[Amended 10-29-2020 by Ord. No. 20-29]
The purpose of this article is:
A.
To distinguish, in judicial and other processes affecting children
coming within the provisions of this chapter, between the child who
has committed a delinquent act and the child or juvenile in need of
protection and services, and to provide appropriate and distinct dispositional
options for these children and their families;
B.
To remove from children committing delinquent acts the adult legal
consequences of criminal behavior, and to substitute programs of supervision,
treatment, and rehabilitation which hold them accountable for their
actions, provide for the safety and protection of the community, and
promote the development of competencies which will enable them to
become responsible and productive members of the community;
C.
To set forth procedures through which the provisions of this article
are to be executed and enforced, while ensuring the rights of the
parties are recognized and protected; and
D.
To coordinate services for children and their families in a trauma-informed
and responsive manner, with an emphasis on prevention, early intervention,
diversion and community-based alternatives.
A.
DEPARTMENT
Definitions in this section apply only to this article.
The Menominee Tribal Youth Services Department (or its successor
Department). Menominee Tribal Youth Services Department may include
workers and utilize from the Department of Family Services (or its
successor Department) to fulfill the requirements of this article
through an Interdepartmental Agreement. Departments may work together
without an agreement for teamed cases and families.
A.
Specify the person or person(s) with the primary responsibility for
coordinating activities and responsibilities under this article.
B.
Develop an intake inquiry and assessment for delinquency referrals.
C.
Develop, maintain and apply for prevention services and diversionary
programs to address youth justice and delinquency referrals; help
build healthy families using a trauma-informed care and responsive
approach and holistic services to meet the self-identified needs of
children and family referred to their Department.
D.
Track participation and outcomes of delinquency referrals.
E.
Cooperate and collaborate with the Department of Family Services
for prevention services on referred or teamed delinquency referrals.
F.
Cooperate and collaborate with law enforcement and Family Services
when it is necessary to remove a child from the custody of his/her
parent(s), guardian(s), or caretaker(s) due to a delinquency act.
G.
Promulgate policies and procedures to carry out the objective and
provisions of this article.
H.
Cooperate and collaborate and refer eligible cases to Netaenawemakanak.
I.
Refer delinquency matters to the Prosecutor when voluntary services,
agreements, and/or diversionary programs fail or are not appropriate
and involuntary orders are necessary.
J.
Make reasonable and active efforts, to prevent the need for removal
of the child from the family and other culturally competent services
to the family of any child determined to be delinquent.
A.
In all proceedings alleging the delinquency of a child under this
article, the child has a right to be represented by legal counsel.
Pursuant to guidelines utilized by the Menominee Tribal Courts, the
Court shall appoint legal counsel for the child and those appointed
shall serve the child with compensation as authorized by the Court.
B.
The Court shall advise the child before the Court of his/her basic
legal rights under this chapter at each separate appearance and advise
the child of their continuing rights for the duration of the Court
proceedings.
C.
A child alleged to be a delinquent child shall, from the time of
being detained and/or taken into custody, be advised of his/her right
to remain silent. The child shall not be questioned except to determine
identity and to determine the name of the child's parent(s), guardian(s)
or caretaker(s). While the child is in a detention facility, he/she
shall not be questioned without the presence of a parent(s), guardian(s),
caretaker(s), and/or legal counsel.
D.
In a proceeding on a petition, a child is entitled to the opportunity
to introduce evidence and be heard, to confront and cross-examine
witness(es) testifying against him/her, and to admit or deny the allegations
in the petition.
E.
In a proceeding on a petition:
(1)
An out-of-Court statement that would be inadmissible in a criminal
matter shall not be admitted into evidence upon objection by the child.
(2)
Evidence seized or obtained illegally shall not be admitted
into evidence to prove the allegations against a child upon objection
by the child.
(3)
An admission or confession made by the child is insufficient
to support a finding that the child committed the act(s) alleged in
the petition unless it is corroborated by other evidence or stipulated
admission.
F.
A child shall not be fingerprinted, photographed, genetically tested
for criminal identification purposes except by order of the Court.
If ordered, the fingerprints or photographs, or genetic test shall
be used only as specified by the Court. Any person who willfully violates
the provisions of this section shall be subject to sanctions by the
Court, including fines not to exceed $500.
G.
In all proceedings on a petition alleging delinquency in those instances
specified under other provisions of this chapter, the Court shall
make a preliminary finding on the issue of whether the child's interests
are not adequately represented by the parties and shall appoint a
guardian ad litem to represent the interests of the child.
H.
The Court, at any state of a proceeding, shall appoint a guardian
ad litem for a child if the child has no parent(s), guardian(s) or
caretaker(s) appearing on behalf of the child or if his/her interests
conflicts with those of his/her parent(s), guardian(s) or caretaker(s).
A party to the proceedings, or an employee or representative of a
party, shall not be appointed as guardian ad litem.
I.
The Court shall appoint a temporary guardian for a child if the Court
determines that the child does not have a parent or a legally appointed
guardian in a position to exercise effective guardianship. No officer
or employee or an agency that is vested with legal custody of the
child shall be appointed guardian of the child except when parental
rights have been terminated and the agency is authorized to place
the child for adoption.
J.
Any offense similarly alleged in a petition for criminal proceedings
or other actions in the Adult Court are barred if the Court has initiated
separate proceedings. A civil proceeding may be subsequently initiated
to address restitution.
A.
Jurisdiction over children alleged to be delinquent exists one or
more of the following circumstances:
(1)
Has committed an act which would be designated as a crime subject
to fine and/or imprisonment under tribal law;
(2)
Has committed the following traffic offenses:
(a)
Driving while under the influence of intoxicating liquor or
drugs;
(b)
Driving while under the influence of intoxicating liquor or
drugs causing injury;
(c)
Failure to stop or leaving the scene of an accident causing
death or personal injuries;
(d)
Fleeing an officer through use of a motor vehicle;
(e)
Operating a vehicle without the consent of the owner;
(f)
Reckless driving;
(g)
Homicide by vehicle.
(3)
Alleged violations of civil laws or ordinances.
B.
If a child alleged to be delinquent is before the court and appears
to have a developmental disability or mental illness, the court may
refer the matter for mental health proceedings.
A.
Interrogation and custodial interrogation. For the purposes of this
article:
(1)
An interrogation occurs whenever a law enforcement officer or
other official asks a child a question, or subjects a child to any
words or actions, that the law enforcement officer or other official
knows or should know is reasonably likely to elicit an incriminating
response; and
(2)
A custodial interrogation is any interrogation during which
a reasonable person of the child's age and in the child's position
would consider himself or herself to be unable to terminate the encounter.
B.
Advisement of rights.
(1)
Prior to interrogating a child, the law enforcement officer
or other official shall advise the child, in language the child will
easily understand:
(2)
Prior to initiating or resuming the interrogation of any child,
the law enforcement officer or other official shall again advise the
child of his/her rights pursuant to this section:
(a)
If there has been any lapse in time since the prior advisement,
including but not limited to circumstances in which the interrogation
is resumed or reinitiated after ceasing or being interrupted for any
reason; or
(b)
If the law enforcement officer or other official is not the
person who most recently advised the child, and:
C.
Custodial interrogation — presence of parent or legal counsel.
D.
Inadmissible statements and derivative evidence.
