Álchíní Bi Beehaz’áannii Act1 Provisional Rules of Procedure  
* * These provisional rules will ultimately be superceded by revised rules. As of OCtober 28, DO NOT CITE **

When the Navajo Nation Council repealed the Children's Code at 9 N.N.C. §§ 1001-1307 and enacted the Álchíní Bi Beehaz’áannii Act of 2011, eff. January 2, 2012 at 9 N.N.C. §§ 1001-1504, the Navajo Children's Code Rules of Procedure, originally adopted by Order of the Navajo Nation Supreme Court (No. SC-SP-01-95) on October 4, 1995, became urgently in need of complete revision. On December 4, 2012, the Chief Justice issued Administrative Order 48-2012 In the Matter of Conforming Rules to New Laws which required court rules on the Judicial Branch website to be updated on a provisional basis to reflect new statutory changes pending permanent changes to the rules. The revisions to the Children's Code Rules of Procedure were completed on April 28, 2013. Changes are reflected via strike-throughs and dark blue text instead of underlines for ease of practitioner use. As required by Admin Order 48-2012, each change is accompanied by a footnote showing the current statutory provision or caselaw derived from.

A PUBLIC COMMENT PERIOD FOR REVISED RULES HAS NOW BEGUN, ENDING NOVEMBER 8.

Click here for a summary of all comments received.

  1. GENERAL PROVISIONS
  2. DELINQUENCY
  3. CHINS
  4. DEPENDENCY
  5. TERMINATION OF PARENTAL RIGHTS
  6. ICWA
I.   GENERAL PROVISIONS
RULE 1 Scope of Rules.
  1(a) Construction Citing.  These Rules govern the procedure in all actions arising under the Navajo Nation Álchíní Bi Beehaz’áannii Act. They shall be construed to effectuate the purposes of the Álchíní Bi Beehaz’áannii Act in a just, speedy and economical manner.  Until adoption by the Supreme Court, these Rules shall be cited as A.B.B.A.Provisional Rules. Any provisions within these rules pertaining to adoption or guardianship shall apply only to those matters arising under the Álchíní Bi Beehaz’áannii Act
  1(b) Rules of Civil Procedure.  Matters not covered by these Rules shall proceed according to Navajo Nation Rules of Civil Procedure.
1(c) Álchíní Bi Beehaz’áannii Act.  These Rules supplement the Álchíní Bi Beehaz’áannii Act and are secondary to it.
RULE 2 Definitions and Terms
The following terms and phrases, as used in these Rules, shall have the indicated meanings.
2(a) ABBA.  Álchíní Bi Beehaz’áannii Act.
  2(b) Adjudication.  The decision of the court, which determines the status of a child as a result of a petition being filed.
  2(c) Adjustment.  The handling of a complaint in a manner, which eliminates the need for filing a petition.
  2(d) Complaint.  Information and/or allegations regarding a child prior to the filing of a petition.
  2(e) Counsel.  A member of the Navajo Nation Bar Association or associated counsel
  2(f) Disposition.  The order entered following adjudication on the petition.
  2(f)(1) Division.  Division of Social Services.
  2(g) Entry of Judgment.  Occurs on the date the judge signs the order, which disposes of the matter
  2(g)(1) Family Conference (FC).  A mandatory meeting conducted by the Division in dependency cases within 48 hours of the child's removal from the home, normally prior to teh filing of a petition.
  2(h) Family Group Conferencing (FGC) While the "General Provisions" section in the ABBA defines FGC as a meeting initiated by the Division, The ABBA specifically provides for court referrals to FGC either through the Division or Peacemaking Program in dependency proceedings,1a and only through the Peacemaking Program in CHINS proceedings.1b The Peacemaking Program offers a traditional form of FGC which is a family meeting participated by a peacemaker and a representative of the Division and which may also include other traditional life value services. These rules accept both forms of FGC.
  2(h)(1) Guardian Ad Litem.  Any person appointed by the court to speak for the child represent the best interests of the child.  A guardian ad litem is not neither the legal child's guardian nor the legal counsel for the child and is not a named party to the case. of the person and/or the estate of a child.  The guardian ad litem is not the legal counsel.
  2(i) Navajo Nation.  All lands making up Navajo Indian Country as defined in the Navajo Nation Code.  The Navajo Nation is the government of the Navajo Tribe.
  2(j) Order.  Every document signed by the judge as part of a proceeding including orders prepared by the parties, their representatives, or the court.
  2(j)(1) Peacemaking.  Includes Hózhóji Naat’aah (Diné Traditional Peacemaking), Áłchíní BáNdazhnit’á (Diné Family Group Conferencing), Nábináhaazláago Áłch’į’ yáti’ (Life Value Engagements) and other services.2
  2(k) Petition.  The pleading, which initiates a case or seeks new or additional relief from the court.
  2(l) Pleadings.  All papers filed or required to be filed with the court by a party.  Pleadings shall include petitions, motions and responses.
  2(m) Necessary Party.  Any person who is required under the ABBA or under these rules to receive notice of the filing of a petition.
  2(n) Party.  The child, necessary parties or any other person whose presence in the action is required in the interests of justice or designated by the court as a party.
  2(o) Review Hearing.  Any hearing before or after adjudication and/or disposition, for the purpose of informing the court of the status of the child and/or of the action.
  2(p) Ward of the Court.  A child under the continuing jurisdiction of the court. The court obtains wardship over a child when that child comes under the jurisdiction of the court by a petition being filed or with a voluntary agreement attached.  The court has continuing jurisdiction over a child as a result of a petition being filed or a voluntary placement.  Such wardship continues until jurisdiction terminates pursuant to the ABBA.
  2(q) Emancipation.  This term is used with reference to the emancipation of a minor child from its parents, which involves an entire surrender of the right to the care, custody and earnings of such child as well as a renunciation of parental duties and obligations.
RULE 3 Commencement of Action.
  An action under the ABBA is commenced by the filing of a petition with the court.  The petition shall be filed in the name of the child and shall be signed by a member of the Navajo Nation Bar Association or by a party pro se.  Petitions to adjudicate a child delinquent, in need of supervision, or dependent shall be signed by the Prosecutor, who shall also sign petitions in termination of parental rights proceedings when the petitioner is a government agency.
RULE 4 Parties.
  4(a) Child.  The child who is the subject of the action is the named party in all pleadings under the ABBA.
  4(b) Parent(s), Guardian or Custodian.  The parents, guardian and/or custodian are necessary parties in action to adjudicate a child delinquent, in need of supervision or dependent, to terminate parental rights, and all other matters arising under the ABBA.
  4(c) Others.  The court on its own motion or upon a petition may designate as a necessary party and other person whose presence is required in the interests of justice.
  4(d) Participation of a Necessary Party.  A necessary party may file pleadings in an action upon leave of the court and may request relief of the court.
  4(e) Purpose of Necessary Parties.  The purpose of designating necessary parties is to permit the court to make a full and complete adjudication of the matters before it, to advise the necessary parties of the pending matters, and to enable the court to enforce and carry out its orders.
RULE 5 Guardian Ad Litem.
  5(a) Appointment for Child.  The court shall appoint a guardian ad litem to speak on behalf of the child when such appointment is authorized by the ABBA or when the court determines it is in the best interests of the child.  The guardian ad litem shall not be the legal counsel for the child.
  5(b) Qualifications.  A guardian ad litem may be a member of the Navajo Nation Bar Association or a member of the community who has received training to be a guardian ad litem or whom the court finds can reasonably present the interests of the child or person for whom the appointment is made.
  5(c) Duties.  The duties of a guardian ad litem are to inform the court on matters regarding the background, environment and needs and wishes of the person for whom appointed, to appear at all proceedings and to speak on behalf of such person.
  5(d) Access to Reports and Records.  Upon appointment the guardian ad litem shall have access and be provided reports, records and other documents filed or made available to the court in the matter.
  5(e) Discharge.  The guardian ad litem may be discharged only by order of the court or by the completion of the proceedings.  Cases, which remain under the continuing jurisdiction of the court, shall require the guardian ad litem to continue active participation in the proceeding sand to attend review hearings.
  5(f) Upon discharge the guardian ad litem shall return to the court all records pertaining to the case.
  5(g) Disclosure.  The guardian ad litem shall be subject to the privacy provisions of the ABBA and other laws and shall not disclose any information obtained pursuant to the duties of guardians ad litem except pursuant to the orders and directives of the court.
RULE 6 Sealing of Records.
  Records sealed shall be the entire record of the case.  When sealed records are placed on microfilm.  They shall be laced on a microfilm cassette set aside for sealed records.
RULE 7 Fees.
  7(a) Navajo Nation.  Filing fees for petitions filed by the Navajo Nation shall be waived.
  7(b) Peacemaking Fees.  Fees for referrals to peacemaking under the ABBA shall be paid by the Peacemaking Program subject to program qualification and availability of funds.
II.   DELINQUENCY PROCEEDINGS
RULE 8 Petition.
  In addition to the requirements of the ABBA the petition shall set forth the date and time the complaint was received by the Prosecutor.
RULE 9 Order of Proceedings.
  The following shall be the order in which a delinquency proceeding is handled:
  1. Preliminary Diversion by Prosecutor in lieu of petition, including peacemaking services.3 The Prosecutor shall advise the child and the child's parent, guardian or custodian that peacemaker fees shall be paid by the Peacemaking Program subject to availability of funds.

