Chapter 5.45
PROTECTION ORDER

Sections:

5.45.010    Petition for protection.

5.45.020    Emergency protection order.

5.45.030    Probable cause hearing.

5.45.040    Time and notice of hearing.

5.45.050    Appointment of guardian ad litem.

5.45.060    Evidence and burden of proof.

5.45.070    Agreed order.

5.45.080    Enforcement of restraint provisions.

5.45.010 Petition for protection.

A. The Tribe, in its discretion, may file a petition for a protection order on behalf of an elder or vulnerable adult after completion of an investigation that provides support for a finding of probable cause that the elder or vulnerable adult is being abused, neglected, or exploited.

B. An elder, vulnerable adult, protective payee or guardian for an elder or vulnerable adult, caretaker, or immediate family member of an elder or vulnerable adult may file a petition if there is evidence to support a finding of probable cause that the elder or vulnerable adult is being abused, neglected, or exploited.

C. The petition shall include:

1. The name, date of birth, Tribal enrollment status, domicile, and mailing address of the alleged elder or vulnerable adult;

2. The facts establishing the Court’s jurisdiction; and

3. A detailed statement of the facts and reasons which support the allegation that the adult is an elder or vulnerable adult in need of protective services, and as to:

a. The outcomes of any investigations of allegations of abuse or neglect of the elder or vulnerable adult;

b. Services offered or provided to the elder or vulnerable adult or his or her family or caretaker intended to ameliorate the need for protective services;

c. The outcome of any family or service provider meetings in regard to services offered to the elder or vulnerable adult;

d. Information on the elder’s or vulnerable adult’s capacity, to include, where possible, a letter signed by a physician or primary care provider;

e. Names and mailing addresses known to the petitioner of the alleged elder’s or vulnerable adult’s spouse or significant other, adult children, and caretakers;

f. Names, dates of birth, and addresses of any persons requested in the petition to be restrained from contact with the alleged elder or vulnerable adult, their place of residence, or from use of their property; and

g. Whether an emergency exists such that an ex parte emergency order pursuant to CTC 5.45.020 is necessary pending a fact-finding hearing on the petition. [Res. 2020-1.]

5.45.020 Emergency protection order.

A. Where the petition so requests, the Court shall issue an ex parte emergency protection order pending further proceedings where the Court finds probable cause to believe that:

1. The elder or vulnerable adult is at risk of immediate and irreparable injury or harm;

2. The elder or vulnerable adult is incapacitated and cannot consent to protective services;

3. No one is authorized by law or Court order to consent on the elder’s or vulnerable adult’s behalf to necessary medical care on an emergent basis;

4. An emergency exists; and

5. There is no less restrictive alternative available to protect the elder’s or vulnerable adult’s health, safety, and welfare.

B. An emergency protection order shall:

1. Provide only those services which will remove the emergency;

2. Allow protective services only if the evidence shows they are necessary;

3. Designate the individuals or service providers required to implement the order;

4. Set out the specific emergency services to be provided to the elder or vulnerable adult to remove the conditions creating the emergency, which may include:

a. Restraining a person alleged to have neglected, abused, or exploited the elder or vulnerable adult from in-person, third-party, or electronic contact with the elder or vulnerable adult, or from coming within a specified distance from the elder’s or vulnerable adult’s home, place of work, school, or from the Tribal elders’ center;

b. Restraining a person from neglecting, abusing, or exploiting the elder or vulnerable adult;

c. Freezing bank accounts and assets, putting a hold on transactions, or taking other action necessary to protect the vulnerable adult’s or elder’s property and finances pending further investigation;

d. Requiring a person alleged to have committed financial exploitation to turn over any and all financial records in regard to the elder or vulnerable adult, and to immediately refrain from any further involvement in the elder’s or vulnerable adult’s finances;

e. Ordering the guardian, power of attorney, Social Services, or other appropriate person or program to run a check on the elder’s or vulnerable adult’s credit, and to lock or freeze the elder’s or vulnerable adult’s credit with the major credit bureaus;

f. Putting in place a temporary service plan to preserve and protect the elder’s or alleged vulnerable adult’s health, safety, and welfare; or

g. Ordering law enforcement or Social Services to remove the elder or vulnerable adult from their home, when no other alternative exists to safeguard their health, safety, and welfare, and where remaining in the home places the elder or vulnerable adult at imminent risk of serious harm.

C. Emergency orders shall be narrowly tailored to address the particular allegations stated in the petition. [Res. 2020-1.]

5.45.030 Probable cause hearing.

A. Where the Court issues an emergency protection order resulting in the elder’s or vulnerable adult’s removal from their home or for involuntary residential treatment or care, a probable cause hearing shall be held within five days. Otherwise a probable cause hearing shall be held within 15 days.

B. Notice of the probable cause hearing shall be given to the petitioner, the elder or vulnerable adult and to his or her legal guardian or power of attorney, if any, and any person subject to restraint provisions at least 24 hours before the time of the hearing; where notice cannot be provided, the hearing shall be continued as the Court deems necessary to allow additional time for notice to be given.

C. Notice provided to the elder or alleged vulnerable adult shall include the following statement, in 12 point or larger font:

IMPORTANT NOTICE. A petition for your protection has been filed in Chehalis Tribal Court. You have the right to participate in hearings on the petition. If the court finds you are in need of protection, the court may enter a protection plan for you. You have the right to legal representation in this matter. You have the right to be present in court and to testify at a hearing to decide whether or not you are in need of protection.