(1)
An oral, written, or other statement of a child made as a result
of any interrogation shall be inadmissible as evidence against the
child in any delinquency or criminal proceedings, unless:
(2)
An oral, written, or other statement of a child made as a result
of a custodial interrogation shall be inadmissible as evidence against
the child in any delinquency or criminal proceedings, unless:
(a)
The statement is made after consultation with and in the presence
of legal counsel and the parent(s), guardian(s) or caretaker(s);
(b)
An electronic audio or audio-visual recording is made of the
custodial interrogation; and
(c)
The recording is accurate and not intentionally altered;
(d)
The law enforcement officer or agent of a law enforcement agency
conducting the interrogation in good faith failed to make an audio
or audio and visual recording of the interrogation because the recording
equipment did not function without the officer's agent or knowledge,
the equipment malfunctioned or stopped working;
(e)
Exigent public safety circumstances existed that prevented the
making of an audio or audio and visual records or rendered the making
of such a recording infeasible;
(f)
The statement was made in made in response to a question as
part of the routine processing after the child was taken into custody;
or
(g)
The statement was made spontaneously and not in response to
a question by law enforcement officer or agent of a law enforcement
agency;
(3)
An oral, written, or other statement of a child made as a result
of any interrogation prior to or during which the child was subjected
to threats or physical punishment shall be inadmissible as evidence
against the child in any delinquency or criminal proceedings.
(4)
If the Court finds that a statement is inadmissible, then any
statements or other evidence derived from the inadmissible statement,
including subsequent statements made by the child, shall be likewise
inadmissible as evidence against the child in any delinquency or criminal
proceedings.
E.
Other statements.
(1)
The provisions of inadmissible statements and derivative evidence
of this section, shall not preclude the admission of:
(2)
The Tribe shall bear the burden of proving by a preponderance
of the evidence that a statement falls within one of the exceptions
identified in this section.
F.
Factors relating to admissibility.
(1)
Before permitting any child's statement to be introduced as
evidence against the child, the Court must find that the statement
was voluntarily and knowingly made, taking into account these and
any other relevant factors:
(a)
Whether the child had the opportunity to consult with his or
her parent, guardian or caretaker, or legal counsel before making
the statement;
(b)
The child's age, maturity, and level of education;
(c)
The child's level of intelligence and mental development; as
well as the presence of any cognitive or mental disability or impairment;
(d)
The child's physical and mental condition at the time the statement
was made;
(e)
The length of time the child was detained prior to interrogation,
and the length of time the child was interrogated before making the
statement;
(f)
The environment in which the interrogation took place;
(g)
The number of law enforcement officers who conducted or were
present during the interrogation, as well as their physical characteristics
and demeanor;
(h)
Any use of deception by the law enforcement officer(s) conducting
the interrogation; and
(i)
Whether, either prior to or during the interrogation, the child
was held in isolation, deprived of food or sleep, or subjected to
other potentially coercive measures.
G.
Electronic recording — preservation and confidentiality.
(1)
Any electronic recording of any statement made by a child during
a custodial interrogation shall be preserved until:
(a)
The child's adjudication for any delinquent acts relating to
the statement is final, or the initiation of proceedings relating
to such delinquent acts is barred by law;
(b)
All direct appeals or actions on petitions for the writ of habeas
corpus have been exhausted, or the time limit for bringing such appeals
or petitions has expired;
(c)
The child has been released from any detention, restrictions
or other conditions or obligations imposed by the Court in connection
with any proceedings relating to the statement; and
(d)
A minimum of three years has passed since the original recording
was made.
(2)
Any electronic recording of any statement made by a child during
a custodial interrogation shall be subject to the provisions of this
section.
B.
Referrals by law enforcement.
(1)
Law enforcement officers taking a child into custody or temporary
custody pursuant to provisions of this article shall notify the Department
immediately.
(a)
If the child is not detained or is released after initial detainment,
the law enforcement officer shall notify the Department immediately.
(b)
Law enforcement shall also provide written notifications of:
[1]
The date, time, and circumstances of the law enforcement officer's
contact with the child;
[2]
The reason the child was taken into custody;
[3]
To whom the child was released, or where the child was placed;
and
[4]
Any services or resources to which the law enforcement officer
referred the child's parent, guardian, or caretaker.
(2)
Law enforcement officers investigating allegations a child has
committed a delinquent act shall refer all completed investigations
to Youth Services.
(a)
Youth Services may refer the investigating back for further
investigation but such investigation does not extend the forty-day
requirement to complete their preliminary assessment.
(b)
The Prosecutor may refer their delinquency referrals back to
law enforcement for further investigation. This referral should be
completed and returned within 14 days but shall not exceed 20 days.
C.
The Department shall make an intake inquiry into the incident, and
forward the intake report and preliminary assessment to the Prosecutor
that may cause a petition to be initiated by the Prosecutor.
(1)
If the child is in custody, a temporary physical custody request
form must be filed by law enforcement or the Department with the Prosecutor's
Office and the Courts, and a hearing scheduled within 24 hours excluding
Saturdays, Sundays and Court holidays of the child being taken into
custody for an alleged delinquent act.
(2)
If the child is not in custody, the Department must file the
intake report and preliminary assessment with the Prosecutor's Office
within 40 days of being referred allegations that a child has committed
a delinquent act.
(3)
Intake inquiry; generally.
(a)
Confirm the location of the child and if that the child has
been placed as specified in the custody request.
(c)
If custody order was issued, determine the continued need and
necessity for custody or detention and arrange for change in placement
if necessary.
(d)
Refer the child's parent, guardian, or caretaker to any social,
community, or tribal resources which may be appropriate for addressing
the needs of the child and the child's parent(s), guardian(s), or
caretaker(s) and the family.
(e)
Provide notice of rights and counsel.
(f)
Assign Departmental worker to complete a preliminary assessment.
(4)
Where the child was taken into custody and has not been released
without conditions, the Department shall conduct the preliminary assessment:
(5)
Where the child was not taken into custody, the Department shall
conduct a preliminary assessment within 40 days from the date of referral
allegations.
D.
The preliminary assessment shall minimally include:
(1)
Informal conference;
(2)
A determination of the nature, extent, and details of the alleged
delinquent act;
(3)
A determination on the appropriateness of voluntary or involuntary
actions for the delinquency referral; and
(4)
A determination of the nature, extent, and cause of any condition
which is contrary to the child's best interest.
E.
Informal conference.
(2)
Where counsel has not already been appointed or retained to
represent the child, the
(3)
The purpose of the informal conference shall be:
(a)
To assist the Department worker in making recommendations; and
(b)
Where alleged facts are sufficient to support the filing of
a delinquency petition, to identify and discuss services, interventions,
agreements or other alternatives which would render the filing of
a delinquency petition unnecessary.
(c)
Where alleged facts are insufficient to support the filing of
a delinquency petition, to identify and discuss Netaenawemakanak service
referrals.
(4)
To the extent possible, the informal conference shall be treated
as a non-adversarial effort to resolve the issues presented by the
child's alleged conduct, without the intervention of Court.
(5)
Section 278-166E(4) shall not be interpreted:
(a)
To require the waiver of any right or privilege by the child
or the child's parent, guardian, or caretaker, including but not limited
to the privilege against self-incrimination;
(b)
To require disclosure by counsel for the child of any matter
that would otherwise be confidential or protected from disclosure
by any applicable rule or law;
(c)
To relieve counsel for the child of any ethical or professional
obligations otherwise imposed by statute, rules of professional conduct
or similar court rules; or
(d)
To require counsel for the child to proceed in a manner that
is inconsistent with those obligations.
(6)
Prior to conducting the informal conference, the Department
worker shall inform the child and the child's parent, guardian, or
caretaker:
(7)
If the child declines to attend or participate in the informal
conference:
(8)
The Department worker shall conduct the informal conference
without the participation of the child's parent, guardian, or caretaker,
if the child's parent, guardian, or caretaker:
F.