  2. Petition. Separate petitions are required for each violation4 and must be filed5
    (a)    within 24 hrs of arrest report if child is detained, excluding weekends and holidays
    (b)    within 48 hours of arrest report if child is not detained, excluding weekends and holidays
    (c)    within 30 calendar days of date preliminary inquiry began. (may authorize Prosecutor to re-file within 20 calendar days of dismissal upon showing of due diligence.

  3. Advisement of Basic Rights. At each separate appearance for the duration of Court proceedings, advise child and parties of the child's basic rights, namely the right to legal counsel, to remain silent, to not be questioned without the presence of a parent, guardian, custodian or legal counsel, to the opportunity to introduce evidence and to be heard, to confront and cross-examine witness(es) testifying against him/her, and to admit or deny the allegations in the petition.6

  4. Hearing Consolidation.  At any time other than a transfer hearing, the court may handle all matters at one time or in phases provided that any consolidation is consistent with time requirements. A detention hearing and preliminary hearing may not be consolidated in a single hearing but may be set on the same day in phases, with the detention hearing proceeding first before the preliminary hearing.

  5. Detention Hearing shall be held within 24 hrs of petition, excluding weekends and holidays if a child is detained. The Court shall:7
    (a)    Hear evidence relevant and material to detention
    (b)    Determine probable cause that detention is required pursuant to 9 N.N.C. § 1311(F); otherwise, order release, conditional, restricted, supervised, or unrestricted.
    (c)    Detention hearings may not be continued for any reason.
    (d)    The right to counsel does not attach at the detention hearing.
    (e)    A detention hearing shall proceed before the preliminary hearing.

