Tribe: Menominee Indian Tribe of Wisconsin
§ 278-30 Informal disposition.
A.
The Department may enter into an informal disposition under this article, when it promotes the best interests of the child and protects the child’s health and safety, if all of the following exist:
(1)
There is a written agreement with all parties describing the conditions and obligations that must be met to ensure the child is protected and to alleviate the condition that led to the referral.
(2)
The Department has determined that the interest of the child does not require a formal Court intervention to provide protection and services to the child and there is jurisdiction over the child and family.
(3)
There is consent by the child’s parent(s), guardian(s) or caretaker and the child, if the child is 12 years of age or older.
(4)
Prosecutor shall receive notice of all informal dispositions.
B.
The informal disposition may not include any form of out-of-home placement and may not exceed six months, unless an extension is agreed to by all parties. At no time shall an informal disposition exceed 12 months. If an extension is objected to, the Department may request the Prosecutor file a petition.
C.
If the informal disposition requires a person to obtain an alcohol or drug abuse assessment, they shall execute an informed consent form that they are voluntarily and knowingly entering into an informal disposition agreement with a provision for alcohol and drug abuse treatment.
D.
Informal disposition shall be terminated:
(1)
When the conditions and obligations imposed are not being met and shall be referred to the Prosecutor for filing a petition. The Prosecutor shall have 20 days after the termination referral to file the petition; or
(2)
At the request of a child 12 years or over, parent(s), guardian(s) or caretaker(s) and shall be referred to the Prosecutor for filing a petition; or
(3)
When the Prosecutor files a petition within 20 days after receipt of notice of the informal disposition.
E.
If all the conditions and obligations of the informal disposition are met, no petition may be filed on the referral allegations or information that brought about the informal disposition. […] § 278-44 Expectant mother/unborn child.
A.
Presumption of substantial risk to the child. There shall be an automatic presumption that use of alcohol beverages, controlled substances or controlled substance analogs, without a prescription will create a substantial risk to the physical health of the unborn child, and that the child when born will be seriously affected or endangered due to the expectant mother’s lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs. The same automatic presumption of substantial risk to a child shall also apply to situations where there is a strong likelihood that the child, when born, will be drug addicted due to the expectant mother’s use of controlled substances, or controlled substance analogs, prescribed or otherwise.
B.
Preliminary assessment for expectant mother and unborn child.
(1)
Information or allegations that there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the expectant mother’s lack of self-control in the use of alcohol beverages, controlled substance or controlled substance analogs, unless the expectant mother is taken into custody shall be referred to the Department.
(2)
The Department shall promptly initiate screening decisions for all allegations that there is a substantial risk that the physical health of the unborn child, and the of the child when born, will be seriously affected or endangered due to an expectant mother’s lack of self-control in the use of alcohol beverages, controlled substance or controlled substance analogs, unless the expectant mother is taken into custody.
(3)
The Department shall conduct a preliminary assessment within 60 days from the date of allegation.
(4)
The Department shall prepare a written report substantiating or unsubstantiating the allegations.
(5)
The written report shall contain:
(a)
The name of expectant mother.
(b)
The nature and extent of the allegations.
(c)
A substantiation determination.
(6)
If the allegation is unsubstantiated, the Department shall:
(a)
Close the assessment; or
(b)
Refer to Netāēnawemākanak services or other appropriate agencies.
(7)
If the allegation is substantiated, the Department shall:
(a)
Refer to Netāēnawemākanak services or other appropriate agencies; or
(b)
Enter into an informal disposition and notify the Prosecutor within 10 days of entering the informal disposition; or
(c)
Refer the matter to the Prosecutor for the filing of a child in need of protection and services petition for Court intervention.
C.
Informal disposition.
(1)
The Department may enter into an informal disposition under this subsection, when it promotes the best interests of the unborn child and the mothers health and safety, if all of the following exist:
(a)
There is a written agreement with all parties describing the conditions and obligations that must be met to alleviate the condition that led to the referral.
