Statutes | Cherokee Chapter 7B Article 1 ยง 7B-101 | 2019
(a)
As used in this subchapter, unless the context clearly requires otherwise, the following words have the listed meanings:
(1)
Abandoned child. A child with a complete lack of parental contact or marginal contact for more than three months, and with no parental provision of financial support for more than six months. Placement of the child with a relative of the parent shall not in and of itself constitute abandonment.
(2)
Abused child. Any child less than 18 years of age whose parent, guardian, custodian, caretaker or any other person, without regard to intent:
(A)
Inflicts or allows to be inflicted upon the child death or serious physical injury by other than accidental means
(B)
Creates or allows to be created a substantial risk of serious physical injury to the child by other than accidental means
(C)
Uses or allows to be used upon the child cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior
(D)
Commits, permits, encourages or allows to be inflicted upon the child any of the following acts which would constitute: aggravated sexual abuse sexual abuse of a minor or ward sexual abuse abusive sexual contact child abuse in the first degree child abuse in the second degree unlawful sale, surrender, or purchase of a minor disseminating and exhibiting harmful material or performances to minors crimes against nature incest preparation of obscene photographs, slides, or motion pictures of the child employing or permitting the child to assist in a violation of the obscenity laws first and second degree sexual exploitation of the child promoting the prostitution of the child and taking indecent liberties with the child.
(i)
For purposes of this chapter, any offense that is not defined and punishable by the Cherokee Code or Federal law in force within the exclusive jurisdiction of the United States shall be defined in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense, pursuant to 18 U.S.C.A. § 1153.
(E)
Creates or allows to be created serious mental or emotional damage to the child serious emotional damage means injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability of the child to function within the normal range of performance and behavior and may include but is not limited to anxiety, depression, withdraw, or aggressive behavior toward self or others
(F)
Encourages, directs, or approves of delinquent or undisciplined acts committed by the child or
(G)
Commits or allows to be committed any offense involving human trafficking, involuntary servitude or sexual servitude against the child.
(3)
Aggravated circumstances. Any incidents of maltreatment perpetrated upon a child which demonstrates such indifference to the health and wellbeing of the child and the communitys standards for the care of children that it increases the enormity or adds to the injurious consequences such that reunification efforts with the parent or caregiver are deemed not to be in the best interest of the child and termination of parental rights may be sought immediately. Aggravated circumstances include but are not limited to abandonment, torture, chronic abuse, sexual abuse, abuse resulting in permanent injury, maiming or death of any child, use of a weapon in an act of child abuse, birth/delivery of a child addicted to illegal substances.
(4)
Caretaker. Any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a child in a residential setting. A person responsible for a childs health and welfare means a stepparent, foster parent, an adult member of the childs household, an adult relative entrusted with the childs care, any person such as a house parent or cottage parent who has primary responsibility for supervising a childs health and welfare in a residential child care facility or residential educational facility, or any employee or volunteer of a division, institution, or school operated by the Eastern Band of Cherokee Indians. "Caretaker" also means any person who has the responsibility for the care of a child in a child care facility located on Tribal trust land and includes any person who has the approval of the care provider to assume responsibility for the children under the care of the care provider. Nothing in this subdivision shall be construed to impose a legal duty of financial or child support under Cherokee common law. The duty imposed upon a caretaker as defined in this subdivision shall be for the purpose of this chapter only.
(5)
Child. A person who has not reached the persons eighteenth birthday and is not married, emancipated, or a member of the Armed Forces of the United States.
(6)
Child care facility. Includes child care centers, family child care homes, and any other child care arrangement that provides child care, regardless of the time of day, wherever operated, and whether or not operated for profit.
(A)
A child care center is an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care.
(B)
A family child care home is a child care arrangement located in a residence where, at any one time, more than two children, but less than nine children, receive child care.
(7)
Child custody order. An order issued by a Court of competent jurisdiction that transfers the physical custody and/or legal custody over a child from the childs parents, guardian, custodian or caretaker to the department of human services or another person named in the Court order. A child custody order can include temporary emergency or protective orders.
(8)
Child maltreatment ("maltreatment"). Any act or omission which demonstrates one of the following:
(A)
An abused child as defined in 7B-101(a)(2)
(B)
A dependent child as defined in 7B-101(a)(16)
(C)
A drug endangered child as defined in 7B-101(a)(18)
(D)
A neglected child as defined in 7B-101(a)(23) or
(E)
Any form of mental injury including harm to the childs psychological capacity or emotional stability evidenced by an observable and substantial impairment of the childs functioning.
(9)
Clerk. Any clerk of Cherokee Court, acting clerk, or assistant or deputy clerk.
(10)
Comprehensive clinical assessment. An assessment specifically designed for child welfare cases that is conducted by a behavioral health professional and includes but is not limited to:
(A)
Identifying information
(B)
A description of presenting behavior and circumstances resulting in substantiation
(C)
The relevant social history
(D)
Results of standardized testing, medical evaluations and other assessments necessary in the case, including a protective factors assessment
(E)
Clinical interviews which include but are not limited to:
(i)
Documenting the parents and family/household members response to the CPS investigation
(ii)
Exploring and describing the parents and family/household members explanation of danger threats or impending danger threats
(iii)
Documenting the parents and family/household members recommendations for resolving difficulties
(iv)
Describing the parents and family/household members willingness to participate in change processes necessary to resolve situation.
(F)
A diagnosis
(G)
A summary of findings and
(H)
Recommendations
(11)
Court. The Cherokee Court.