  6. Consent Decree may be entered any time after petition is filed and may be in force up to 6 months, extendable for 3 months. The child has 30 days to object.8

  7. Preliminary Hearing shall be held within 10 calendar days of petition when child is in custody, otherwise within 20 days. The right to counsel attaches at the preliminary hearing. Continuances, including for purposes of obtaining counsel, may not exceed 10 calendar days when child is in custody, otherwise may not exceed 20 days. The following shall occur:9
    (a)    Inform parties as to contents of petition.
    (b)    Advise child and parties of rights of the child as set forth at 9 N.N.C. § 1310.
    (c)    Determine probable cause that this delinquent act occurred.
    (d)    May
    Aappoint guardian ad litem if appropriate after a preliminary finding per 9 N.N.C. § 1310(G) and (H).
    (e)    Appoint counsel for child
    if appropriate if criteria is met pursuant to 9 N.N.C. § 1310(A).
    (f)     Child will admit or deny allegations.
    (g)    If admit, set dispositional hearing.
    (h)    If deny, set adjudicatory hearing.

  8. Hearing on Transfer to Adult Court shall be heard only upon motion of the prosecutor. The following shall occur:10
    (a)    Child shall immediately be appointed counsel.
    (b)    Prior to hearing, a pre-dispositional report shall be obtained from Probation Services.
    (c)    Determine reasonable grounds for the necessity of transfer per 9 N.N.C. § 1312(A)(4).
    (d)    If transfer is necessary, issue transfer order with specific findings.

  9. Provisional Hearing.

  10. Adjudicatory Hearing. The following shall occur:11
    (a)    Determine whether allegations are proved beyond reasonable doubt, otherwise dismiss.
    (b)    Determine whether child is in need of care or rehabilitation.
    (c)    If Court finds child committed the delinquent act(s),
             (i)    Schedule dispositional hearing.
             (ii)    Order predispositional study and report.
             (iii)    Specific written findings required.

  11. Care and Rehabilitation Determination.  Findings that a child is in need of care or rehabilitation will require a further hearing if there is no concurrence.12

  12. Predispositional Study and Report shall be ordered from Probation Services who shall submit the report to court and all parties no later than 5 days prior to dispositional hearing.13

  13. Dispositional Hearing.

  14. Probation Revocation Hearing.

RULE 10. Evidence.
10(A) Denial of Allegations.  If the allegations of the petition are denied, the court shall receive evidence on the allegations.
10(b) Evidence.  The Court shall receive relevant and material evidence in substantial conformity to the Rules of Evidence in proceedings on the petition and specifically as follows:
(a)    Out of court statements inadmissible if objected by the child;
(b)    Illegally seized or obtained evidence inadmissible to prove allegations, upon objection by the child.
14
10(c) Admission.  If the allegations of the petition are admitted or confessed, the court may not rely on it unless corroborated by other evidence or stipulated admission.15
III.   CHILD IN NEED OF SUPERVISION PROCEEDINGS
RULE 11 Petition.
In addition to the requirements of the ABBA the petition shall set forth the date and time the information was received by the Prosecutor.
RULE 12 Order of Proceedings.
  The following shall be the order in which a child in need of supervision proceeding is handled:
 
  1. Pre-Filing Referrals to Peacemaking Program and Diversion Programs.  Prior to filing a petition, the Prosecutor may make peacemaking and diversion referrals. Additionally, family disputes or neglect where the child has not been removed may be referred to family group conferencing through the Peacemaking Program.16 The Prosecutor shall advise the child and the child's parent, guardian or custodian that peacemaker fees shall be paid by the Peacemaking Program subject to availability of funds.

  2. Petition must be filed
    (a)    Within 48 hours if a child is in protective custody, excluding weekends and Court holidays;
    17
    (b)    Within 30 calendar days from the date of the information provided to the Prosecutor if a child is not in protective custody.18

  3. Advisement of Basic Rights. From time of filing of the petition or when taken into protective custody, the child shall be advised of the privilege against self incrimination, including the child’s right to have his/her parent(s), guardian(s), or custodian(s) present.19

  4. Protective Custody Hearing.
    (a)    The Court shall hold a protective custody hearing within 24 hrs of the filing of the petition, excluding weekends and Court holidays;20
    (b)    A notice and a statement providing the reasons for taking the child into protective custody shall be provided to the Court within 72 hrs of a child being taken into protective custody, excluding weekends and Court holidays.21
    (c)    Court may appoint Hearing officer solely to determine custody.
    (d)    The following shall occur:
    22
             (i)    Advise child and parties of basic rights pursuant to 9 N.N.C. § 1204.
             (ii)    Appoint guardian ad litem if appropriate.
             (iii)    Appoint counsel for child if appropriate.
             (iv)    Hear all relevant and material evidence, even if otherwise inadmissible in a hearing on the petition.
             (v)    Determine probable cause that protective custody is necessary pursuant to 9 N.N.C. § 1207(F).
             (vi)    Otherwise, order release or release with conditions.

    (e)    If a court order is not issued within these 72 hours, the child shall be released.23

  5. Consent Decree may be entered any time after petition is filed on motion of the Prosecutor or child and may be in force up to 6 months, unless a motion for hearing is filed.24

  6. Referrals to Family Group Conferencing. At any time after a petition is filed, a referral by the Court may be made through the Peacemaking Program.25 Fees shall be paid by the Peacemaking Program subject to availability of funds.

  7. Preliminary Hearing shall be held within 10 calendar days of petition when child is in protective custody, otherwise within 20 days. Continuances may not exceed 10 calendar days when child is in protective custody, otherwise may not exceed 20 days.26 The following shall occur:27
    (a)    Inform parties as to contents of petition and possible disposition.
    (b)    Advise child and parties of basic rights pursuant to 9 N.N.C. § 1204.
    (c)    Determine probable cause that child is in need of supervision.
    (d)    Appoint guardian ad litem if appropriate.
    (e)    Appoint counsel for child if appropriate.
    (f)    Child will admit or deny allegations.
    (g)    If admit, set dispositional hearing.
    (h)    If deny, set adjudicatory hearing.