Department recommendations. Upon concluding the preliminary assessment,
the Department worker shall make one of the following recommendations:
(1)
Recommend that no further action be taken in the matter if the
Department worker determines that:
(2)
Recommend that the child and the child's parent, guardian, or caretaker enter into a deferred prosecution or diversion agreement pursuant to § 278-176, if the Department worker determines that:
(3)
Recommend the initiation of Child In Need of Protection and
Services or Juvenile In Need of Protection and Services proceedings
if the Department worker determines that:
(4)
Recommend the initiation of a delinquency petition filed with
the Court if the Department worker determines that:
(a)
The alleged facts are sufficient to support the filing of a
delinquency petition;
(b)
The best interests of either the child or the community require
the intervention of the Court; and
(c)
The best interests of either the child or the community cannot
be adequately addressed through diversion agreements, Child In Need
of Protection and Services petitions or Juvenile In Need of Protection
and Services petitions.
G.
Department recommendations; factors to be considered. In determining
the Department recommendations, the Department workers shall at a
minimum consider the following factors:
(1)
The nature and seriousness of the alleged act;
(2)
The child's previous contacts with the police, the Department,
or the Court;
(3)
The age, maturity, and the individual circumstances of the child;
(4)
The willingness of the child to participate in a voluntary program;
(5)
The participation and input of the child's parent, guardian,
or caretaker;
(6)
The likelihood that services and resources to meet the child's
needs can be identified and secured without the intervention of the
Court; and
(7)
Any statement expressing support for diverting the matter or
addressing the matter informally and without the intervention of the
Court, made by:
(8)
Department referrals.
(a)
Allegations that a child has committed a delinquent action shall
be referred to the Prosecutor.
(b)
Within the timelines described in this section, the Department
shall provide their intake report, preliminary assessment, and recommendations
to the Prosecutor.
(c)
Child welfare referrals. If there is reason to believe that
a child who is the subject of any proceedings conducted pursuant to
the provisions of this title may be abused or neglected, the Department
worker shall refer the matter to the Department of Family Services
to review the underlying facts of the cases and conduct any further
investigation which may be required.
A.
A child may be taken into temporary custody by law enforcement or
the Department:
(1)
Pursuant to an order of the Court issued because a parent(s),
guardian(s) or caretaker(s) and/or child failed when requested to
come before the Court after having promised to do so at the time the
child was released from custody.
(2)
When there are reasonable grounds to believe that the child
has run away from his/her parent(s), guardian(s) or caretaker(s).
(3)
If reasonable grounds exist to believe that the child requires
immediate care or medical attention or has been abandoned or is in
immediate danger from his/herself or his/her surroundings and removal
is necessary.
(4)
When probable cause exists to believe the child has violation
conditions of release imposed by the Court;
(5)
When probable cause exists to believe that the child has committed
a delinquent act(s) or violated a disposition order entered by the
Court;
(6)
The child shall be immediately informed of his/her basic rights
pursuant to this chapter upon being taken into custody.
B.
In any of the situations above law enforcement or the Department
shall be required to take the child to be medically cleared before
incarcerating the child in a youth or child detention facility.
C.
The law enforcement officer or Department worker taking the child
into custody shall notify the parent(s), guardian(s) or caretaker(s)
as soon as possible but no later than 24 hours.
D.
The above grounds shall govern the decision to determine whether
or not further detainment is appropriate prior to Court intervention.
A.
A law enforcement officer taking a child into temporary custody shall,
with all reasonable speed:
(1)
Release the child to parent(s), guardian(s) or caretaker(s)
and issue verbal counsel or warning as may be appropriate; or
(2)
Release the child to the parent(s), guardian(s) or caretaker(s)
upon a written agreement to bring the child before the Court when
requested; or
(3)
Deliver the child to the Department or to a detention facility.
B.
If the child is believed to be suffering from a serious physical
or mental condition or illness which requires either prompt treatment
and/or diagnosis, the child shall be transported to a medical facility.
C.
If a child is taken into custody and is not released, written notice
shall be given to the parent(s), guardian(s) or caretaker(s) by delivering
notice to the child's normal place of residence, no later than 72
hours, and shall provide reason(s) for not releasing the child from
custody.
D.
An alleged delinquent child may be detained only in:
(1)
A licensed foster home or a home approved by the Department,
which may be a public or private home or the home of a noncustodial
parent, or a relative or like kin; or
(2)
A juvenile residential care facility; or
(3)
A secure juvenile detention facility designated by the Department
or the Court; or
(4)
A residential treatment facility, detoxification facility, or
halfway house, if there is evidence of recent or ongoing alcohol or
substance abuse by the child, and:
(a)
There is clear and convincing evidence that such place is necessary
to avert a substantial risk to the health or welfare of the child;
or
(b)
Detention is otherwise necessary and authorize under this article,
and the child requests or agrees to such placement in lieu of a more
restrictive placement.
(5)
Any suitable place designated by the Court that meets the definition
for detention facilities under this chapter.
(6)
Detention in a secure juvenile detention facility shall in all
cases be subject to the time limits set forth in the subsection below
listing the limitations of detention at disposition.
E.
Unless detention of the child has already been ordered by the Court,
the Department, prior to placing the child in detention, shall review
the need for detention and shall release the child from custody unless
detention is appropriate under the criteria established by this article.
If detention appears inappropriate, the Department shall request the
Court to review its decision.
F.
A child alleged to be delinquent shall not be detained in a jail
or other facility intended or used for the incarceration of adults.
G.
A child under the age of 10 years of age shall not be committed to
a detention facility but shall be delivered to the Department who
shall assess the child based on his/her observations for the following:
(1)
The child's home environment for the ability of a responsible
adult person.
(2)
The current emotional stability of the child.
(3)
The physical condition(s) of the child.
(4)
The nature of the allegation(s).
(5)
The suitable place to alleviate placement in a detention facility.
(6)
Determine whether or not dependency, CHIPS, or JIPS action is
appropriate.
(7)
Potential for violent behavior by the child.
A.
Before entering an order authorizing detention, the Court shall determine,
on a case-by-case basis:
B.
If the child can be returned to the custody of the child's parent,
guardian or caretaker through the provision of services to prevent
or eliminate the need for removal, the Court shall release the child
to his or her parent, guardian or caretaker, and order that those
services be provided.
C.
If the child cannot be returned to the custody of the child's parent,
guardian or caretaker, the Department shall, as soon as possible,
provide referrals for services to enable the child's parent, guardian,
or caretaker to obtain any assistance that may be needed to effectively
provide the care and control necessary for the child to return to
the home.
D.
Upon entering an order authorizing detention, and in no event later
than 60 days following the child's removal from the home of the child's
parent, guardian or caretaker, the Court shall determine whether reasonable
and active efforts have been made to safely return and maintain the
child in the home.
E.
Upon making the determinations required by this section, the Court
shall enter written findings of fact referencing any and all evidence
relied upon in reaching its decision.
A.
An order prohibiting or restricting contact between a child and a
member of the child's immediate or extended family shall be narrowly
tailored, and the scope and terms of such an order shall be appropriately
limited, to protect the safety of the child and the child's family.
B.
Before entering such an order, the Court shall carefully consider:
(1)
The nature of the relationship between the child and the family
member;
(2)
The expressed concerns and preferences of the family member;
(4)
The likelihood that the proposed order will place undue emotional
or practical burdens on the child or the child's family; and
(5)
The ability and willingness of the child's family to supervise
contact between the child and the family member, or otherwise address
the concerns to which the proposed order is directed, without the
formal intervention of the Court.
A.
Where a child who has been detained, and not released, a hearing
shall be held within 24 hours, excluding Saturdays, Sundays and Court
holidays, from the filing of a custody request to determine whether
continued detention is required.
(1)
If the detention hearing is not held within the time limit imposed
by this section, the child shall be immediately released to the child's
parent, guardian, or caretaker.
