In re Redacted

13 Am. Tribal Law 257
CourtLittle Traverse Bay Bands of Odawa Indians Tribal Appellate Court
DecidedFebruary 9, 2011
DocketNo. A-014-0410
StatusPublished

This text of 13 Am. Tribal Law 257 (In re Redacted) is published on Counsel Stack Legal Research, covering Little Traverse Bay Bands of Odawa Indians Tribal Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Redacted, 13 Am. Tribal Law 257 (odawactapp 2011).

Opinion

[259]*259DECISION AND ORDER

PER CURIAM.

On March 16, 2010, the Children’s Division Court issued an order sua sponte suspending the care and supervision activities of the LTBB Department of Social Services (DSS), However, no petition for such a suspension had been filed, no notice had been provided the parties, and no hearing was held. The Tribal Presenting Officer filed an appeal of the order, arguing that the Children’s Division Court lacked the authority to issue the order. We agree and reverse and remand.

Background

In March 2009, the Children’s Division of the Little Traverse Bay Bands of Odawa Indians (LTBB) Tribal Court, Judge Jenny Lee Kronk presiding, ordered that [redacted] be placed with the LTBB Department of Social Services for care and supervision. The order was issued in response to a Child in Need of Care Petition filed by Tribal Presenting Officer Matthew Lesky on March 6, 2009, which claimed that [redactedj’s circumstances met the definition of a “child in need of care” under the Child Welfare Statute in effect at the time.

For nearly five months prior to the start of this child welfare matter, [redacted] had been participating in the LTBB Odawa Youth Healing to Wellness Program (OYHTW). On June 3, 2010, [redacted] was unsuccessfully discharged from the OYHTW Program by the Tribal Court, Judge Jenny Lee Kronk presiding, and the Tribe’s supervision of [redacted] was returned to Emmet County.

DSS submitted Court Reports detailing its care and supervision of [redacted] on April 20 and June 10, 2009, and it submitted an Updated Case Service Plan dated May 7, 2009 on June 12.

On May 26, 2009, [redacted] ran away from [redacted] foster care placement. On June 12, 2009, the Children’s Division held a disposition hearing, whose participants included the Tribal Presenting Officer, the DSS Director, the Guardian ad litem and [redacted]’s biological mother. In the Order Following Disposition Hearing dated June 12,2009, Judge Kronk stated that the Child Welfare Commission, had submitted a resolution recommending that the Tribal Presenting Officer withdraw the child in need of care petition in the case, and the DSS Director and Guardian ad litem each agreed that the petition should be either withdrawn or the case service plan approved. Judge Kronk’s order ultimately approved the case service plan for [redacted] and continued [redacted] as a temporary ward of the Children’s Division Court.

On June 22, 2009, the Children’s Division Court issued an additional order terminating the voluntarily relinquished parental rights of [redacted]’s biological mother. This order was issued after a hearing was held that same day.

After [redacted] was apprehended in September 2009, he was sentenced to 93 days in Emmet County Jail by the Family Division of Emmet County Circuit Court for violation of probation, [redacted] sentence was later extended, and [redacted] was ultimately released on March 2, 2010. Two weeks later, without providing notice or holding a hearing, the Children’s Division Court issued an order sua sponte that suspended the care and supervision activities of the LTBB DSS. No petition to terminate DSS care and supervision activities had been filed with the court. In [260]*260support of its conclusion, the order also stated that [redacted] received additional services from Charlevoix County and the LTBB Odawa Youth Healing to Wellness (OYHTW) program. These services, which included [redacted]’s placement in a foster home, [redacted] enrollment in Recovery High and bi-weekly monitoring by the OYHTW team, were deemed by the Children’s Division Court to be unnecessarily duplicative of the care and supervision services provided by the LTBB DSS.

On April 13, 2010, Tribal Presenting Officer Matthew Lesky filed a timely notice of appeal requesting that the Tribal Appellate Court reverse the order terminating the care and supervision activities provided to [redacted]. The appellant argues 1) that the LTBB Child Protection Statute requires that the Tribal Court hold a hearing before issuing an order under these circumstances; and 2) that the Children’s Division erred when it found that the DSS care and supervision activities unnecessarily duplicated the services provided by Charlevoix County. The appellant also argued that the lower court’s order violated the separation of powers between the executive and judicial branches of government, in violation of the LTBB Constitution.

Analysis

Before considering the issue at the heart of this case, the Appellate Court explains why this case did not become moot when [redacted] became eighteen years old on [redacted] 2010, four days after the Notice of Appeal was filed in this case. The first reason is that a child does not automatically become ineligible for child welfare services under the Child Protection Statute when the child reaches the age of eighteen. There is no provision in the Statute that draws the line on the eighteenth birthday. In fact, the opposite is true, since the Statute’s definition of “child” includes “a person who is eighteen (18) years of age, but remains under the continuing jurisdiction of the Court.” WOS 2009-004 Child Protection Statute, Section IV(E). The Appellate Court’s review of this appeal effectively continues the jurisdiction of the Court, despite any later attempt by the lower court to terminate jurisdiction.

The second reason why the case did not become moot is that an automatic rule making a child ineligible for child protective services would create potentially harmful, damaging results for the welfare of a child. A child who is enrolled in a school program for at-risk youth, who is placed in a home for care and supervision, who is receiving counseling, financial assistance, or other services would certainly be harmed if the services were automatically terminated on a birthday. For this reason, the Appellate Court holds that the Children’s Court must hold a hearing when a child deemed a child in need of care approaches their nineteenth birthday. At the hearing, the Court must consider the recommendations of the parties to the case and also consider whether the child is eligible to transition to any other social services.

Now, the Appellate Court turns to the basic issue before it. That issue is whether the Children’s Division Court may terminate the care and supervision activities of the Department of Social Services without a petition to terminate such activities having been filed and without providing notice or holding a hearing. The Tribal Court may not do so.

With only a few exceptions, the Child Protection Statute requires that the Court provide notice to the parties and hold a hearing every time the Court takes any action with respect to a juvenile under the Court’s jurisdiction. Hearings are required when the Court receives a transfer [261]*261of jurisdiction from state court (Section VI(D)(7)).

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Bluebook (online)
13 Am. Tribal Law 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-redacted-odawactapp-2011.