  8. Hearing Consolidation.  The court may not consolidate hearings on the petition with other proceedings.28

  9. Provisional Hearing, if required.

  10. Adjudicatory Hearing. The following shall occur:29
    (a)    Hearings shall be closed to the public.
    (b)    Advise child and parties of basic rights pursuant to 9 N.N.C. § 1204.
    (c)   
    Determine whether child is in need of supervision by clear and convincing evidence, otherwise dismiss without prejudice.
    (d)    If Court finds the child is in need of supervision, the Court shall
             (i)    Schedule a disposition hearing within 30 days.
             (ii)    Order predisposition study and report.
    30
             (iii)    Order protective custody, if appropriate.
             (iv)    Specific written findings required.

  11. Predispositional Study and Report shall be ordered from Probation Services who shall submit the report to court and all parties no later than 5 days prior to dispositional hearing.31

  12. Diagnostic Custody.  Court may order that child be held in a facility for diagnostic purposes not to exceed 30 days with direction for submission of a written report indicating the recommended disposition.32

  13. Dispositional Hearing. The following shall ocur:33
    (a)    Court may authorize any disposition authorized for a dependent child; transfer legal custody to an agency; or place the child under court supervision.
    (b)    If Court orders child into an agency's protective custody, transmit to that agency all reports pertinent to care and treatment of the child.
    (c)    Probation Services or Division shall contact Prosecutor in writing to file a Notice of Change of Placement or to Request Hearing if Court orders child into protective custody and child is to be removed from initial placement.

  14. Contempt. The Court may hold an order to show cause hearing and issue a contempt order if a child violates a valid court order. Options to address the child's compliance shall not include detention.34

  15. Escalation to Delinquency. The Prosecutor may file a delinquency proceeding for a child's continued violations of court orders after all possible options have been considered.35

RULE 13. Evidence.
13(A) Denial of Allegations.  If the allegations of the petition are denied, the court shall receive evidence on the allegations.
13(b) Evidence.  The Court shall receive relevant and material evidence in substantial conformity to the Rules of Evidence in proceedings on the petition and specifically as follows:36
(a)    Extra-judicial statements that would be inadmissible in a criminal matter shall not be received in evidence if objected;
(b)    Illegally seized or obtained evidence inadmissible to establish allegations, if objected.
13(c) Admission.  The court may not rely on an extra-judicial admission or confession to find that the child committed the alleged act(s) unless corroborated by other evidence.37
IV.   DEPENDENCY PROCEEDINGS
RULE 14 Petition.
In addition to the requirements of the ABBA the petition shall set forth the date and time the referral was received by the Prosecutor.
RULE 15 Service.
15(a) Duty of Prosecutor.  In proceedings to adjudicate a child dependent, it shall be the duty of the Prosecutor to make all reasonable and diligent efforts to serve the child's parent(s), guardian(s) or custodian(s), at their last known physical address, or if the parent(s), guardian(s) or custodian(s) cannot be found, to an immediate relative of the parent(s), guardian(s) or custodian(s).
15(b) Affidavit. The Court may require the Prosecutor to submit an affidavit as to the efforts made to obtain service.
15(c) Publication Service. When the parent(s), guardian(s) or custodian(s) cannot be personally served, the Court shall issue an order of publication.37A 
15(d) Electronic Service of Notice of Shelter Care Hearing. Because notice shall be given with sufficient time for the family to attend the hearing and given the expedited nature of the hearing, written notice may be given electronically (via fax or email) provided the parties agree in advance to the method to be used.  
15(e) "Immediate Relative" Defined. For purposes of service under this section, "immediate relative" of the parent(s), guardian(s) or custodian(s) of the alleged dependent child shall mean a close relative such as a spouse, civil partner, cohabiting partner, grandparent, parent, sibling, half-sibling, siblings-in-law, or close step-relatives living within the territorial Navajo Nation.  
RULE 16 Order of Proceedings.
  The following shall be the order of proceedings upon a petition to adjudicate a child dependent.
 
  1. Voluntary Placement may be agreed to between the child's parent and Division for temporary placement prior to the filing of a petition. The following shall occur:38
    (a)    Agreement shall be filed for docketing, by Prosecutor.
    (b)    The Division shall timely request a best interests/reasonable efforts hearing which 9 N.N.C.
    § 1116(D) requires shall be scheduled on the 150th day.
    (c)    If the child has been returned home, Prosecutor may vacate the hearing.
    (d)    Court shall issue a best interests/reasonable efforts determination by the 179th day of voluntary placement.
    (e)    Upon the Court's determination, the Division shall refer the case to the Prosecutor for filing of a dependency petition.

  2. Initial Hold Period is the period prior to the filing of a petition when a child is removed from home by law enforcement or the Division reasonable grounds exist to believe the child is abused or neglected and removal is necessary. The following deadlines apply:
    (a)    Medical clearance obtained by Division within 24 hrs.38a
    (b)    Written notice with a statement providing reasons for initial hold within 72 hrs, excluding weekends and holidays to Prosecutor and child's parent(s), guardian(s) or custodian(s).39
    (c)    Initial hold period shall not exceed 120 hrs, excluding weekends and holidays.
    40
    (d)    Law enforcement shall release child within 24 hrs
    when there is no immediate danger to the child.41
    (e)    Family
    Group Conference by the Division within 48 hrs, excluding weekends and holidays.42
    (f)    Referral to Prosecutor within 72 hrs for filing dependency petition.
    43

  3. Petition shall be filed within 24 hrs from referral by Division to Prosecutor, excluding weekends and court holidays or shall be dismissed and the child released.44

  4. Motion for Immediate Temporary Custody. If a child is taken into custody a motion for temporary custody shall be filed concurrently with the petition.