(b)
The Department has determined that the interest of the unborn child and mother’s health and safety does not require a formal Court intervention to provide protection and services and there is jurisdiction over the mother.
(c)
Prosecutor shall receive notice of all informal dispositions.
(d)
If the informal disposition requires a person to obtain an alcohol or drug abuse assessment, they shall execute an informed consent form that they are voluntarily and knowingly entering into an informal disposition agreement with a provision for alcohol and drug abuse treatment.
(e)
Informal disposition shall be terminated:
[1]
When the conditions and obligations imposed are not being met and shall be referred to the Prosecutor for filing a petition. The Prosecutor shall have 20 days after the termination referral to file the petition; or
[2]
When the Prosecutor files a petition within 20 days after receipt of notice of the informal disposition.
(f)
If all the conditions and obligations of the informal disposition are met, no petition may be filed on the referral charges that brought about the informal disposition
D.
Taking an expectant mother into custody.
(1)
An expectant mother of an unborn child may be taken into physical or nonsecure custody by the Department or Law Enforcement officer if they reasonably believe one or more of the following circumstances exist:
(a)
A warrant.
(b)
A capias issued by a judge.
(c)
An order of the judge if made upon a showing satisfactory to the judge that, due to the expectant mother’s lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be affected or endangered unless the expectant mother is taken into custody and that the expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good-faith effort to participate in any alcohol or other drug abuse services offered to her. The order shall specify that the expectant mother be placed in custody.
(d)
A capias or warrant for the apprehension of the expectant mother has been issued in this jurisdiction or in another jurisdiction.
(e)
There is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered due to the expectant mother’s lack of self-control in the use of alcohol beverages, controlled substance or controlled substance analogs, unless the expectant mother is taken into custody.
(f)
The expectant mother has violated the conditions of an order or the conditions of an order for temporary physical custody by a Department worker.
(2)
When an expectant mother of an unborn child is taken into physical custody as provided in this section, the person taking the expectant mother into custody shall immediately take the expectant mother for a medical check if concern for the safety of the mother and/or unborn child exists and then immediately following clearance, attempt to notify an adult relative or friend of the expectant mother by the most practical means.
(a)
The person taking the expectant mother into custody shall continue such attempt until an adult relative or friend is notified, or the expectant mother is delivered to a Department worker, whichever occurs first.
(b)
If the expectant mother is delivered to the Department worker before an adult relative or friend is notified, the Department worker, or another person at his or her direction, shall continue the attempt to notify until an adult relative or friend of the expectant mother is notified.
(3)
Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.
E.
Release or delivery of an expectant mother from custody.
(1)
The Department worker shall review the need to hold the expectant mother in custody and shall make every effort to release the expectant mother from custody. The Department worker shall base his or her decision as to whether there is probable cause to:
(a)
Believe that the expectant mother is within the jurisdiction of the Court;
(b)
Believe that if the expectant mother is not held, there is a substantial risk that the physical health of the unborn child, and of the child when born, will be affected or endangered by the expectant mother’s lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs; and
(c)
Believe that the expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good-faith effort to participate in any alcohol or other drug abuse services offered to her.
(d)
A person taking an expectant mother of an unborn child into custody shall make every effort to release the expectant mother to an adult relative or friend of the expectant mother after counseling or warning the expectant mother as may be appropriate or, if an adult relative or friend is unavailable, unwilling or unable to accept the release of the expectant mother, the person taking the expectant mother into custody may release the expectant mother under the expectant mother’s own supervision after counseling or warning the expectant mother as may be appropriate.
(2)
If the expectant mother is not released under Subsection E(1)(d), the person who took the expectant mother into custody shall arrange in a manner determined by the Department and law enforcement agencies for the expectant mother to be interviewed, and shall make a statement, in writing, with supporting facts of the reasons why the expectant mother was taken into physical custody and shall give the expectant mother a copy of the statement in addition to giving a copy to the Department worker. When an expectant mother is interviewed by a Department worker, the worker shall inform the expectant mother of her right to counsel.