B.
Notice.
(1)
Written notice of the detention hearing shall:
(a)
Be served on the child, the child's parent, guardian or caretaker,
and counsel for the child as soon as time for the detention hearing
has been set;
(b)
Contain the time, place, nature, and purposes of the proceedings;
(c)
Advise the parties of their rights under the provisions of this
article; and
(d)
Specify the delinquent act the child is alleged to have committed.
C.
The purpose of the detention hearing is to determine:
(1)
Whether there is grounds to detain the child;
(2)
Whether the child can be released without conditions;
(3)
If the child cannot be released without conditions, what conditions
of release imposed would render detention unnecessary; and
(4)
If detention is necessary and authorized, where the child should
be detained pending the child's next appearance.
D.
At the commencement of the hearing, Court shall advise the child
of their basic legal rights pursuant to this chapter.
E.
At the hearing, all relevant and material evidence helpful in determining
the need for detention may be admitted by the Court even though it
would be otherwise inadmissible in a hearing on the petition.
F.
Grounds for detention. A child shall not be detained unless the Court
finds:
(1)
There is probable cause to believe the child has committed a
delinquent act;
(2)
No less restrictive alternatives will suffice; and
(3)
There is clear and convincing evidence that the child should
be detained because:
(a)
Such detention is necessary to avert a substantial risk to the
health, welfare, person or property of the child or others; or
(b)
Will commit injury to person or property of others, or cause
injury to himself/herself or be subject to injury by others; or
(c)
There is a substantial risk that the child may leave or be removed
from the jurisdiction of the Court;
(d)
The parent has relinquished custody of the child; or
(e)
Child has ran away or committed a delinquent act while in non-secure
custody and no other suitable alternative exists; or
(f)
A protective order has been issued and the child consents in
writing; or
(g)
Is alleged or adjudicated delinquent and is a runaway from another
jurisdiction and would run away from non-secure custody.
G.
If the Court finds the child's detention is appropriate the child
shall not be released and shall remain in detention. Law enforcement
or the detention officer shall immediately return the child to the
juvenile detention facility pursuant to the Court's detention and
transportation order.
H.
If the Court finds that detention of the child is not appropriate,
the Court shall order the immediate release of the child, but in so
doing, may order one or more of the following conditions:
(1)
The child shall be returned to the parent(s), guardian(s), caretaker(s)
or relative to supervise the child.
(2)
Place restrictions on the child's travel, or association with
other persons or place of residence during the time of release.
(3)
Impose any other conditions deemed reasonably necessary and
consistent with this chapter, including a condition requiring that
the child return to custody if required.
I.
A custody order issued in accordance with this section shall specify:
J.
Detention rehearing. Upon the filing of a motion for rehearing and
a declaration stating the relevant facts, the Court shall rehear the
detention matter without unnecessary delay if:
K.
Mandatory detentioin review hearings.
(1)
The Court shall conduct a detention review hearing before the
end of each seven-day period in which the child is detained is a secure
juvenile detention facility prior to adjudication.
(2)
The Court shall conduct a detention review hearing for the purposes
of determining:
(a)
Whether the circumstances of the child, the posture of either
party, the availability of less restrictive alternatives, or other
material facts have changed since the last hearing;
(b)
Whether detention remains necessary and authorized.
(c)
Whether the child should be released from secure detention in
favor of a less restrictive alternative.
(3)
At the conclusion of each detention review hearing conducted
pursuant to the provisions of this section, the Court shall enter
a written order revoking, modifying, or extending its prior detention
order.
(4)
If the child is to remain in a secure detention facility, the
written order shall specify the date and time of the next detention
review hearing to be held in accordance with the provisions of this
section.
(5)
No detention review hearing shall be continued to as to fall
outside the time limits imposed by this section unless the child consents
to the continuance.
L.
Amendment of order. An order releasing a child on any condition in
this section may at any time be amended by Court order to impose additional
or different condition(s) of release or to return the child to out
of home placement or a detention facility for failure to conform to
the conditions originally imposed. The release agreement to have the
child returned to the Court when requested shall be signed by the
child, parent, guardian or caretaker.
M.
Termination of order due to timelines. An order of the Court providing
for either detention or conditional or supervised release shall result
in the child to be immediately released from any detention, restrictions,
or other conditions or obligations imposed thereby, if a delinquency
petition is not filed with the timelines of this article or if the
petition has been dismissed.
A.
Proceedings under this article shall be initiated by the filing of
a petition signed by the Prosecutor.
B.
The Department who has knowledge of the facts alleged or is informed
of them and believes that they are true, or a law enforcement official
upon information and belief, may cause a petition to be initiated
by the Prosecutor.
A.
Where the child was taken into custody and has not been released
without conditions, the delinquency petition shall be filed:
B.
If a child is not detained or in custody, the Prosecutor shall file
a petition within 20 calendar days of receiving the referral from
the Department or refer back for further investigation to the Department
or law enforcement. The investigation referral may only occur once.
C.
If the Court determines a petition alleging delinquent act(s) was
filed beyond the timelines described in this section, the petition
shall be dismissed with prejudice unless upon a proper showing of
due diligence of timely filing by the Prosecutor, then the Court may
authorize the petition to be re-filed within 20 calendar days from
the date of dismissal.
A.
Form and content. A petition initiating any proceeding under this
article shall be captioned "Menominee Tribal Court" "Menominee Indian
Reservation" and entitled, "In the Interest of _____, DOB: _____"
and shall set forth with specificity:
(1)
The facts necessary to invoke the jurisdiction of the Court
under this article.
(2)
A statement that the child has engaged in a delinquent act(s)
and is in need of care or rehabilitation.
(3)
A citation to the specific criminal statute or other law or
ordinance which the child is alleged to have violated.
(4)
A plain and concise statement of facts upon which the allegations
are based, including the date, time and location at which the alleged
act(s) occurred.
(5)
The name, birth date, physical and mailing address of the child.
(6)
The names and physical and mailing addresses of parent(s), guardian(s),
caretaker(s) and spouse, if any, of the child; and if none of the
parent(s), guardian(s), caretaker(s) or spouse, if any, reside or
can be found within the Menominee Reservation, or if their physical
or mailing addresses are unknown, the name of any known adult relative
residing within the boundaries of the Menominee Reservation, or if
none, the known adult relative living nearest to the Court.
(7)
The name of the Prosecutor presenting the petition and the date
and time presented.
(8)
Whether the child is in custody, and if so, the place of detention
and the time the child was taken into custody.
(9)
Assertion that petition is filed within 20 calendar days of
preliminary inquiry or pursuant to timelines required if the child
is detained.
(10)
If any matters required to be set forth by this section are
not known, a statement that they are not known should be made.
C.
Notice shall be served via first-class and certified mail, return
receipt requested for any person that parties or the Court deem necessary
for proper adjudication.
D.
If any party who is required to be personally served is outside the
Tribe's service area, or a minimum of three attempts of personal service
have been made, service shall be by certified mail, return receipt
requested, or by any means reasonably designed to give notice.
E.
If any current party's address is unknown, the petition shall be
published in a regularly published newspaper of the last known area
the party resided in.
F.
Service shall be made by any person over the age of 18 who is not
a party to the proceedings.
G.
Amending petition.
(1)
The delinquency petition may be amended to cure defects of form
at any time.
(2)
(3)
The delinquency petition shall not be amended to allege additional
delinquent acts after jeopardy has attached.
(4)
Whenever the delinquency petition is amended, the amended petition
shall be served in accordance with the provisions of this article.
(5)
Whenever the delinquency petition is amended to allege additional
delinquent acts, the Court shall, upon a motion by the child, continue
the adjudication hearing for such a period as is required in the interests
of justice.