  5. Summons Issued; Service.

  6. Notice of Shelter Care Hearing if and motion for immediate temporary custody is filed. Written Notice of Shelter Care hearing shall be issued and served on the parent(s), guardian(s), or custodian(s) of the alleged dependent child. If none of these can be found, notice shall be given to an immediate relative of the parent(s), guardian(s) or custodian(s). Because notice shall be given with sufficient time for the family to attend the hearing and given the expedited nature of the hearing, written notice may be given electronically provided the parties agree in advance to the method to be used. If the individuals cannot be timely found, hearing may be continued no more than 45 calendar days in order to effectuate service.

  7. Shelter Care Hearing45 if required.
    (a)    May be held after or concurrent with filing of petition upon motion.
    (b)    Shall be within 24 hrs from filing of motion for temporary custody, excluding weekends and court holidays.
    (c)    May be continued no more than 45 days at request of parent(s), guardian(s), or custodian(s) in order to retain or be appointed counsel.
    (d)    Court may appoint Hearing officer solely to recommend findings on custody.
    The following shall occur:
             (i)    If notice proper, proceed with hearing even if parent(s), guardian(s), or custodian(s) fail to appear.
             (ii)    Advise parties of basic rights, including their right to be represented and appointed legal counsel.
             (iii)   
    May appoint guardian ad litem.
             (iv)    Hear all relevant and material evidence, even if otherwise inadmissible in a hearing on the petition.
          
      (v)    Determine probable cause that protective custody is necessary pursuant to criteria at 9 N.N.C. § 1207(F).
             (vi)    If no probable cause, order release w/ or w/o protective supervision.

    (e)    Determine probable cause for removal pursuant to criteria at 9 N.N.C. § 1108(C).

    (f)    Any temporary custody order shall contain findings “that reasonable efforts to prevent removal from the family were made or that it is reasonable to make no efforts to reunite the family, and that out of home placement would be in the best interest of the child or that remaining in the current residence is contrary to the welfare of the child.”

  8. Referrals to Family Group Conferencing. At any time after a petition is filed, a referral by the Court may be made through the Division or Peacemaking Program, regardless of whether the child has been removed.46 For referrals through the Peacemaking Program, fees shall be paid by the Peacemaking Program subject to program qualification and availability of funds. If a party requests such a referral, the Court shall provide the referral or provide a written explanation why the referral will no tbe made.

  9. Informal Adjustment. At any time prior to adjustment hearing proceedings may be suspended by motion of the Prosecutor with Division concurrence as follows:47
    (a)    Suspension is in best interest of child and protects child's health and safety.
    (b)    Parties have developed and signed an informal adjustment plan.
    (c)    Plan shall not exceed 6 months from signing with any stipulated extension not to exceed 90 days.
    (d)    Petition shall be dismissed by motion of Prosecutor upon plan's completion.
    (e)    Reinstatement may be by motion of Prosecutor upon noncompliance.

  10. Preliminary Hearing shall be held within 15 calendar days of the shelter care hearing. The following shall occur:48
    (a)    Review status of service of process.
    (b)    Inform parties as to contents of petition.
    (c)    Advise parties of continuing legal rights to representation.
    (d)    Review response or proceed to adjudicatory hearing if response waived.
    (e)    Narrow issues.
    (f)    Consider alternative processes.
    (g)    If no settlement, schedule adjudicatory hearing no later than 30 calendar days from preliminary hearing.

  11. Provisional Hearing49 shall be held if service is by publication and parent(s), guardian(s) or custodian(s) fail to appear.
    (a)    Court shall enter an interlocutory dispositional order effective up to 6 months.
    (b)    If
    parent(s), guardian(s) or custodian(s) still fail to appear within the 6 month period, the order shall become final following a dispositional hearing.
    (c)    If parent(s), guardian(s) or custodian(s) appears within the 6 month period, the Court shall hold an adjudicatory and dispositional hearing.

  12. Change of Placement.  After the initial placement, the Prosecutor shall provide written notification of any modification in placement to the court.

  13. Hearing Consolidation.49a  At any time the court may consolidate matters for hearing or hear them in phases provided that any consolidation is consistent with time requirements. However, the court may not consolidate the adjudicatory hearing with other proceedings.

  14. Adjudicatory Hearing. The following shall occur:50
    (a)    Hearings shall be closed to the public.
    (b)    If admitted, make findings on the validity of the admission.
    (c)    If denied, d
    etermine whether child is dependent by clear and convincing evidence, otherwise dismiss and order child returned.

    (d)    If Court finds dependency,  the Court shall
             (i)    Schedule a disposition hearing.
             (ii)    Order predisposition study and report from Division.
    51
             (iii)    Specific written findings required.

  15. Predispositional Study and Report shall be ordered from the Division who shall submit the report to court and all parties no later than 5 days prior to dispositional hearing, excluding weekends and court holidays.52 If it appears unlikely the unity of the family cannot be restored, the plan of care shall set forth alternative permanency planning. Care and Rehabilitation Determination.