(3)
If the unborn child or expectant mother is believed to be suffering from a physical condition which requires either prompt diagnosis or prompt treatment, the person taking the expectant mother into physical custody, the Department worker or other appropriate person shall deliver the expectant mother to a hospital or appropriate medical facility.
(4)
If the expectant mother is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to herself or others, or a substantial probability of physical impairment or injury to the expectant mother exists due to the impaired judgment of the expectant mother, the person taking the expectant mother into physical custody, the Department worker or other appropriate person shall proceed with the procedures for an emergency detention of the expectant mother.
(5)
If the expectant mother is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on herself or on another and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol and/or drugs, the person taking the expectant mother into physical custody, the Department worker or other appropriate person shall proceed with procedures to prevent and control alcoholism, addiction, or dangerous alcohol and/or drug use.
(6)
If an expectant mother is held in custody, the Department worker shall notify the expectant mother and the unborn child’s guardian ad litem of the reasons for holding the expectant mother in custody, the time and place of the temporary physical custody hearing, the nature and possible consequences of that hearing, and the right to present and cross-examine witnesses at the hearing.
(7)
The criteria for holding the expectant mother of an unborn child in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.
F.
Places where an expectant mother may be held in nonsecure custody.
(1)
An adult expectant mother of an unborn child held in physical custody may be held in any of the following places:
(a)
The home of an adult relative or friend of the adult expectant mother.
(b)
A licensed community-based residential facility, if the placement does not violate the conditions of the license.
(c)
A medical clinic, hospital or appropriate medical facility.
G.
Temporary custody hearing for an expectant mother in custody.
(1)
If an expectant mother of an unborn child who has been taken into custody is not released, a hearing to determine whether the expectant mother shall continue to be held in custody shall be conducted by the judge within 48 hours of the expectant mother being taken into custody, excluding Saturdays, Sundays and legal holidays.
(2)
By the time of the hearing, a petition shall be filed. Upon filing of the petition, the Court shall appoint counsel to the expectant mother.
(3)
If no hearing has been held within those 48 hours, excluding Saturdays, Sundays and legal holidays, or if no petition or statement has been filed at the time of the hearing, the expectant mother shall be released.
(4)
If no petition has been filed by the time of the hearing, an expectant mother of an unborn child may be held in custody with the approval of the judge for an additional 72 hours after the time of the hearing, excluding Saturdays, Sundays and legal holidays, only if, as a result of the facts brought forth at the hearing, the judge determines that probable cause exists to believe that there is a substantial risk that if the expectant mother is not held, the physical health of the unborn child, and of the child when born, will be affected or endangered by the adult expectant mother’s lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, and to believe that the expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good-faith effort to participate in any alcohol or other drug abuse services offered to her.
(a)
The extension may be granted only once for any petition.
(b)
In the event of failure to file a petition within the extension period provided for in this subsection, the judge shall order the adult expectant mother’s immediate release from custody.
(5)
The expectant mother may waive the hearing under this section. After any waiver, a hearing shall be granted at the request of any interested party.
H.
All orders to hold an expectant mother of an unborn child in custody shall be in writing, listing the reasons and criteria forming the basis for the decision.
I.
An order to hold an expectant mother in custody remains in effect until a dispositional order is granted or a consent decree is entered into, the petition is withdrawn or dismissed, or the order is modified or terminated by further order of the Court.
J.
Procedures and time lines for filing the petition and subsequent hearings shall follow §§ 278-35 through 278-43, except for the following:
(1)
The subject matter and any related findings and placement considerations for children abandoned, or alleged abuse or neglect shall not apply and be based on the unborn child of an expectant mother adjudged in need of protection or services. The subject matter, evidence and findings for jurisdiction in this subsection shall only relate to whether there is a substantial risk that the physical health of the unborn child, and the of the child when born, will be seriously affected or endangered due to the expectant mother’s lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, unless the expectant mother is taken into custody.
(2)
Prior to the commencement of the hearing, the expectant mother and the unborn child’s guardian ad litem shall be informed by the Court of the allegations that have been made or may be made, the nature and possible consequences of this hearing as compared to possible future hearings, the right to confront and cross-examine witnesses, and the right to present witnesses.