In lieu of filing a petition, the Prosecutor, the Department,
the child and the parent(s), guardian(s) or caretaker(s) may enter
into a deferred prosecution agreement and/or participate in a diversion
program; such program shall be monitored by the Department.
A.
The diversion agreement shall include the following:
(1)
The name, birth date, physical and mailing address of the child.
(2)
The name, physical and mailing addresses of parent(s), guardian(s),
caretaker(s) and/or spouse, if any, of the child.
(3)
The name of the alleged offense.
(4)
The basic rights of the minor child.
(5)
The role of the Department in monitoring the deferred prosecution
and/or diversion agreement.
(6)
Resources identified and sought for the child shall address
the underlying problem related to the alleged delinquent act(s). Such
resources may include but are not limited to:
(a)
Peacemaking and cultural resources;
(b)
Appropriate counseling and/or prevention programs;
(c)
Career exploration/intervention and mentorship programs;
(d)
Driver safety programs;
(e)
Licensed AODA or other counseling programs;
(f)
Youth leadership and development services;
(g)
First offender and teen court programs;
(h)
Rehabilitation and support programs;
(i)
Other diversionary or camp programs;
(j)
Community service activities;
(k)
Payment of restitution, if appropriate;
(l)
Maintain school attendance, participate in a GED program or
vocational education, including any other educational related services;
(m)
Referral to community based programs and services;
(n)
Trauma-informed care and adverse childhood experiences (ACEs)
assessments and responsive programing;
(7)
A provision for tolling the filing of the petition;
(8)
A provision for specified progress and review meetings with
the parties to the deferred prosecution and/or diversion agreement;
(9)
That entry is voluntary and that the child, parent(s), guardian(s),
or caretakers(s) may withdraw from the agreement at any time;
(10)
That withdrawal from the agreement may lead to the filing of
a delinquency petition; and
(11)
Particular conditions to be fulfilled by the child and the child's
parent, guardian, or caretaker over a period not to exceed six months.
B.
A child's participation in any deferred prosecution and/or diversion
agreement shall:
C.
Prohibitions. The conditions of the agreement shall not:
(1)
Include detention in a secure juvenile detention facility, nor
participation in alternative programs or services specifically intended
as alternatives to secure detention or otherwise directed solely at
meeting the needs of adjudicated youth;
(2)
Include a requirement that the child's parent, guardian, or
caretaker undergo medical, psychological, or psychiatric treatment,
unless such treatment is:
D.
Eligibility. A child deemed to have committed a violent or serious
act, or is a habitual offender, shall not be eligible for the deferred
prosecution and/or diversion program unless the Department recommends
participation following a complete review of the child's records
and past conduct with law enforcement, school behavioral records,
past status offenses or delinquencies, discussion with the victim
and victim's family if the victim is a child if they are willing,
and the completion of a juvenile risk assessment by the Department.
[Amended 12-21-2021 by Ord. No. 21-88]
E.
Withdrawal. In the event of withdrawal or any violation of the deferred
prosecution and/or diversion program, the Department shall refer the
matter to the Prosecutor and a petition may be filed with the Court.
F.
Modifications.
G.
Fulfillment of conditions.
(1)
If the conditions of the agreement are fulfilled no further
action shall be taken in the matter.
(3)
Upon a finding by a preponderance of the evidence that a child
have fulfilled the conditions of a deferred prosecution agreement
the Court shall dismiss with prejudice any subsequent delinquency
petition arising out of the alleged incident.
A.
A petition alleging that a child is an alleged offender shall be
dismissed with prejudice if an initial appearance/plea hearing is
not held within:
B.
The hearing may be continued upon motion by a party or upon the Court's
own motion for any of the following:
C.
A continuance shall not exceed 10 calendar days, if the child is
in custody, or 30 calendar days if the child is not in custody.
D.
At the conclusion of the initial appearance/plea hearing, the Court
shall set the matter for:
(1)
A fact-finding hearing if a denial is entered; or
(2)
A dispositional hearing if an admission or no contest plea is
entered. The Court may schedule a hearing to dispose of the case,
or proceed immediately to a dispositional hearing, pursuant to recommendations
from the dispositional court report.
A.
At any time after the filing of the delinquency petition, but prior
to a fact-finding hearing, the Tribe and the child may agree to move
the Court for a consent decree.
B.
The motion for consent decree shall propose particular conditions,
which may include any of the options specified in the Deferred Prosecution
and Diversion Programs Section of this article, to be fulfilled by
the child and the child's parent, guardian or caretaker over a period
specified in accordance with the provisions of this section.
C.
The motion for the consent decree shall include a statement by the
child that contains an acknowledgment of his or her rights under the
provisions of this article, and a waiver of the time limits for a
fact-finding hearing set forth in this article, and entering the consent
decree is contingent upon the child entering a plea of admission or
no contest.
D.
Order on motion for consent decree.
(1)
The Court shall grant the motion for a consent decree only upon
finding, after inquiring of both the child and legal counsel for the
child, that the child:
(a)
Fully understands his or her rights under the provisions of
this article;
(b)
Has voluntarily, intelligently, and knowingly has entered a
plea of admission or no contest and waived the time limits for a fact-finding
hearing and disposition set forth in this article; and
(c)
Fully understands the conditions to be imposed.
(2)
Subject to the provisions of Subsection D(1), the Court shall grant the motion for consent decree unless the Court finds that the proposed conditions are unreasonable, excessive or insufficient, considering:
(3)
Upon granting the motion for consent decree, the Court shall
enter a written order setting forth:
E.
Consent decree initial period. The initial period of a consent decree:
(1)
Shall be specified in both the motion and order for consent
decree;
(2)
Shall be limited to the period of time reasonably necessary
for the fulfillment of the conditions contained within the consent
decree;
(4)
May exceed six months, but shall not exceed one year, where
the order for consent decree includes specific findings by the Court
that:
F.
Consent decree - review hearings.
(1)
Upon entering an order for consent decree, the Court shall set
a review hearing to determine whether the child and the child's parent,
guardian or caretaker have fulfilled the conditions of the consent
decree.
(2)
Prior to the ending date of the consent decree, the Court may
set one or more interim review hearings to monitor compliance with
or fulfillment of the conditions contained within the consent decree.
(3)
At any review hearing conducted pursuant to the provisions of
this section:
(a)
The child shall bear the burden of showing, by a preponderance
of the evidence, compliance with any affirmative requirement set forth
in the consent decree; and
(b)
The Tribe shall bear the burden of showing, by a preponderance
of the evidence, that the child or the child's parent, guardian or
caretaker has engaged in any conduct prohibited by the consent decree
order.
G.
Consent decree - fulfillment of conditions.
(1)
If the child and the child's parent, guardian or caretaker fulfill
the conditions of the consent decree, the Court shall, no later than
the ending date of the consent decree, enter a written order:
(2)
If the child or the child's parent, guardian or caretaker does
not fulfill the conditions of the consent decree, the Court may enter
a written order:
(a)
Continuing the review hearing to allow additional time for the
child or the child's parent, guardian or caretaker to fulfill the
conditions;
(b)
Modifying the conditions of the consent decree;
(c)
Extending the consent decree for an additional period not to
exceed three months; or
(d)
Revoking the order for consent decree and setting the case for
disposition in accordance with the provisions of this article.
(3)
The Court shall not enter an order extending the consent decree
or modifying the conditions unless the child, after consulting with
and being advised by legal counsel, consents to the proposed extension
or modification.
A.