  16. Reasonable Efforts Determination. Within 60 days of the child's removal, the Court shall make a determination:
    (a)   
    That reasonable efforts to preserve or reunite the family have been offered to the family, including a determination that reunification should be facilitated by referring the family to the Peacemaking Program; or53
    (b)    That reasonable efforts are futile due to reasons supported by specific written findings; or
    54
    (c)    That reasonable efforts are futile because the parent(s), guardian(s) or custodian(s) has subjected the child to aggravated circumstances as specifically set forth in the determination.
    55

  17. Dispositional Hearing. The following shall occur:56
    (a)    Hearing shall commence no later than 30 calendar days from the adjudicatory hearing.
    (b)    Consider all evidence relevant and material to disposition, even those not otherwise admissible.
    (c)    May continue no more than 10 days to receive reports and other evidence.
    (d)    Issue order for temporary custody upon continuance, if appropriate.
    (e)    If continued removal is ordered, the Court shall make a detailed and supported finding that return of the child would be contrary to the welfare of the child and that reasonable efforts have been made to prevent continued removal of the child. In addition, the Court’s order shall provide that the parent(s), guardian(s), custodian(s) or other family members shall have reasonable rights of visitation unless the Court finds that the best interests of the child preclude any such visitation.

  18. Review and Permanency Review Hearings
    (a)    Review hearings shall be held within 6 months from date of removal or judicial finding of abuse and/or neglect and every 6 months thereafter.57
    (b)    Permanency review hearings shall be held every 6 months after first review hearing or within 12 months of a child entering foster care.58
    (c)    The first review and permanency hearing shall be conducted by the Court. Subsequent review and permanency hearings may be referred to a Regional Children’s Review Board.59
    (d)    If the Division plan does not include either reunification, adoption, guardianship or placement with a fit and willing relative, the Court shall determine whether compelling reasons exist to find that these placements are not in the best interest of the child.60
    (e)    The Court shall enter written factual findings and conclusions of law supporting its judgment.
    61

  19. Regional Children's Review Board.
    (a)    The Court shall contact the Division for case assignment to an appropriate Regional Children’s Review Board for review of lo
    ng-term out-of-home placements62
    (b)    The following shall occur:63
             (i)   
    Parties objecting to the Board's periodic case review(s) may request court hearing.
             (ii)    Board shall submit findings and recommendations to the Court.
             (iii)    The Board shall encourage and facilitate the timely return of children to his/her parent(s), guardian(s) or custodian(s), or encourage permanent placement otherwise.

V.  TERMINATION OF PARENT-CHILD RELATIONSHIP
RULE 17 Petition; Who May File.
17(a) Contents.  The petition, voluntary or involuntary, shall contain a statement that severance of the parent-child relationship is necessary as a last resort, and that all other options have been pursued, including customary adoptions.
17(b) Involuntary.  A petition for a court order to terminate the parent-child relationship may be filed by any person or agency with a legitimate interest in the welfare of the child, or the Prosecutor based on grounds set forth at 9 N.N.C. §  1402(A).
17(c) Voluntary Relinquishment.  A petition for a court order to terminate parent-child relationship rights may be filed by any person or agency with a legitimate interest in the welfare of the child, shall be filed by the Navajo Nation, an a privately-licensed agency, or Prosecutor or a person seeking custody of the child if the parent(s) has voluntarily relinquished rights to the child or consented to adoption no less than 10 calendar days after the child's birth.64
17(d) Joinder.  Prosecutor may file or seek to join as a party where child is less than 15 years old and has been in foster care 15 out of the last 22 months; has been adjudicated an abandoned infant; or within 60 calendar days of judicial reasonable efforts determination.65
RULE 18 Evidence.
Clear and convincing proof is required justifying termination of the parent-child relationship
66
Evidence shall include the following:
(a)    There has been a judicial determination that r
easonable efforts were made to reunify or preserve the family, or reasonable efforts were futile;
(b)   
All other options have been pursued, including customary adoption, before severance of the parent-child relationship was sought as a last resort;
67
(c)    Termination is necessary in the best interest of the child and for the child's health and safety; and
(d)    Where reasonable efforts to reunify the family are required, the Division has provided to the family, consistent with the time period in the case plan, services that the Division deems necessary for the safe return of the child to the home.
68
RULE 19 Customary Adoption. The ABBA provides for customary adoption but provides no definition. The Supreme Court has defined customary adoption as "a traditional tribal practice recognized by the community which gives a child a permanent parent-child relationship with someone other than the child’s birth parent, without termination of parental rights . . . In essence, the child gains parent(s) in a customary adoption, and does not lose the parents he or she already has, nor does the child lose his or her clan and clan relatives. The parties may seek to formalize the primary and secondary parental responsibilities, ideally through peacemaking, before the court issues a customary adoption order."69
RULE 20 Right to Counsel.  The ABBA provides that "the Court shall appoint legal counsel for the parent(s)," which appears to be mandatory.70
RULE 20 Notice.71
(a)    All notices shall be sent to the child’s parent(s), the Division, the agency, the legal custodian(s), and the caretaker of the child.
(b)    Final Hearing may proceed upon sufficient showing that reasonable efforts as to notice were made.
(c)    Notice by certified mail of the Final Hearing shall be sufficient verification to deem notice complete.
RULE 21 Waiver.72
(a)    A parent may waive service of process in a voluntary proceeding in writing notarized or attested to by two credible witnesses eighteen (18) years of age or older.
(b)    A parent properly served may waive notice and appearance in open court; or in writing, notarized or attested to by two credible witnesses who are eighteen (18) years of age or older.
(c)    Contents of Waiver.  The waiver shall contain a statement that the parent understands that he or she has the option of customary adoption, in which the child may establish a permanent parent-child relationship with someone other than the child’s birth parent, without termination of parental rights.
RULE 22 Order of Proceedings.
The following shall be the order in which a termination of parent-child relationship shall proceed:
  1. Petition Filed.