(3)
If the expectant mother is not represented by counsel at the hearing and the expectant mother is continued in custody as a result of the hearing, the expectant mother may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the expectant mother in custody be reheard. If the request is made, a rehearing shall take place as soon as possible. Any order to hold the expectant mother in custody shall be subject to rehearing for good cause, whether or not counsel was present.
(4)
Amendment of order. An order imposing restrictions on an expectant mother of an unborn child may at any time be amended, with notice, so as to place the expectant mother in another form of custody for failure of the adult expectant mother to conform to the conditions originally imposed.
(5)
Disposition. Disposition of the unborn child of an expectant mother adjudged in need of protection or services.
(a)
If the judge finds that the unborn child of an expectant mother is in need of protection or services, the judge shall enter an order deciding one or more of the dispositions of the case as provided in this section under a care and treatment plan, except that:
[1]
The order may not place any expectant mother of an unborn child not specifically found to be mentally ill in a facility that exclusively treats those categories of individuals; and
[2]
The Court may not place any expectant mother of an unborn child in need of protection or services outside of the expectant mother’s home unless the Court finds that the expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good-faith effort to participate in any alcohol or other drug abuse services offered to her.
(b)
If the judge finds that the unborn child of a child expectant mother is in need of protection or services, the judge shall enter an order deciding one or more of the dispositions of the case under a care and treatment plan.
(c)
The dispositions under this section are as follows:
[1]
Counseling. Counsel the expectant mother.
[2]
Supervision. Place the expectant mother under supervision of the Department, a department of the Tribe, if the Department approves, or a suitable adult, including an adult relative or friend of the expectant mother, under conditions prescribed by the judge, including reasonable rules for the expectant mother’s conduct, designed for the physical well-being of the unborn child. An order under this subsection may include an order to participate in mental health treatment, anger management, individual or family counseling or prenatal development training or education and to make a reasonable contribution, based on ability to pay, for the cost of those services.
[3]
Placement. Designate one of the following as the placement for the expectant mother:
[a]
The home of an adult relative or friend of the adult expectant mother.
[b]
A licensed community-based residential facility if the placement does not violate the conditions of the license.
[c]
A hospital or appropriate medical facility.
[4]
Special treatment of care. If the expectant mother is in need of special treatment or care, as identified in an evaluation and the Court report, the judge may order the expectant mother to obtain the special treatment or care. If the expectant mother fails or is financially unable to obtain the special treatment or care, the judge may order an appropriate agency to provide the special treatment or care. If a judge orders a tribal department to provide special treatment or care, the provision of that special treatment or care shall be subject to conditions. An order of special treatment or care under this subsection may not include an order for the administration of psychotropic drugs.
[5]
Alcohol or drug treatment or education.
[a]
The report prepared recommends that the expectant mother is in need of treatment for the use or abuse of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects, the Court may order the expectant mother to enter an outpatient alcohol and other drug abuse treatment program at an approved treatment facility.
[b]
The report prepared recommends that the expectant mother is in need of education relating to the use of alcohol beverages, controlled substances or controlled substance analogs, the Court may order the expectant mother to participate in an alcohol or other drug abuse education program approved by the Court.
[6]
Inpatient alcohol or drug treatment.
[a]
If, based on an evaluation and the Court report, the judge finds that the expectant mother is in need of inpatient treatment for her lack of self-control in the use of alcohol, controlled substances or controlled substance analogs, that inpatient treatment is appropriate for the expectant mother’s needs and that inpatient treatment is the least restrictive treatment consistent with the expectant mother’s needs, the judge may order the expectant mother to enter an inpatient alcohol or other drug abuse treatment program at an inpatient facility.
[7]
Services for child when born. If it appears that the unborn child may be born during the period of the dispositional order, the judge may order that the child, when born, be provided any services or care that may be ordered for a child in need of protection or services.
(d)
Amended order upon birth of child. An order of the Court may be amended or extended for an additional six-month term upon the birth of the child if it is found to be appropriate by the Court.