(12)
Court of competent jurisdiction. A Court having the power and authority of law to act at the time of acting over the subject matter of the cause.
(13)
Criminal history. A Tribal, local, state, or federal criminal history of conviction or pending indictment of a crime, whether a misdemeanor or a felony, involving violence against a person.
(14)
Custodian. The person or agency that has been awarded legal custody of a child by a Court.
(15)
Department. The Tribes Department of Human Services.
(16)
Dependent child. A child in need of services or placement because (i) the child has no parent, guardian, or custodian responsible for the childs care or supervision or (ii) the childs parent, guardian, custodian or caretaker is unable or unwilling to provide for the childs care or supervision and lacks an appropriate alternative child care arrangement.
(17)
Director. The Director of the Tribes Department of Human Services or agents of the Department of Human Services authorized to carry out the duties established under this chapter.
(18)
Drug endangered child. A child who is at substantial risk of suffering harm as a result of his/her parent, guardian, custodian or caretakers drug misuse, abuse, possession, manufacturing, or distribution including but not limited to the risk created when the parent, guardian, custodian or caretakers drug use interferes with the caretakers ability to provide proper supervision or a safe and nurturing environment for the child. For the purposes of this chapter "drug" also includes alcohol.
(19)
Family care continuum ("FCC"). A continuum of services provided by the ICWT and the Department to families based on substantiated reports of child maltreatment through a service plan which is focused on family preservation or reunification by engaging and improving upon the protective capacities of the family and addressing immediate safety concerns and ongoing risks of child maltreatment.
(20)
Home study assessment. An assessment specifically designed for child welfare cases that is conducted by the ICWT who join with parents, guardians, custodians or caregivers and children to complete a comprehensive review of the home setting during an investigative assessment to identify any circumstances or concerns contributing to safety issues, including but not limited to:
(A)
Basic living requirements: Concerns with the home setting might include basic living requirements exampled by clean water, electricity, adequate heating, food, rent or mortgage payments, child care and other items considered to be a circumstance relating to safety issues and maltreatment.
(B)
At risk individuals: Additional factors considered in the assessment include identification of individuals, other than caregivers, who are involved with the household and present a safety concern as exampled by substance abuse, involvement in criminal behavior or other behaviors that create a safety risk.
(21)
Integrated child welfare team ("ICWT"). A collaborative group of professionals that coordinate and provide services available within the Departments family care continuum ("FCC"), including staff from essential stakeholder agencies such as behavioral health, child protective, foster care and juvenile justice.
(22)
Investigative assessment response. A multiple ICWT member response to reports of child maltreatment focusing on behaviors and environment using a formal information gathering process to determine whether a child is maltreated or in immediate danger.
(23)
Neglected child. A child who does not receive proper care, supervision, or discipline from the childs parent, guardian, custodian, or caretaker or who has been abandoned or who is not provided necessary medical care or who is not provided necessary remedial care or who lives in an environment injurious to the childs welfare or is a drug endangered child as defined in this chapter or has not been provided proper care pursuant to an intervention plan or other plan developed by the Department to which the parent, guardian, custodian or caretaker has not substantially complied or who has been placed for care or adoption in violation of law. In determining whether a child is a neglected child, it is relevant whether that child lives in a home where another child has died as a result of suspected abuse or neglect or lives in a home where another child has been subjected to abuse or neglect by an adult who regularly lives in the home.
(24)
Parent. The biological or adoptive adult legally responsible for the care and support of a child.
(25)
Petitioner. The individual or agency who initiates Court action, whether by the filing of a petition or of a motion for review alleging the matter for adjudication.
(26)
Protective capacity. The behavioral, cognitive and emotional characteristics that can specifically and directly be associated with a persons ability to care for a keep a child safe.
(27)
Protective factors. For purposes of this chapter protective factors shall include but are not limited to (1) resilience (2) social connections (3) concrete support in times of need (4) knowledge of parenting and child development and (5) social and emotional competence of children.
(28)
Reasonable efforts. The diligent and measurable use of preventive interventions or services targeted to preclude the need for a childs removal or accomplish the reunification of a child placed outside of the home unless a Court of competent jurisdiction determines that the child shall not to be returned home, then reasonable efforts means the diligent, measurable and timely use of permanency placement planning services by the Tribe.
(29)
Relative.
(i)
a person who has reached the age of 18 who is related by blood or marriage to a child, including but not limited to grandparent, aunt or uncle, brother or sister, in-laws, niece or nephew, first or second cousins or stepparents or
(ii)
A person who provides parenting to a child in the traditional Cherokee way or
(iii)
An individual with a substantial relationship to the child.
(30)
Reunification. Placement of the child in the home of either parent or placement of the child in the home of a guardian or custodian from whose home the child was removed by Court order.
(31)
Safe home. A home in which the child is not at substantial risk of maltreatment based on objective and observable indicators for safety and wellbeing.
(32)
Sibling. An adopted or biological sibling, half-sibling or step sibling.
(33)
Tribal member. An individual who is currently enrolled pursuant to C.C. chapter 49.
(34)
Tribe. The Eastern Band of Cherokee Indians ("EBCI") or any entity, division, program, agency or enterprise of the EBCI.
(35)
Tribes attorney. The attorney representing the Department.
(36)
Working day. Any day other than a Saturday, Sunday, or a legal holiday when the Courthouse is closed for transactions.
(b)
The singular includes the plural, the masculine singular includes the feminine singular and masculine and feminine plural unless otherwise specified.
(Ord. No. 524 , 7-17-2015)