  2. Summons issued; Service.

  3. Initial Hearing. The court shall conduct an initial hearing within 10 days of service of the petition.  At the initial hearing, the court shall:
    (a)   
    Advise the parents of their rights;
    (b)    Appoint counsel for the parents
    and/or child, if appropriate in accordance with pro bono rules;
    (c)    Appoint a guardian ad litem for the child, if necessary;
    (d)    Ascertain that all options, including customary adoption, have been considered.73
    (e)    Determine the status of the child;
    (f)    Order investigative report and any additional studies74 necessary studies, examination and reports;
    (g)    Set a status hearing or final hearing within sixty (60) days;
    (h)    Make temporary orders pending the next hearing.

  4. Motion Hearing for Temporary Custody shall be scheduled not less than 15 calendar days from the date of the filing of the petition, unless the hearing has been waived.75

  5. Temporary Custody Order with specific findings.76

  6. Final Petition Hearing not to exceed 6 months from the date of filing upon completion of service.77

  7. Status Conference shall be held  if there has been no service of process within 6 months from the date of filing for reasons why the petition should not be dismissed.78

  8. Termination of Parental Rights Decree Final Order.  The final order shall terminate the parent-child relationship.  If the parent-child relationship is terminated the court shall make additional orders for temporary custody.

  9. Dismissal. Where the Court does not order termination of the parent-child relationship, it shall dismiss the petition, unless the Court finds that in the best interests of the child it is necessary to issue an order for the petitioner to file the appropriate pleadings to address other permanency options for the child.79

  10. Review Hearings. If no adoption decree has been issued within 6 months, the Court shall conduct a review hearing and thereafter every 6 months until an adoption decree is issued.80

  11. Adoption shall not be granted until all appeal rights pertaining to the termination of parental rights have run. Termination of parental rights is not necessary in customary adoptions and may not be forced upon natural parents seeking to file an adoption proceeding unless termination of parental rights is warranted under the relevant provisions of the ABBA.81 There shall be a termination of parental rights proceeding prior to any adoption proceeding, even where consent is given.

