13.65.130 Hearings.
(a) Notice Requirements. The following parties must be provided with notice of the filed petition and/or subsequent motion(s): proposed ward, immediate family members of the proposed ward, Yurok Tribe Health and Human Services, Yurok Office of Tribal Attorney, and any other department, agency, staff, or individual designated to generally receive notice by the Yurok Tribal Court or ordinance.
(b) Required Parties. The proposed ward named in the petition shall be present at all hearings, even when the proposed ward has legal representation, unless the person is incapacitated and unable to appear or the Court has otherwise waived the proposed ward’s appearance based upon declaration of proposed ward’s counsel. Proof of incapacitation must be filed with the petition for adult guardianship and be documented by a physician and/or medical records stating a factual basis explaining why the proposed ward is incapable of participating in the hearing. The Yurok Tribal Court may request additional supporting evidence of incapacitation.
(c) Absence of Proposed Ward. If the proposed ward cannot participate in the hearing(s), the Court may waive the appearance of the person if an attorney, advocate, or guardian ad litem will be present at every hearing on the merits of the petition on behalf of the proposed ward.
(d) Evidence. Any evidence offered must comport with Chapter 2.10 YTC, Yurok Tribal Court – Rules of Court. All material and relevant evidence that is reliable and trustworthy may be admitted and relied upon by the Court to the extent of its probative value, including hearsay contained in a written investigative report, provided that the preparer of the report is present and available to provide testimony. Further, the parties, including the elder and/or vulnerable adult, shall be afforded an opportunity to examine and controvert written reports and cross-examine any individual testimony presented. The Court may rely on conference telephone or other electronic devices that permit all those appearing or participating to hear and speak to each other.
(e) Hearing Process. At the hearing(s), the Yurok Tribal Court shall evaluate the merits of the petition and determine whether a guardianship is appropriate by taking such testimony and evidence any interested party wishes to present and any evidence requested by the Court. As part of this evaluation, the Yurok Tribal Court must order an investigation by the Yurok Health and Human Services Department, Court investigator, or other appropriate agency designated by Yurok law or the Court to evaluate the claims in the petition, evaluate the proposed ward, and gather any evidence needed for the hearing(s), as determined by the Court, including, but not necessarily limited to, the following:
(1) The Yurok Health and Human Services Department, Court investigator, or other appropriate Tribal agency designated by Yurok law or the Court to investigate the abuse of elders and vulnerable adults shall conduct an investigation and file a report with the Yurok Tribal Court detailing their findings and recommendations concerning the claims in the petition and the suitability of each proposed guardian(s). Prior to ruling on the petition for adult guardianship, the Court shall read and consider all reports submitted pursuant to this chapter.
(2) All reports authorized by this chapter are confidential and shall only be made available to persons who have been served in the proceedings or their attorneys and/or proposed service providers or service partners.
(3) The Court investigator or Tribal agency designated to investigate the potential guardianship shall serve all parties a copy of the confidential report as expeditiously as possible. For purpose of writing a report authorized by this chapter, the person making the investigation and report shall have access to the proposed ward’s school records, probation records, public and private social services records, oral or written summary of medical records, and psychological records prepared by any physician, psychologist, or psychiatrist who made or who is maintaining those records.
(4) The report shall include, but not be limited to, an investigation and discussion of all of the following:
(A) Social history, including education and employment, general financial status, history of criminal law proceedings, and history of any Yurok Tribal Court proceedings of the proposed guardian(s);
(B) If proposed ward is to live with proposed guardian(s), a criminal background check for each adult living in the home;
(C) Social history of the proposed ward, including, to the extent feasible, an assessment of any relevant identified needs of the proposed ward and the capability of the proposed guardian(s) to meet those needs through the proposed guardianship;
(D) The relationship of the proposed guardian(s) and proposed ward, including duration and character of relationship;
(f) Establishing the Guardianship. The Yurok Tribal Court may establish a guardianship at the conclusion of the hearing process if the petitioner proves by a preponderance of the evidence that:
(1) The proposed ward is unable to manage their own affairs at issue in the petition due to:
(A) Incapacitation;
(B) Impairing mental illness;
(C) Acute alcoholism, misuse of drugs, and/or abuse of drugs;
(D) Other impairing medical condition; and
(E) Abuse and/or neglect according to Chapter 11.05 YTC.
(2) The proposed ward lacks the ability to manage their own affairs at issue in the petition to such a degree that the person’s health, welfare, security, education, legal affairs, or financial security are threatened beyond that which is acceptable to a similarly situated member of the community;
(3) There are no less restrictive alternatives available to remedy the issue(s) identified in the evidence presented; and
(4) The type(s) of guardianship sought is appropriately tailored to the issue(s) identified. [Ord. 74 § 4013, adopted, 8/26/2021.]