Kickapoo Tribal Code - Child Welfare Code

The Indian Child Welfare Code can be found in Chapter 20 of the Kickapoo Traditional Tribe of Texas Tribal Codes. There are supporting codes listed in Chapters Seven through Ten.

The Kickapoo Traditional Tribe of Texas has Established the Indian Child Welfare Code with the purpose of protecting the best interests of Kickapoo children and of the Tribe and its customs and culture.

The Kickapoo Traditional Tribe of Texas carries the following policies as it relates to child welfare:

Checklist Steps

The caseworker is required to initiate all investigations of matters that arise under this Code, when an allegation of abuse, dependency, or neglect is made. The investigation shall cover the child’s:

  • Home environment;
  • History;
  • Associations;
  • Condition and the family’s condition; and
  • Recommendations as to the child’s future care.

The tribal representative shall take a minor into custody if:

  • There are reasonable grounds to believe that the minor is a youth-in-need-of-care and is in immediate danger from his or her surroundings, and that removal is necessary;
  • An emergency custody order has been issued by the Tribal Court; or
  • There is reasonable cause to believe that a youth subject to the Tribal Court’s jurisdiction is leaving the jurisdiction of the Court or being taken from this jurisdiction without permission.

A child in need of emergency placement may be placed, pending a court hearing, in one of the following placements:

  • With extended family members who will be able to protect the health and safety of the child;
  • A foster care facility in the service area licensed or approved by the Tribal Family Action Program (“TFAP”);
  • A private family home in the service area licensed or approved as a foster home by the TFAP;
  • A shelter care facility in the service area approved by the TFAP; or
  • A shelter care facility outside of the service area or an approved foster home outside of the service area approved by the TFAP. 

After a petition is filed for custody pursuant to this Code, the removal of a child must result from a judicial determination that continued custody would be contrary to the health and welfare of such child. Where more than one child is removed from a home, it shall be the Tribe’s policy to keep all the children so removed in one placement or shelter.

Before removal of a child, the caseworker must prepare a pre-dispositional report that outlines a specific plan for the care and assistance to the minor or their parents. The pre-dispositional report shall be made available to the minor, parents, guardian, custodian, or legal representative at least two (2) days before a dispositional hearing. Any party may submit a separate pre-dispositional report to the Court in this same time period.

Dispositional or adjudicatory placements must be reviewed every six (6) months. However, within 18 months of the original placement, the Court shall hold a permanency planning hearing to determine the long-term status of the child. The court may order, but is not limited to, any of the following dispositions:

  • Returning the child to the parent(s);
  • Ordering that a guardian be appointed and placing the child with the guardian;
  • Continuing the child in foster care for a specific period; and
  • Continuing the child in foster care on a permanent basis.

Disposition and placement of a child are covered in Sections 20.2 and 20.3 of the Child Welfare Code. Long-term placement provisions are covered in Section 20.5. 

Parental rights can be terminated both voluntarily and non-voluntarily. Child Welfare Code Section 20.4 is intended to ensure competent, stable, and ongoing care of the child by prompt and final adjudication.

Non-voluntary Termination of Parental Rights

Factors considered during a termination include, but are not limited to, any of the following:

  • Abandonment;
  • Illness or deficiency of the parent that would render the parent unable to care for the ongoing physical, mental, and emotional needs of the minor within one year from the date of determination of the illness;
  • Abuse or Neglect;
  • Excessive use of intoxicating liquor or illegal substances for over a period of one or more years;
  • Imprisonment for a period of one or more years;
  • A guilty plea that the parent, either intentionally or recklessly, willfully, or wantonly caused the death or injury of a minor’s sibling;
  • Failure to provide a home or reasonable substitute physical care and maintenance where custody is lodged with others;
  • Failure to maintain regular visitation or other contact with the child as designated in a plane to reunite the child with the parent;
  • Failure to maintain consistent contactor communication with the child over a period of one year; or
  • Unsuccessful rehabilitation of the parents.

Note: In any proceeding for non-voluntary termination of parental rights, the Court may appoint an advocate to represent the child as counsel or guardian ad litem if the Court determines that the interest of the child are not being represented by any of the parties in the proceeding, in the Court’s discretion.  The Court may also appoint a guardian ad litem in a voluntary termination proceeding.

A termination hearing shall be held within thirty (30) days after a petition is filed, except by the order of the Court.

A termination judgment should include the decision, reason for the decision, and order the disposition  of the minor as follows:

  • Place the minor with an extended family member; or
  • Place the minor in a foster care or shelter care facility which has been approved by the tribe; and in either case
  • Place the child in long-term placement, and proceed to the adoption section of this Code if appropriate. 

Voluntary Termination of Parental Rights

In a case of voluntary termination of parental rights, the Court shall require that:

  • No voluntary termination occurs before a child is ten (10) days old, except by order of the Tribal Court;
  • No voluntary termination shall occur until a written report is submitted to the Court by a recognized social services agency indicating that social services and counseling have been offered to the parent, the consequences of voluntary termination have been fully explained and understood, and such action is in the best interest of the child; or
  • A parent may waive in writing, the right to appear at a hearing, the right to notice of hearing, or both, and the Court shall assure that such waiver is knowing and voluntary. 

Where the Court has reasonable doubt as to the emotional state of the petitioner or petitioner’s ability to understand the consequences of his or her decision, the Court shall place the child with the Social Services Department for a period not to exceed thirty (30) days in order to allow the parent to consider the decision. 