After a petition has been filed alleging a delinquent act, the Court
may, before a hearing on the merits, transfer the matter for Prosecution
to the Adult Court after a transfer hearing, if:
(1)
The Prosecutor files a motion to transfer to the Adult Court,
upon the filing of the motion the child shall immediately be appointed
legal counsel;
(2)
The child was 17 years of age or older at the time the conduct
alleged to be a delinquent act was committed and the alleged delinquent
act(s) would be a crime if committed by an adult and consider the
following:
(a)
Threats the child may pose to other children in a juvenile detention
facility;
(b)
Whether or not the child is a danger to the public;
(c)
The severity of the alleged delinquent act(s) and delinquent
history or past conduct of the child;
(d)
Compare the availability of treatment in the adult and juvenile
systems;
(e)
Whether the child is not amenable to treatment designed to serve
children.
(3)
Written notice of the time, place and purpose of the hearing
is given to the child, parent(s), guardian(s) or caretaker(s) at least
three business days before the hearing;
(4)
The Court at the hearing finds there are reasonable grounds
to believe that:
(a)
A delinquent act(s) has been committed and the child may have
committed the alleged delinquent act(s); and
(b)
The child is not amenable to treatment or rehabilitation as
a child through available resources; and
(c)
The child has a history of delinquent offenses or history or
probation violations or a record of felony offenses; and
(d)
The child is not committable to an institution for the mentally
disabled or mentally ill; and
(e)
The child is a danger to the public or him/herself and transfer
to the Adult Court would be in the child's best interest.
B.
A hearing on whether the transfer should be made is held in conformity
with the rules of evidence and the burden of proof is clear and convincing.
The hearing will be to the Court without a jury.
C.
A written transfer order containing specific findings and reasons
for the order terminates the proceedings under this article over the
child with respect to the delinquent act(s) alleged in the petition.
D.
Prior to the hearing, the Department shall prepare for the Court
and make available copies to the child, child's legal counsel or parent(s),
guardian(s) or caretaker(s), a pre-dispositional report relevant to
the issues the Court must find to transfer the child to Adult Court
under this section, and the Court shall hear evidence and make specific
findings in regards thereto. Gathering of such information for the
pre-dispositional report shall not include any interviews with the
child regarding the merits of the alleged offense.
E.
If transfer is ordered and continued detention is required pending
the proceedings in the Adult Court, the child shall be detained in
a juvenile facility.
A.
Hearing on petitions shall be conducted by the Court separate from
other proceedings without a jury. The proceedings shall be recorded.
B.
All hearings shall be closed to the general public except after a
finding of exceptional circumstances the Court in its discretion deems
it appropriate to conduct an open delinquency hearing.
(1)
Any person who intentionally or recklessly divulges information
obtained from a closed hearing may be subject to civil fine, not to
exceed $500.
C.
The Court shall determine if the allegation(s) of the petition are
admitted or denied.
(1)
If the allegation(s) are denied, the Court shall proceed to
hear evidence on the petition. The Court, after hearing all of the
evidence bearing on the allegation(s) of delinquency shall make and
record its findings on whether or not the act(s) subscribed to the
child were committed by the child.
(2)
If the Court finds that the allegation(s) on the petition have
not been established, it shall dismiss the petition with prejudice
and order the child released from any detention.
D.
If having accepted an admission by the child, or upon hearing all
evidence properly admitted at the fact-finding hearing, the Court
finds that the allegations of the delinquency petition have been proven
beyond a reasonable doubt, the Court shall:
E.
If the Court finds that the allegations of the delinquency petition
have not been proven beyond a reasonable doubt, it shall enter a written
order dismissing the petition and releasing the child from any detention,
restrictions or other conditions previously imposed in connection
with the delinquency proceedings.
A.
The Court shall order the Department to prepare a dispositional study
including evaluations, assessments, and dispositional reports, which
shall be submitted to all parties a minimum of five business days
prior to the hearing. Such report shall include information of the
child, his/her family, home environment, placement history, previous
delinquencies and academic needs. A party failing to timely file such
documents, in absence of just cause, may be sanctioned at the Court's
discretion.
B.
Where there is an indication that the child may be mentally ill or
mentally disabled, the Court or any party may motion for an order
that the child be examined by a psychiatrist or psychologist prior
to a hearing as part of the dispositional study and report. The Court
may order that an adjudicated delinquent child be transferred to an
appropriate facility for no more than 30 calendar days, unless a showing
of good cause is made to the Court, for purposes of diagnosis; and
such written report shall be filed with the Court with recommended
disposition.
C.
In the dispositional hearing, the Court may consider all relevant
and material evidence helpful in determining the questions presented,
including oral and written reports, and may rely on such evidence
to the extent of its probative value even though not otherwise competent.
D.
By motion of a party or the Court, the hearing may be continued for
a reasonable time to receive reports and other evidence bearing on
the need for care or rehabilitation or in connection with disposition.
The Court shall continue the hearing pending the receipt of the dispositional
study and report if that document has not been prepared and received.
During any continuance under this section, the Court shall make an
appropriate order for detention or legal custody.
C.
Conduct. At the disposition hearing, the Court:
(1)
Shall afford the parties the opportunity:
(a)
To present documentary or testimonial evidence concerning the
appropriate disposition of the matter; and
(b)
To refute, and to cross-examine the sources of, the contents
and conclusions of any reports, testimony, or other evidence to be
considered by the Court pursuant to the provisions of this article;
(2)
Shall consider the dispositional report and recommendations
prepared by the Department, as well as any alternative dispositional
report or recommendations prepared by the child or the child's parent,
guardian or caretaker; and
(3)
May consider any evidence, including hearsay, which it finds
to be relevant, reliable, and helpful in making the determinations
contained in the dispositional study and reports.
D.
Orders on disposition.
(1)
If the Court finds that the child is not in need of supervision,
services, treatment or rehabilitation, it shall dismiss the proceedings
and enter a written order releasing the child from any detention,
restrictions or other conditions previously imposed in connection
therewith.
(2)
If the Court finds that the child is in need of supervision,
services, treatment or rehabilitation, the Court shall enter a written
disposition order.
(3)
The Court shall in all cases enter the least restrictive orders
appropriate considering:
(4)
All dispositional orders entered by the Court shall be:
E.
Disposition options.
(1)
The Court may enter written orders including any of the following,
as best suited to the needs of the child and the safety of the community:
(a)
An order permitting the child to remain with his or her parent,
guardian or caretaker, subject to such conditions and limitations
as the Court may prescribe;
(b)
An order requiring the child or the child's parent, guardian
or caretaker to participate in an educational, counseling, cultural
or diversion programs, or other services, designed to deter delinquent
acts or other conduct or conditions presenting a threat to the welfare
of the child or the community;
(c)
An order requiring the child's parent, guardian or caretaker
to participate in an educational, counseling, cultural or diversion
programs, or other services, designed to contribute to their ability
to care for and supervise the child, including but not limited to
parenting classes;
(d)
An order requiring the child or the child's parent, guardian
or caretaker to undergo a medical, psychological, or psychiatric evaluation;
(e)
An order requiring the child or the child's parent, guardian
or caretaker to undergo medical, psychological, or psychiatric treatment,
where such treatment is:
(f)
An order requiring the child to pay restitution, which may include
a provision for conversion to civil restitution for any amounts that
are unpaid at the expiration of the dispositional order;
(g)
An order requiring the child to perform community service;
(h)
An order requiring the child to attend structured after-school,
evening, educational, vocational or other programs appropriate for
meeting the needs of the child and providing for the safety of the
community;
(i)
An order prohibiting the child from driving a motor vehicle
for a period not to exceed the date on which the child reaches 18
years of age;
(j)
An order placing the child in the temporary legal custody of
a relative or other responsible adult, subject to such conditions
and limitations as the Court may prescribe;
(k)
An order providing for supervised or conditional release; and
(l)
An order providing for the detention or other out-of-home placement
of the child.