D. The Court at the probable cause hearing shall consider information provided by parties, and shall make determinations as to the continued necessity of the emergency protection order. The Court at its discretion may continue or modify the emergency protection order. The Court shall also consider whether there is any less restrictive alternative to provide for the elder’s or alleged vulnerable adult’s protection.

E. Where the elder or alleged vulnerable adult has been removed from his or her home pursuant to the emergency protection order, the Court shall enter orders for visitation between the elder or alleged vulnerable adult and his or her immediate family, where in the best interest of the elder or alleged vulnerable adult, and where doing so will not put him or her at further risk of harm.

F. The Court shall set a fact-finding hearing within 35 days of the conclusion of the probable cause hearing and shall provide notice as set forth at CTC 5.45.040. [Res. 2020-1.]

5.45.040 Time and notice of hearing.

A. Where an emergency protection order is not issued pursuant to CTC 5.45.020, the fact-finding hearing shall take place within 35 days of the date the petition is filed.

B. Notice of the hearing shall be provided to the elder or vulnerable adult, his or her guardian, protective payee, or power of attorney, if any; Social Services; any person against whom restraint provisions are recommended; any person from whom restitution is requested; the elder’s or vulnerable adult’s caregiver, parents, spouse, significant other, and children, where addresses for such can be obtained.

C. The Court Clerk shall provide notice of the hearing to all parties at least 10 days before the hearing date. The notice shall include:

1. The date, time and place of the hearing;

2. A copy of the petition; provided, that on a finding and order of the Court that providing a complete copy of the petition to a party could put the elder’s or vulnerable adult’s health, safety, welfare, property, or finances at risk of harm, a copy of the petition shall not be provided to the party until a hearing has occurred and the Court has entered further findings in regard to who shall be provided a copy of the petition. The petitioner may request the Court to enter such an order ex parte, at the same time the petition is filed; and

3. On notice provided to the elder or vulnerable adult, the following statement, in 12 point or larger font:

IMPORTANT NOTICE. A petition for your protection has been filed in Chehalis Tribal Court. You have the right to participate in hearings on the petition. If the court finds you are in need of protection, the court may enter a protection or care plan for you. You have the right to legal representation in this matter. This will be provided at no cost to you, if you are not able to pay for an attorney. You have the right to be present in court and to testify at a hearing to decide whether or not you are in need of protection.

[Res. 2020-1.]

5.45.050 Appointment of guardian ad litem.

The Court may, if it deems necessary, appoint a guardian ad litem to represent the interests of an elder or vulnerable adult in protection proceedings. [Res. 2020-1.]

5.45.060 Evidence and burden of proof.

The burden of proof at a fact-finding hearing shall be clear and convincing evidence. The rules of evidence shall be the same in a fact-finding hearing as those which apply to other civil actions before the Tribal Court. If the allegations of the petition are proven (which may include, in part, reliable hearsay evidence), and the Court finds the elder or vulnerable adult to be in need of protection, the Court shall set the matter for a protection plan hearing. The Court may also maintain any emergency protection plan pending the protection plan hearing. [Res. 2020-1.]

5.45.070 Agreed order.

A. The parties to a fact-finding hearing may agree to a proposed order, which resolves some or all of the issues of the case, where the Court has determined that the elder or vulnerable adult has the capacity to sufficiently understand, make, and communicate responsible decisions about himself or herself.

B. A family meeting or other informal mediation process may be used to help reach an agreement.

C. Before deciding whether to approve the agreed order, the judge may hold an in-chambers, ex parte discussion with the elder or vulnerable adult or any person who will be subject to the order to:

1. Explain the proposed agreed order in detail;

2. Ensure that the person’s consent to the proposed order is not the result of coercion, threat, duress, fraud, over-reaching, or improper promise on the part of any person;

3. Explain the person’s right to a spokesperson/counsel at no expense to themselves;

4. Explain that the Tribe has the burden of proving the allegations in the petition and that the person does not have to agree to the proposed order; and

5. Explain that once the person agrees to the proposed order and it is signed and entered by the Court, the person must adhere to the order.

D. The in-chambers conversation need not be recorded.

E. If the person subject to the in-chambers conversation wants a friend, family member, or other person to be present, the judge may in his or her discretion allow it after first speaking alone with him or her.

F. If the Court finds that any consent was the result of fraud or duress, or that the elder or vulnerable adult lacked capacity to enter into the agreed order, the agreed order shall be vacated; provided, that the Court may in its discretion allow for the agreed order to remain in place pending further proceedings where necessary for the protection of the elder’s or vulnerable adult’s health, welfare, or resources. [Res. 2020-1.]

5.45.080 Enforcement of restraint provisions.

A. Any person violating a restraint provision of an order issued pursuant to this section or Chapter 5.50 CTC, and having actual notice of the order, shall be subject to arrest and/or prosecution. For these purposes such an order shall be considered:

1. A protection order pursuant to CTC 4.65.020 where the person subject to restraint provisions is a family or household member, or an intimate partner, as defined by CTC 4.60.075.

2. An anti-harassment order pursuant to CTC 4.95.250 where the person subject to restraint provisions is not a family or household member, or an intimate partner, as defined by CTC 4.60.075.

B. All orders entered pursuant to this chapter which contain restraint provisions shall be afforded full faith and credit pursuant to Chapter 4.90 CTC. [Res. 2020-1.]