Statutes | Cherokee Code Chapter 7B Article 3 ยง 7B-304 | 2019

(a)

Any physician or administrator of a hospital, clinic, or other medical or behavioral health facility to which a suspected maltreated child is brought for medical diagnosis or treatment shall have the right, when authorized by a judge to retain physical custody of the child in the facility when the physician who examines the child certifies in writing that the child who is suspected of being maltreated should remain for medical or behavioral health treatment or that, according to the childs medical evaluation, it is unsafe for the child to return to the childs parent, guardian, custodian, or caretaker.

(1)

This written certification must be signed by the certifying physician and must include the time and date that the judicial authority to retain custody is given. Copies of the written certification must be appended to the childs medical and judicial records and another copy must be given to the childs parent, guardian, custodian, or caretaker. The right to retain custody in the facility shall exist for up to 24 hours from the time and date contained in the written certification.

(b)

Immediately upon receipt of judicial authority to retain custody, the physician, the administrator, or that persons designee shall so notify the director of human services. The director shall treat this notification as a report of suspected maltreatment and shall immediately begin an investigative assessment of the case.

(1)

If the investigative assessment reveals that:

(A)

It is the opinion of the certifying physician that the child is in need of medical or behavioral health treatment to cure or alleviate physical or emotional distress or to prevent the child from suffering serious physical, mental or emotional injury and

(B)

It is the opinion of the physician that the child should for these reasons remain in the custody of the facility for 24 hours but

(C)

The childs parent, guardian, custodian, or caretaker cannot be reached or, upon request, will not consent to the treatment within the facility, the director shall within the initial 24-hour period file a petition alleging maltreatment and setting forth supporting allegations and shall seek a protective custody order. A petition filed and a protective custody order obtained in accordance with article 5 of this chapter shall come on for hearing under the regular provisions for such proceedings, unless the director and the certifying physician together voluntarily dismiss the petition.

(2)

In all cases except those described in subdivision (1) above, the director or ICWT shall conduct the investigative assessment and may initiate proceedings and take all other steps authorized by the regular provisions of this chapter. If the director decides not to file a petition, the physician, the administrator, or that persons designee may ask an attorney of the Tribe to review this decision according to the provisions of C.C. section 7B-301(h).

(c)

If, upon hearing, the Court determines that the childs legal residence is not on Tribal trust land, the child may, if not contrary to the childs best interest, be transferred, in accordance with applicable laws or agreements with other local agencies to the custody of the department of social services in the jurisdiction of residence.

(d)

If the Court, upon inquiry, determines that the medical or behavioral health treatment rendered was necessary and appropriate, the cost of that treatment may be charged to the parents, guardian, custodian, or caretaker, or, if the parents are unable to pay, to the Tribe shall assume the costs of such care.

(e)

Except as otherwise provided, a petition begun under this section shall proceed in like manner with petitions begun under C.C. section 7B-302.2.

(f)

The procedures in this section are in addition to, and not in derogation of, the maltreatment reporting provisions of chapter 7B, article 3 and the emergency custody provisions of C.C. chapter 7B, article 5. Nothing in this section shall preclude a physician or administrator and a director of human services from following the above mentioned procedures whenever these procedures are more appropriate to the childs circumstances.

(Ord. No. 524 , 7-17-2015)