(2)
If a child found by the Court to have committed a delinquent
act has not achieved a high school diploma or the equivalent, the
Court may enter a written order requiring that the child pursue a
course of study designed to lead to the achievement of a high school
diploma or the equivalent.
F.
Detention - limitations.
(1)
The Court shall not enter a disposition order providing for
the detention or other out-of-home placement of the child unless:
(a)
No less restrictive alternatives will suffice; and
(b)
There is clear and convincing evidence that the child should
be detained because:
(2)
The Court shall not enter a disposition order providing for
the detention or other out-of-home placement of the child at an adult
facility.
(3)
No child shall be ordered for more than one year to an institution
for the housing of delinquent children without further order of the
Court.
(4)
For the purposes of interpreting and applying Subsection F(3), the total period of secure detention:
(a)
Shall include any period during which the child was detained
in a secure juvenile detention facility prior to adjudication; and
(b)
Shall be limited, where the child is found to have committed
multiple delinquent acts in connection with a single incident, to
not more than one year in an institution for the housing of delinquent
children without further order of the Court.
G.
Disposition orders - review.
(1)
The Court shall conduct a hearing to review any disposition
orders:
(a)
At least once every three months, if the child is detained or
in an out-of-home placement;
(b)
At least once every 30 days, if the child is detained in a secure
juvenile detention facility; and
(c)
At least once every 45 days, if the child is in an out-of-home
placement other than detention in a secure juvenile detention facility.
(2)
(3)
Where the child is detained or in an out-of-home placement,
the Court shall consider:
(a)
Whether the circumstances of the child, the availability of
less restrictive alternatives, or other material facts have changed
since the last hearing;
(b)
Whether detention or other out-of-home placement remains necessary
and authorized;
(c)
Whether the child should be released from detention or other
out-of-home placement in favor of a less restrictive alternative;
and
(d)
Whether reasonable or on-going efforts have been made to fulfill
the terms of the dispositional order.
(4)
At any review hearing conducted pursuant to the provisions of
this section:
(a)
The child shall bear the burden of showing, by a preponderance
of the evidence, compliance with any affirmative requirement set forth
in the dispositional orders entered by the Court; and
(b)
The Tribe shall bear the burden of showing, by a preponderance
of the evidence, that the child or the child's parent, guardian or
caretaker has engaged in any conduct prohibited by the dispositional
orders entered by the Court.
H.
Dispositional orders - duration and termination.
(1)
Dispositional orders entered by the Court shall continue in
force for not more than one year, unless they are extended in accordance
with the provisions of this article.
(2)
The Court may terminate a dispositional order prior to its expiration
if it appears to the Court, following a hearing conducted upon its
own motion or the motion of any party, that the purposes of the dispositional
order have been accomplished.
(3)
With the exception of an order requiring the child to pay restitution,
all dispositional orders affecting the child shall automatically terminate,
and the child shall be discharged from any further obligations in
connection with the delinquency proceedings, when the child reaches
21 years of age.
I.
Disposition orders - modification or extension.
(1)
Following a modification hearing conducted upon its own motion
or the motion of any party, the Court may modify or extend its disposition
orders if the Court finds by clear and convincing evidence that such
modification or extension is necessary to accomplish the purposes
of the orders to be modified.
(2)
The modification hearing shall be held:
(a)
Within 10 days of the detention hearing, if the child was taken
into custody as the result of an alleged violation of a dispositional
order, and has not been released; or
(b)
Within 30 days of the filing of the motion for modification,
if the child was not taken into custody as the result of an alleged
violation of a dispositional order, or has been released.
(3)
Where the modification hearing is to be held upon the motion
of the Court, notice of the modification hearing shall be accompanied
by a statement of the specific facts upon which the motion for modification
is based.
(4)
In making the determination for modification, the Court may
consider:
(a)
The extent to which the child and the child's parent, guardian
or caretaker have complied with any disposition orders previously
entered by the Court;
(b)
Evidence that the child has committed a subsequent delinquent
act;
(c)
Changes in treatment or other recommendations relied upon by
the Court in entering the orders to be modified; and
(d)
Any other material changes in the circumstances of the child
or the child's family, parent, guardian or caretaker.
(5)
All modified dispositional orders shall be subject to the requirements
of this article for orders on disposition.
(6)
An extension ordered in accordance with the provisions of this
section shall not exceed six months from the expiration of the prior
order, and in no event shall the duration of a disposition order be
extended:
J.
Disposition orders; violations.
[Amended 12-21-2021 by Ord. No. 21-88]
(2)
A child detained as the result of an alleged violation of a
dispositional order shall immediately be released unless:
(a)
Taken into custody for violation of a disposition order and
is awaiting a detention hearing pursuant to timelines in the article;
or
(b)
A modification hearing is held within the time limits imposed
by this article and the Court enters modified dispositional orders
providing for continued detention; or
A.
Any person may recover damages in a civil action, from the parent(s),
guardian(s) or caretaker(s) of a child upon proof by clear and convincing
evidence that the child maliciously or willfully injured a person(s)
or damaged or destroyed property, real or personal, belonging to the
person bringing the action and that the parent(s), guardian(s) or
caretaker(s) failed to provide adequate supervision of the child.
B.
Recovery of damages under this section is limited to actual damages
proved in the action, Court costs, and, in the discretion of the Court,
reasonable attorney's fees to be fixed by the Court.
C.
Nothing contained in this section limits the discretion of the Court
to issue an order requiring damages or restitution to be paid by a
child.
Any motor vehicle violation by a child, including citations under Chapter 550, Vehicles and Traffic, shall be subject to applicable driver's license suspension and revocation provisions and restrictions.
A.
In any proceedings on a delinquency petition brought under the provisions
of this chapter:
(1)
No out-of-court statement which would be inadmissible in criminal
proceedings before the Court shall be admissible to establish the
allegations of the delinquency petition;
(2)
No evidence which would be inadmissible in criminal proceedings
before the Court because such evidence was illegally seized or obtained
shall be admissible to establish the allegations of the delinquency
petition;
(3)
No statement made by the child to the Department, nor any evidence
derived from such a statement, shall be admissible to establish the
allegations of the delinquency petition, unless the statement is made
after consultation with and in the presence of legal counsel;
(4)
An out-of-court statement by the child shall be insufficient
to support a finding that the child committed the acts alleged in
the delinquency petition, unless the statement is corroborated by
other evidence; and
(5)
The fact that a child has at any time been a party to child
in need of protection and services proceedings shall be inadmissible
to establish the allegations of the delinquency petition, and any
statement made by the child during such proceedings shall be treated
as a statement made in response to custodial interrogation and subject
to the provisions therein.
[Amended 12-21-2021 by Ord. No. 21-88]
A.
Failure to appear. In all delinquency proceedings conducted pursuant
to the provision of this article:
(1)
(2)
If a child under 16 years of age fails to appear before the
Court after being so ordered:
(a)
If the Court finds, based on the sworn testimony of the child's
parent, guardian or caretaker, that the child has willfully refused
to appear, the Court may proceed by:
(3)
If the child's parent, guardian or caretaker fails to appear
before the Court after being so ordered, or fails to bring the child
before the Court after being so ordered:
(b)
Upon a second or subsequent failure to appear, the Court may:
[1]
Issue a bench warrant directing that the child's parent,
guardian or caretaker be brought before the Court to show cause why
they should not be subject to sanctions; and
[2]
Absent a showing of good cause for the failure to appear, impose
upon the child's parent, guardian or caretaker a fine of up to
$100 and/or referral to additional services;
(c)
Upon a third or subsequent failure to appear, the Court may
initiate proceedings for contempt against the child's parent,
guardian or caretaker.
