.
Beyond a Reasonable Doubt
a level of evidence finding that requires approximately 98% of the evidence to be in favor of the particular finding. This is the highest level of evidence finding offered by a court system. To terminate parental rights of an Indian child, this is the level of evidence required under both the federal and state Indian Child Welfare Acts. The majority of states use the "clear and convincing" evidence level for termination of parental rights. The legal order received from the state must have the terminology of "beyond a reasonable doubt" in the language of the signed termination order. If this language is not present, it must be assumed that the legal follows normal state requirements of clear and convincing. Clear and convincing is not acceptable and the termination can be appealed for an Indian child.
Clear and Convincing
a level of evidence finding that requires approximately 75% of the evidence to be in favor of the particular finding. This is the level of evidence required under both the federal and state Indian Child Welfare Acts in order to remove an Indian child from his home. The majority of states use the "preponderance of the evidence" level for removal of children. The legal order received from the state must have the terminology of "clear and convincing" in the language of the signed removal or adjudication order. If this language is not present, it must be assumed that the legal follows normal state requirements of preponderance of the evidence. Preponderance of the evidence is not acceptable and the removal can be appealed for an Indian child.
a child that is adjudicated by the court to be deprived of some fundamental need that would insure his well-being. A child who for any reason is destitute, homeless, abandoned or who does not have the proper parental care or guardianship. A child whose home is an unfit place for the child by reason of neglect, cruelty, or depravity on the part of his parents, legal guardian, or other person in whose care the child may be. A child who is in need of special care and treatment because of his physical or mental condition including a child born in a condition of dependence on a controlled dangerous substance. This child could be considered deprived if his parents, legal guardian or their custodian is unable or willfully fails to provide said special care and treatment. A handicapped child deprived of the nutrition necessary to sustain life or of the medical treatment necessary to remedy or relieve a life-threatening medical condition that is deemed necessary in the reasonable medical judgment of the attending physician. A child may be considered deprived who, due to improper parental care and guardianship, is absent from school for fifteen (15) or more days or parts of days within a semester. He may also be considered deprived if he is absent for four (4) or more days or parts of days within a four-week period without a valid excuse as defined by the local school boards. School attendance requirements are valid if said child is subject to compulsory school attendance.
a juvenile judicial hearing to determine the plan for children and families after the adjudication hearing has been held. Dispositional hearings are set to determine such things as to whether placement of the child in out-of-home care is necessary and what services the child and family will need to reduce the risk of maltreatment and to address the effects of maltreatment.
the use of every effort available in resolving an issue. Due diligence is doing the best that you can while doing all that you can. Efforts of due diligence are a part of every case file and the extent of those efforts are sometimes required by the judge in determining the outcome of a particular situation. Every child welfare worker is expected to exercise the use of due diligence in every aspect of case management. Examples of areas where due diligence is applied include: search for relative placement resources, investigative responsibilities, home study processes for foster care and adoption, visitation and care requirements with the children for which agencies have legal care, custody and control.
the concept of a home that primarily wants to adopt but is willing to provide foster care to a child who is not currently legally free for adoption. This is the home that will be utilized as a permanent adoptive placement when and if the legal barriers are resolved. Cherokee Nation begins permanency planning for a child from the moment a child comes into the judicial system. A part of the permanency plan or concurrent planning process may include a fost-adopt placement. A fost-adopt placement is willing to carry out the role of foster parents and work toward reunification knowing that they will be the permanent adoption placement if and when termination of parental rights occurs. Relatives are the first consideration for fost-adopt placement. It is solely the decision of the potential fost-adopt family as to whether or not they are able to handle the repercussions of a particular placement. The benefits for the child are enormous. First, children have fewer placements while in care and find a stable home more quickly. Second, fost-adopt homes provide a stronger emotional base for the child as they include the child as a more "real" member of the family and give the child a better sense of belonging.
There are also benefits for the "fost-adopt" parent. First, children placed in their home have not been exposed to the uncertainty of multiple placements and all the behavioral problems this practice entails. Second, children come to their home at a much earlier age than normally expected through current practice. However, there is a major emotional drawback that some adoptive couples are not willing to consider. "At risk" placements always carry some degree of uncertainty and the possibility exists that a child may, under certain circumstances, return to the home of their original caretaker. Adoptive couples are always given all the information available to the social worker and court system about a particular child. "Fost-adopt" is not for everyone. It is always the choice of the potential adoptive parent as to what plan will work for their family.
the act of allowing a party to intervene in a court matter. The Federal Indian Child Welfare Act allows tribes to intervene in certain state court juvenile matters that concern their own tribal children. Cherokee Nation may choose to intervene in a state court matter involving a Cherokee child. This intervention gives the state court official notice that the tribe is involved with this child and that the tribe reserves its rights under the applicable Indian Child Welfare Acts.
the power, right and authority of a sovereign power to legislate, interpret and apply the law. Jurisdiction is the term that is applied to the court, whether state or tribal, who has assumed the care, custody and control of the child in question. Children in tribal court are in the exclusive jurisdiction of the tribe. For children in the state court system where the tribe has intervened both courts are considered to have conjoint jurisdiction. Tribal courts also have the option of requesting that jurisdiction in a state court matter be transferred exclusively to the tribal court.
providing a child with a safe and stable place where they can thrive while growing to adulthood. Permanency means providing a home for a child where they can stay without fear and uncertainty. Permanency is the feeling that the Cherokee Nation wants for every child. This sense of permanency becomes a part of the child when fear and uncertainty are removed. Permanency is best provided in the home of the natural parents if that home can be made safe and stable in a reasonable period of time. If the natural parents are not an alternative then child welfare workers must work diligently to build that sense of belonging with whatever placement plan can be provided.
Relinquishment or Voluntary Consent
when the termination of parental rights is taken by the court under the agreed upon consent of the biological parents. Voluntary relinquishments cannot be given until the child is at least ten days old. Any relinquishment taken on an Indian child prior to the ten days will be invalid and can be overturned on appeal.
Remedial Efforts or Active Efforts
a hands-on approach to service provision. Efforts to prevent the removal of Indian children from their families must be remedial in its approach according to the Federal Indian Child Welfare Act. It may be the difference in showing a family what needs to be done instead of telling them. It may be the difference in making the appointments and taking the family to the service providers instead of telling them what services they need.
Show Cause Hearing
a hearing held within forty-eight judicial work hours after a child has been removed from his home. A show cause hearing is held to determine whether or not there is sufficient evidence for the child to remain in the custody of the court past the first forty-eight hours. If so an adjudication petition must be filed within five working days in order to maintain court custody of that child until an adjudication hearing can be held.
Termination of Parental Rights
the legal severance of the parental right of the biological parents that leaves the child free to be legally adopted by someone else. Termination of parental rights must be completed on both biological parents before the adoption process can begin. This includes whatever time frames are allowed for the appeal process.