Further, the Court shall order legal and psychological counseling for the parent in order to assure the parent’s understanding of the consequences of the decision and a report of the results of such counseling shall be made to the court. 

At the end of the thirty (30) day period, based upon the report received by the Court, the Court shall either:

  • Return custody to the parent;
  • Process the petition for voluntary termination of parental rights; or
  • Extend the period for no more than an additional thirty (30) days to allow additional counseling. 

Long term placement and adoption provisions are outlined in Sections 20.5 and 20.6 of the Child Welfare Code, respectively. 

Guardianship

It is the policy of the Tribe to prefer guardianship as a long-term placement option for tribal children over adoption or long-term foster care. 

Guardianship is covered in Section 20.5(a) of the Child Welfare Code. 

Where necessary or convenient, the Court may appoint guardians of the person and/or property of children under the court’s jurisdiction, as well as incapacitated adults who have no guardian legally appointed by will or deed. This appointment may be made on the petition of a relative or other person on behalf of the child or incapacitated adult, or on a petition of the child if the child is at least fourteen (14) years of age. Notice requirements for a Guardianship proceeding are outlined in Section 20.5(a)(1). 

When the child is under fourteen (14) years, the court may nominate or appoint his guardian. However, if he or she is fourteen (14) years or older, he or she may nominate their own guardian who, if approved by the court, must be appointed accordingly. If the guardian nominated by the child is not approved, or if the child resides outside of KTTT Indian Country or if the child neglects for ten (10) days to nominate a suitable person, the court may nominate and appoint the guardian in the same manner as if the child were under the age of fourteen (14) years. 

When a guardian is appointed to a child under the age of fourteen (14) years, the child, at any time after they attain the age of fourteen (14), may nominate their own guardian, subject to approval of the court. 

Adoption 

It is the policy of the Tribe that its children should be adopted only as a matter of last resort, and that alternative methods for long-term placement should first e considered. 

The following persons may file a petition to adopt:

  • Any adult, given that the petitioning adult shall be at least ten (10) years older than the minor;
  • In the case of married persons maintaining a home together, both spouses shall be petitioners, except where one of the spouses is the natural parent of the minor to be adopted. The natural parent shall not be a party to the petition in this situation;
  • A married person legally separated may adopt without the consent of his or her spouse.

The welfare of the child is the primary condition to consider during an adoption proceeding.

Preference in adoption shall be given in the following order:

  • Tribal member adoptive parents, at least one person of any adoptive couple must be a tribal member;
  • Families in which one person is a Tribal member or can prove decadence from a KTTT Tribal member;
  • Indian adoptive parents, which means that at least one person of any adoptive couple must be a member of a federally recognized tribe;
  • Non-Indian adoptive parents.

Petitions for adoption shall contain the following: 

  • The full name, residence, place of birth, date and sex of the child, with attached documentary proof of the date and place of birth of the child to be adopted;
  • Documentary poof of the child’s membership status in the Tribe, if such proof exists;
  • The full name, residence, date and place of birth, occupation of the adoptive parent(s), statement of relationship to the child, documentary proof of marital status (provided this not be interpreted to prohibit single parent adoptions) and tribal membership or Indian status;
  • Proof of parental consent to the adoption where the petitioners are relatives of the child by blood or marriage; except where the natural parents have abandoned the child and cannot be located or where there is proof of a court order terminating parental rights of the parents to said child. [See Section 20.5(b)(5) and (6) for full details on parental consent].
  • An agreement by the adopting parent of the desire that a relationship of parent and child be established between them and the child;
  • A full description and statement of value of all property owned, possessed, or held in trust by and for the child;
  • A citation to the specific section of this Code giving the Court jurisdiction of the proceedings; and
  • A brief and concise statement of the facts which may aid the Court in its determination. 

A Tribal Caseworker shall prepare and present to the Court a report within 60 days of the filing of a petition for adoption as to the suitability of the child for adoption, as well as to the financial, moral, physical fitness, general background of the adoptive home, and adoptive parent or parents. A home study shall be conducted as part of this procedure. Copies of this report shall be served on petitioner at the same time they are presented to the Court.

Written consent cannot be withdrawn after the entry of a final order of adoption but consent may be withdrawn prior to the final order of adoption. A withdrawing party must show by a preponderance of evidence that consent was obtained by fraud, duress or coercion, or the best interests of the child require the consent to adoption be voided.

Adoption Hearing

Adoption hearings shall be held within 90 days of receipt of an adoption petition. Adoptive parent or parents shall appear personally. At or before the hearing, any biological, adoptive or acknowledged parent consenting to the adoption must appear personally before the judge, in open court so the Court can determine the voluntaries and understanding with which consent was given, if the court determines the validity of the consent is an issue. 

The judge shall examine all persons appearing as to the suitability of the child for adoption, the validity of consent to adoption, the financial, moral, and physical fitness, responsibility of the adoptive parents, and whether the best interests of the child will be promoted by the adoption. The Court shall also hear natural extended family members to decide whether the child’s legal relationship to the extended family should be terminated.

Order of Adoption

Where the Court is satisfied that the petition for adoption is in the best interest of the child, the Court may enter a final decree of adoption as follows:

  • In the case of a child who has lived with the adoptive parent for more than one year before the adoption petition has filed, the final decree of adoption shall be entered immediately; and
  • In all other cases, the Court shall order the child be placed in the legal custody of the adoptive parent for at least one year; at that time, the court shall request a supplemental report and, if the Court determines that the best interest of the child are served, shall enter the final decree of adoption immediately.

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