[FORM ICWA P-4]ICWA PETITION FOR ADJ, & TLC (following TIA)
[NAME], County Attorney
[STREET ADDRESS OR PO BOX]
[CITY, STATE AND ZIP CODE]
[PHONE NUMBER]
Attorney for Department
MONTANA [NUMBER] JUDICIAL DISTRICT COURT, [NAME] COUNTY
In the Matter of ) Cause No. DN- [NUMBER]
) Companion Cause No. DN-[NUMBER]
[CHILD’S NAME], )
)
YOUTH IN NEED OF CARE )
PETITION FOR ADJUDICATION OF CHILD AS YOUTH IN NEED OF CARE
and TEMPORARY LEGAL CUSTODY
COMES NOW, the Department of Public Health and Human Services, Child and Family Services Division (the Department), by and through [ATTORNEY], [ATTORNEY TITLE], and respectfully petitions the court for Emergency Protective Services, Adjudication of Child as Youth in Need of Care and Temporary Legal Custody as follows:
I. INFORMATION
1. The pertinent information regarding the above-named youth follows:
[CHILD’S NAME][DOB][LOCATION OF CHILD]
2. The pertinent information regarding the parents having legal custody of the youth follows:
Birth mother:Birth father:
[BIRTH MOTHER NAME][BIRTH FATHER NAME]
[STREET ADDRESS][STREET ADDRESS]
[CITY, STATE][CITY, STATE]
3. The pertinent information regarding any other persons who are necessary parties to this action follows:
To the best of the Department’s knowledge, the child is an Indian Child for purposes of the Indian Child Welfare Act (ICWA), 25 U.S.C. §1901 et. seq. [SELECT ONE] The child is a member of [NAME OF CHILD’S TRIBE] -OR- The child may be enrolled or eligible for enrollment in [NAME OF TRIBE].
II. ADJUDICATION OF CHILD AS YOUTH IN NEED OF CARE
1. Petitioner alleges that there is sufficient evidence to establish by clear and convincing evidence that the above-named child is a Youth in Need of Care as defined in Mont. Code Ann. § 41-3-102, such that the Court should ender an order of adjudication of Youth in Need of Care and Temporary Legal Custody.
2.The cause, as far as is possible to ascertain, is the parents’ inability to safely and appropriately parent their child; all as more particularly described in the attached social worker’s affidavit.
3. The nature of the abuse and neglect and the facts that resulted in state intervention and upon which case work, disposition, court review and possible termination is based are the same facts as set out in the attached affidavit which is [state the nature of abuse/neglect briefly].
4. Dismissing the petition would create a substantial risk of harm to the child or would be a detriment to the child’s physical or psychological well-being.
5. The Department has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and these efforts have been unsuccessful. Those active efforts include:
a. [LIST EFFORTS]
6. There is a legal basis for continued Court and DPHHS intervention.
III. RELIEF REQUESTED
WHEREFORE, Petitioner requests the Court make written findings pursuant to Mont. Code Ann. § 41-3-347(7) (2013) on the following:
1. That the social worker has conducted a thorough investigation into the circumstances surrounding the basis for the allegations of abuse or neglect of the child, all as is more specifically stated in the attached affidavit wherein the facts establish [NATURE OF ABUSE AND NEGLECT].
2. That Petitioner has shown by clear and convincing evidence that continued Court and Department intervention is required.
3. That the Department has made reasonable efforts to avoid protective placement of the child or to make it possible to safely return the child to the child’s home as follows:
a. [LIST EFFORTS]
4. Incorporate the terms and provisions of its previous orders granting relief;
5. Enter an order adjudicating the child as a Youth in Need of Care as established by clear and convincing evidence;
6. Transfer legal custody of the child to the Department for a period not to exceed six months or until further order of the Court;
7. For any and all other such disposition that is in the child’s best interests.
DATED this ______day of ______, 201__.
______
[ATTORNEY NAME]
[ATTORNEY TITLE]
NOTICE
Please take notice that pursuant to Mont. Code Ann. § 41-3-427(1)(d), (2013), you, as the child’s parent, guardian or other person having physical custody of the child, may have a support person present during any in-person meeting with a Department social worker concerning emergency protective services. The Department will make reasonable accommodations in scheduling an in-person meeting with the social worker.
Furthermore, pursuant to Mont. Code Ann. § 41-3-422(13)(2013) you, as the child’s parent, guardian or other person having physical or legal custody of the child, have the right to:
(a)request the appointment of counsel if indigent, or is appointment of counsel us required under the federal Indian Child Welfare Act, if applicable; and
(b) contest the allegations in the petition.
The following timelines apply to hearings and determinations required under this chapter:
Emergency protective services: a petition must be filed within five (5) workings days.
Show cause hearing: must be conducted with 20 days of the filing of the initial child abuse and neglect petition unless otherwise stipulated by the parties pursuant to Mont. Code Ann. § 41-3-434(2013) or unless an extension of time is granted by the court. Determinations at a show cause hearing include those contained within Mont. Code Ann. § 41-3-432(5)(2013).
Temporary investigative authority: may not be issues for a period longer than 90 days.
Adjudicatory hearing: must be held within 90 days of a show cause hearing under Mont. Code Ann. § 41-3-437 (2013).
Dispositional hearing: unless a petition is dismissed or unless otherwise stipulated by the parties pursuant to Mont. Code Ann. § 41-3-434 (2013) or ordered by the court, a dispositional hearing must be held on every petition filed within 20 days after an adjudicatory order has been entered under Mont. Code Ann. § 41-3-437 (2013).
Temporary Legal Custody: an order for temporary legal custody may be in effect for no longer than 6 months. Before the expiration of the order for temporary legal custody, the county attorney, the attorney general, or an attorney hired by the county may petition for an extension of temporary legal custody, not to exceed 6 months, upon showing that additional time is necessary for the parent to successfully complete a treatment plan and a judicial finding that an extension is in the child’s best interests.
Permanency hearing: If the court finds that preservation or reunification services are not necessary pursuant to subsection (2) or (3) of Mont. Code Ann. § 41-3-423 (2013), a permanency hearing must be held within 30 days of that determination and reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanency placement of the child. Otherwise, a permanency hearing must be held no later than 12 months after the initial court findings that the child has been subjected to abuse or neglect, or 12 months after the child’s first 60 days of removal from the home, whichever comes first.
Permanent Legal Custody: If a child is in foster care for 15 of the last 22 months, state law presumes that termination of parental rights is in the best interests of the child and the state is required to file a petition to terminate parental rights.
CERTIFICATE OF SERVICE
I hereby certify that on this ____ day of ----, 20__, I caused to be delivered a true and accurate copy of the foregoing Petition for Adjudication of Child as Youth in Need of Care and Temporary Legal Custody to the following:
Dated: ______
PETITION FOR ADJUDICATION OF CHILD AS YOUTH IN NEED OF CARE and TEMPORARY LEGAL CUSTODY Page 1 of 5