V.      INDIAN CHILD WELFARE ACT
RULE 23 Commentary.
The I.C.W.A. applies to State Court proceedings.  Under the Act, the Navajo Nation may intervene to transfer jurisdiction or dismiss the State Court proceeding.  If the case is dismissed at the State Court level, the Navajo Nation may initiate any appropriate action I the Family Court pursuant to the ABBA Code.  If the case is transferred, the Navajo Nation shall petition the Family Court to accept jurisdictional.
RULE 24  Transfer.
24(a) Transfer Upon Order of Navajo Court.  Cases involving Navajo children, which originate in a state court may be transferred to a Navajo court upon an order from the Navajo court accepting jurisdiction and the transfer of the case.
24(b) Initiation.  A transfer is initiated by the Navajo Nation filing a petition for the court to accept jurisdiction and transfer of the case.
24(c) Contents of Petition.  A petition to accept jurisdiction shall contain the following.
(1)  The name, birth date, residence and address of the child;
(2)  Census number, if any, of the child;
(3)  Name and address of the court in which the state action is pending;
(4)  Certified copies of the petition and any amendments, and the most recent order filed in the pending State action;
(5)  A concise statement of the jurisdiction of the Navajo courts;
(6)  The names and addresses of parents, guardians, custodians or foster parents of the child; names and addresses of persons seeking guardianship, custody, adoption or possession of the child; the name and address of any agency or department seeking either a disposition or to participate in the disposition of the child;
(7)  The name, address and relationship to the child of the person, agency or department having possession of the child;
(8)  If any matters required to be set forth by this Rule are no[t] known, the petition shall contain the statement that they are not known
RULE 25 Temporary Custody.
Temporary custody and the appointment of a temporary custodian may be requested at the time the petition for transfer is filed.
RULE 26 Summons and Hearing.
26(a) Hearing on Petition.  Upon the filing of the petition with the court a hearing date on the petition shall be set no earlier than fifteen (15) days and no later than thirty (30) days from the date of filing.
26(b) A summons accompanied with a copy of the petition and the notice of hearing shall be served on all persons, agencies and departments identified in the petition in accordance with the N.N.R.C.P. within the time frame set forth in subsection (A) above.
RULE 27 Jurisdictional Hearing.
27(a) At the hearing on the petition to accept jurisdiction and transfer of the case, the court shall hear evidence on the following:
(1)  The nature of the proceedings in state court;
(2)  The jurisdiction of the Navajo courts;
(3)  The location and circumstances of the child;
(4)  The need for temporary custody;
(5)  The qualifications of the proposed temporary custodian.
RULE 28 Order.
  The order of the court upon the petition for acceptance of jurisdiction shall deny or accept jurisdiction.
28(a) Denial.  An order denying jurisdiction and transfer of the case shall state the reasons.
28(b) Acceptance.  An order accepting jurisdiction and transfer of the case shall order the Navajo Nation to file notice with the court upon the state court dismissing the case and to effectuate the transfer of case documents.
28(c) If the pending State court action is dismissed, the Navajo Nation shall initiate an original proceeding under the ABBA.
RULE 29 Review Hearing.
29(a) Review Hearing Required.  Upon the court being notified of the state court order of transfer, a review hearing shall be set.
29(b) Notice of Hearing.  Notice of the date and time of the new review hearing shall be given to all necessary parties as identified under these Rules or as designated by the court.
29(c) Proceedings at Hearing.  At the hearing the court shall:
(1)  Inform all parties that the matter will now proceed under the Navajo Nation Álchíní Bi Beehaz’áannii Act;
(2)  Determine the nature of the proceedings;
(3)  Identify the proper party to file a petition pursuant to the ABBA;
(4)  Set a date no more than thirty (30) days from the date of the review hearing for the filing of the petition;
(5)  Review the temporary custody and placement of the child;
(6)  Establish a schedule for the Navajo Nation Justice Department attorneys to withdraw from the case and the Prosecutor to appear as counsel for the Navajo Nation.
RULE 25 Guardianship; Continuing Jurisdiction.
RULE 30 Voluntary Placement Within Indian Child Welfare Act, 25 U.S.C. § 1901
30(a) Wardship Automatic.  Any Navajo child who is domiciled or resides in Navajo Indian country automatically becomes a ward of the court upon voluntarily being placed outside Navajo Indian country.
30(b) Filing Consent.  The consent of the parents, guardian or custodian to the placement of the child shall be filed with the court.
30(c) Contents of Consent.  The consent shall indicate with whom the child is being placed and the location of the child outside the Navajo Nation.
30(d) Annual Review.  The court shall require the parents, guardian or custodian to update the consent annually.
Footnotes
  1. Resolution CO-38-11 (October 31, 2011) enacting the Navajo Nation Álchíní Bi Beehaz’áannii Act of 2011.
    1a   9 N.N.C. § 1101(E)
    1b  9 N.N.C. § 1201(C)(1)(a) and (b)
  2. Resolution LOCJY-06-12 (July 30, 2012) approving the Peacemaking Program Plan of Operations
  3. 9 N.N.C. § 1307
  4. 9 N.N.C. § 1306(C)
  5. 9 N.N.C. § 1305
  6. 9 N.N.C. § 1310(B)
  7. 9 N.N.C. § 1311
  8. 9 N.N.C. § 1309(C)
  9. 9 N.N.C. § 1308(A)
  10. 9 N.N.C. § 1312
  11. 9 N.N.C. § 1313
  12. 9 N.N.C. § 1313(E)
  13. 9 N.N.C. § 1314(A)
  14. 9 N.N.C. § 1310(E)
  15. 9 N.N.C. § 1310(E)
  16. 9 N.N.C. § 1201
  17. 9 N.N.C. § 1207(A)(1)
  18. 9 N.N.C. § 1203(C)
  19. 9 N.N.C. § 1204(A)
  20. 9 N.N.C. § 1207(A)(2)
  21. 9 N.N.C. § 1206(D)
  22. 9 N.N.C. § 1207
  23. 9 N.N.C. § 1205(B)
  24. 9 N.N.C. § 1209
  25. 9 N.N.C. § 1201(C)(1)(b)
  26. 9 N.N.C. § 1203(B)
  27. 9 N.N.C. § 1208
  28. 9 N.N.C. § 1210(A)
  29. 9 N.N.C. § 1210
  30. 9 N.N.C. § 1211(A)
  31. 9 N.N.C. § 1211(A)
  32. 9 N.N.C. § 1211(C)
  33. 9 N.N.C. § 1212
  34. 9 N.N.C. § 1213(A)
  35. 9 N.N.C. § 1212(B)
  36. 9 N.N.C. § 1204(B)
  37. 9 N.N.C. § 1204(B)
    37A  9 N.N.C. 1119(A)
  38. 9 N.N.C. § 1116
    38a  9 N.N.C. §
    1102(C)
  39. 9 N.N.C. § 1102(D), 1103(B)
  40. 9 N.N.C. § 1102(E)
  41. 9 N.N.C. § 1103(A)
  42. 9 N.N.C. § 1104(A)
  43. 9 N.N.C. § 1104(A)
  44. 9 N.N.C. § 1106(A)
  45. 9 N.N.C. § 1108
  46. 9 N.N.C. § 1101(E)
  47. 9 N.N.C. § 1107
  48. 9 N.N.C. § 1110
  49. 9 N.N.C. § 1119
    49a  9 N.N.C. § 1111(A)
  50. 9 N.N.C. § 1111
  51. 9 N.N.C. § 1112
  52. 9 N.N.C. § 1112(C)
  53. 9 N.N.C. § 1113(F)
  54. 9 N.N.C. § 1113(G)
  55. 9 N.N.C. § 1113(G)
  56. 9 N.N.C. § 1113
  57. 9 N.N.C. § 1115(A)
  58. 9 N.N.C. § 1115(B)
  59. 9 N.N.C. § 1115(D)
  60. 9 N.N.C. § 1115(E)
  61. 9 N.N.C. § 1115(E)
  62. 9 N.N.C. § 1114(C)
  63. 9 N.N.C. § 1114
  64. 9 N.N.C. § 1403
  65. 9 N.N.C. § 1404(B)
  66. 9 N.N.C. § 1402(C)
  67. 9 N.N.C. § 1401 and James v. Window Rock District Court, No. SC-CV-06-12,, slip op. at 11 (Nav. Sup. Ct. October 8, 2012)
  68. 9 N.N.C. § 1404(C)(3)
  69. James v. Window Rock District Court, slip op. at 12
  70. 9 N.N.C. § 1402(D)
  71. 9 N.N.C. § 1405(B)
  72. 9 N.N.C. § 1405(C)
  73. James v. Window Rock District Court, slip op. at 11
  74. 9 N.N.C. § 1406
  75. 9 N.N.C. § 1407(B)(3)
  76. 9 N.N.C. § 1408(A)
  77. 9 N.N.C. § 1407(C)(1)
  78. 9 N.N.C. § 1407(C)(1)
  79. 9 N.N.C. § 1408(C)
  80. 9 N.N.C. § 1408(B)(1)(c)
  81. James v. Window Rock District Court, slip op. at 11