(4)
The Court shall consider the ability of the child's parent,
guardian or caretaker to pay any fine to be imposed, and shall not
impose a fine that would cause undue hardship for the child's
parent, guardian, caretaker or family.
(5)
Whenever it appears from a field affidavit or sworn testimony
before the Court that the child has failed to appear as the result
of circumstances posing a substantial risk to the health, welfare,
person or property of the child or others, the Court may:
(6)
No sanctions other than those authorized by this article shall
be sought or imposed for a failure to appear before the Court in any
proceedings.
B.
Violations of conditions.
(1)
If it appears by a preponderance of the evidence that the child
has violated conditions of release or disposition order imposed by
the Court, the Department may:
(a)
Take into custody pursuant to the article; and/or
(b)
Offer an informal alternative to taking the child into custody
through a condition violation agreement; or
(c)
Request a hearing and additional conditions of release.
(d)
The Department shall provide written notice to the Prosecutor
and the Court of any violations of conditions of release.
(e)
The Prosecutor has five business days to object to informal
alternatives and may file a motion for sanctions or request more formal
sanctions at the detention hearing. This timeline does not prohibit
the Prosecutor from filing a new delinquency petition if the violated
conditions of release is a new delinquent act.
(2)
If it appears from a filed affidavit or sworn testimony before
the Court that the child has violated conditions of release or disposition
order imposed by the Court, the Court may:
(a)
Issue a custody order;
(b)
Following a hearing on the matter, impose additional or modified
conditions of release; and
(c)
Conduct a hearing to review the need for detention and/or amendment
of previous orders.
(d)
Nothing in this subsection prohibits the Prosecutor from filing
a new delinquency petition if the violated conditions of release or
disposition order is a new delinquent act.
C.
Sanctions for violation of order.
(1)
Netaenawemakanak services. All actions shall follow the principles
of Netaenawemakanak by providing a comprehensive, strength-based youth
and family drive way of response when children and families are experiencing
challenges. One of the purposes of this section is to consider alternatives
for violations of orders other than purely punitive sanctions such
as fines and detention and to encourage, when appropriate, rehabilitative
and restorative measures. Work towards this effort should favor close
in time informal and community-based responses rather than formal
proceedings.
(2)
Derivative proceedings.
(a)
(b)
Where the violation consists of an alleged act which would constitute
a delinquent act in the absence of the order violated, the alleged
act may be the basis for a delinquency petition.
(c)
Where the child is alleged to have violated a no-contact or
protection order, and the violation of such order would constitute
a delinquent act, the alleged violation may be the basis for a delinquency
petition.
(3)
Sanctions permitted.
(a)
The Department, with agreement from the Prosecutor, may offer
the following alternatives to formal sanctions pursuant to a written,
informal agreement. The agreement may include, but is not limited
to, the following:
(b)
If the Court finds by a preponderance of the evidence that the
child has violated a condition of his or her dispositional order,
the Court may order the following sanctions as a consequence for any
incident in which the child has violated one or more conditions of
his or her dispositional order:
[1]
Rehabilitative, restorative, and/or community-based response
measures;
[2]
Electronic monitoring;
[3]
Detention in the child's home or current residence for
a period of not more than 30 days first violations and not more than
60 days for second or subsequent violations, for which the juvenile
may be monitored by an electronic monitoring system;
[4]
Suspension or limitation on the use of the child's driver's
license or operating privileges for cars, ATVs, UTVs, or snowmobiles;
[5]
Suspension or limitation on the hunting or fishing privileges
on the Menominee Reservation;
[6]
Not more than 30 hours of uncompensated participation in supervised
work programs or other community service work;
[7]
Participation after school, in the evening, on weekends, or
other non-school days, or at any other time the child is not under
immediate adult supervision, in the social, behavioral, academic,
community service, and other programming of a youth center or program;
[8]
Placement in a non-secure custody facility;
[9]
Placement in a treatment facility; and/or
[10]
Placement in a juvenile detention facility or
juvenile portion of a county jail.
[11]
The child shall be given credit against the detention
in non-secure custody or juvenile detention facility for all time
spent in custody in connection with the course of conduct for which
the custody was imposed.
(4)
Motion to impose sanction. A motion for imposition of formal
sanctions may be brought by the person or department primarily responsible
for the provision of dispositional services, the Prosecutor, or the
court that entered the dispositional order.
(a)
If the Court initiates the motion, that court is disqualified
from holding a hearing on the motion.
(b)
Notice of the motion shall be given to the child, guardian ad
litem, counsel, parent, guardian, legal custodian, and all parties
present at the original dispositional hearing.
(c)
The motion shall contain a statement of whether the child is
a non-Menominee Indian child.
(5)
Sanction hearing. Before imposing formal sanctions, the Court
shall hold a hearing, at which the child is entitled to be represented
by legal counsel and present evidence.
(6)
Contempt of court. This section does not preclude a contempt
of court finding.
D.
Short-term detention. If a child who has been adjudged delinquent
violates a condition of the dispositional order for which the child
is required to comply, the child's caseworker or any other person
who provides intake or dispositional services for child delinquencies
may, without a hearing, take the child into custody and place the
juvenile into juvenile detention facility for not more than 72 hours
while the alleged violation and the appropriateness of the sanction(s)
is or are being investigated. The person taking the child into custody
pursuant to this section shall:
(1)
Permit the child to make a written or oral statement concerning
the possible placement and the course of conduct for the which the
child was taken into custody;
(2)
Provide notice of this action to their supervisor, who shall
review the statement and either approve the placement, modify the
terms of the placement or order the juvenile released from custody.
(3)
General written policies shall be developed with the Court and
the Department relating to taking into custody and placement pursuant
to this subsection.
(4)
This short-term detention may be imposed only if at the dispositional
hearing the Court explained the conditions of short-term detention
and of such possible placement or if before such violation that child
has acknowledged in writing that he or she has read, or has had read
to him or her, those conditions and this possible placement and that
he or she understands those conditions and this possible placement.
E.
Reasonable and active efforts finding. The Court may not order the
sanction of placement in a place of non-secure or secure custody unless
the Court finds that the agency primarily responsible for providing
services has made reasonable and active efforts to prevent the removal
of the child from his or her home and that continued placement of
the child in his or her home is contrary to the welfare of the child.
(1)
The findings are not required if they were made in the dispositional
order under which the child is being sanctioned.
(2)
The Court shall make the findings on a case-by-case basis based
on the circumstances specific to the child and shall document or reference
the specific information on which that finding is based in the sanction
order.
(3)
A sanction that merely references this section without documenting
or referencing that specific information in the sanction order or
an amended sanction order that retroactively corrects an earlier sanction
order that does not comply with this subsection is not sufficient
to comply with this subsection.
A judgment in proceedings on a petition under this article shall
not be deemed a conviction of a crime nor shall it impose any civil
disabilities ordinarily resulting from conviction of a crime, nor
shall it operate to disqualify the child from participating in any
Menominee Tribe program or obtaining employment. The disposition of
a child and any evidence given in a hearing in Court shall not be
admissible as evidence against the child in any other case or proceeding
before or after reaching the age of majority.
All Departments, Agencies, Courts, Placement Facilities, and
Service and Referral Programs:
A.
Should receive training regarding the trauma-informed and trauma
response approach in proving services and interacting with children
and families and adverse childhood experiences (ACEs).
B.
Should presume that all children, families, and staff have been impacted
by trauma.
C.
Afford dignity and respect to all individuals coming before them.
D.
Strive to maintain calm, secure, and safe environment for children
and their families, witnesses, attorneys, advocates, and others working
under this article.
