Or. Admin. Code § 413-115-0000

Current through Register Vol. 63, No. 10, October 1, 2024

Section 413-115-0000 - Definitions

Unless the context indicates otherwise, the following definitions apply to OAR chapter 413, division 115.

(1) "Active efforts" means affirmative, active, proactive, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with their family. Active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan.

(2) "Adoption" means a legal or administrative process that establishes a permanent legal parent-child relationship between a child and an adult who is not already the child's legal parent and terminates the legal parent-child relationship between the adopted child and any former parent. For Tribal customary adoptions 413-115-0135.

(3) "Adoptive placement" means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

(4) "Bureau of Indian Affairs (BIA)" means the U.S. Department of the Interior, Bureau of Indian Affairs.

(5) "Child-custody proceeding" includes any action, other than an emergency proceeding, that may culminate in one of the following outcomes: a foster care placement, durable or permanent guardianship, the termination of parental rights, a pre-adoptive placement, or an adoptive placement. An action that may culminate in one of these four outcomes is considered a separate "child-custody proceeding" from an action that may culminate in a different one of these four outcomes. There may be several child-custody proceedings involving any given Indian child. Within each "child-custody proceeding", there may be several hearings. If an Indian child is placed in foster care or another out-of-home placement as a result of a status offense, that status offense proceeding is a "child-custody proceeding".

(6) "Continued custody" means physical custody or legal custody of the Indian child under any applicable tribal law, tribal custom or state law. An Indian child's parent has continued custody of the Indian child if the parent currently has, or previously had, custody of the Indian child. The following individuals are presumed to have continued custody of an Indian child:

(a) The Indian child's biological mother.

(b) A man who is married to the Indian child's biological mother.

(c) A man whose parentage has been acknowledged or established as ORS 109.

(7) "Child Protective Services (CPS) Assessment" means an investigation into a report of child abuse pursuant to ORS 419B.020 that includes activities and interventions to identify and analyze threats to child safety, determine if there is reasonable cause to believe childabuse occurred, and assure child safety through protective action plans, initial safety plans, or ongoing safety planning.

(8) "Cultural continuity agreements" means a written agreement developed between the Indian child'stribe and proposed guardians in guardianship proceedings or proposed adoptive placements in adoption proceedings, with the Department's assistance, that ensures ongoing cultural connections between the Indian child and the Indian child's tribe and describes how the Indian child's cultural needs, including the value to the Indian child of establishing, developing or maintaining a political, cultural, social and spiritual relationship with the Indian child's tribe, tribal community and extended family, will be met on an ongoing basis.

(9) "Department" means the Oregon Department of Human Services, Child Welfare.

(10) "Domicile" means:

(a) For a parent or Indian custodian, the place at which a person has been physically present, and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.

(b) For an Indian child, the domicile of the Indian child's parents or Indian custodian or guardian. In the case of an Indian child whose parents are not married to each other, the domicile of the Indian child's custodial parent.

(11) "Emergency proceeding" means any court action that involves the emergency removal or emergency placement of an Indian child, including removal under ORS 419B.150, with or without a protective custody order, or a shelter care proceeding under ORS 419B.185.

(12) "Emergency removal" means a removal of an Indian child that occurs because removal is necessary to prevent imminent physical damage or harm to the Indian child.

(13) "Entity" means any organization or agency including, but not limited to a private child placing agency, that is separate and independent of the Department, performs functions pursuant to a contract, subcontract or agreement with the Department, and receives federal funds.

(14) "Extended family member" has the meaning given that term by the law or custom of an Indian child's tribe. If the meaning of "extended family member" cannot be determined, by law or custom of the Indian child's tribe "extended family member" means a person who has attained 18 years of age and who is the Indian child's grandparent, aunt, uncle, brother, sister, sister-in-law, brother-in-law, niece, nephew, first cousin, second cousin, stepparent or, as determined by the Indian child's tribe, clan or band member.

(15) "Foster care placement" means any action removing an Indian child from their parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the Indian child returned upon demand, but where parental rights have not been terminated.

(16) "Grandparent" for purposes of notification, visitation, contact, or communication ordered by the court under ORS 419.B876 means the legal parent of the child or young adult's legal parent, regardless of whether the parental rights of the child or young adult's legal parent have been terminated under ORS 419B.500 to 419B.524.

(17) "Guardian" means an individual who has been granted guardianship of a child through a judgment of the court.

(18) "ICWA" or "The Act" means the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901- 63.

(19) "Imminent physical damage or harm" means impending and certain physical harm will occur to the Indian child unless a safety plan can be put in place or an emergency removal is initiated.

(20) "Indian" means a person who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as defined in section 7 of the Alaska Native Claims Settlement Act (43 U.S.C. 1606).

(21) "Indian child" means any unmarried person who has not attained 18 years of age and:

(a) Is a member or citizen of an Indian tribe; or

(b) Is eligible for membership or citizenship in an Indian tribe and is the biological child of a member or citizen of an Indian tribe.

(22) "Indian custodian" means any Indian, other than the Indian child's parent, who has custody of an Indian child under applicable tribal law or custom or under applicable state law, or to whom temporary physical care, custody, and control has been transferred by the Indian child's parent.

(23) "Indian foster home" means a substitute care placement in which at least one of the resource parents is an Indian person, who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as defined in section 7 of the Alaska Native Claims Settlement Act (43 U.S.C. 1606), and which is licensed by the Department, or licensed by an Indian tribe and approved by the Department.

(24) "Indian organization" means any group, association, partnership, corporation, or legal entity owned or controlled by Indians or a majority of whose members are Indians, such as an Indian Child Welfare Committee.

(25) "Indian tribe" or "tribe" means any Indian tribe, band, nation, or other organized group or community of Indians federally recognized as eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaska Native village as defined in 43 U.S.C. § 1602(c).

(26) "Initial safety plan" means a documented set of actions or interventions sufficient to protect a child or, if applicable, a young adult from an impending danger safety threat to allow for completion of the CPS assessment.

(27) "Involuntary proceeding" means a child-custody proceeding in which the parent does not consent of their free will to the foster-care, durable or permanent guardianship, pre-adoptive, or adoptive placement or termination of parental rights or in which the parent consents to the foster-care, pre-adoptive, or adoptive placement under threat of removal of the Indian child by a state court or agency.

(28) "Juvenile court" has the meaning given that term in ORS 419.004.

(29) "Member" or "membership" means a determination by an Indian tribe that a person is a member, enrolled or citizen in that Indian tribe.

(30) "Oregon Indian Child Welfare Act (ORICWA)" means the Oregon Indian Child Welfare Act.

(31) "Parent" means:

(a) A biological parent of an Indian child;

(b) An Indian who has lawfully adopted an Indian child, including adoptions made under tribal law or custom; or

(c) A father whose parentage has been acknowledged or established under ORS 109.

(32) "Party" or "parties" means parties to a proceeding, as described in ORS 419B.875.

(33) "Protective action plan" for the purposes of Division 115 only, means an immediate, same day, short-term plan, lasting a maximum of ten calendar days, sufficient to protect a child from imminent physical damage or harm without removing the Indian child from either parent or Indian custodian.

(34) "Qualified expert witness (QEW)" means a person who is qualified to testify regarding whether the Indian child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child's Tribe. A person may be designated by the Indian child's Tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child's Tribe.

(35) "Reason to Know." A court or person has reason to know that a child is an Indian child if:

(a) The person knows that the child is an Indian child,

(b) The court has found that the child is an Indian child or that there is reason to know that the child is an Indian child;

(c) Any individual present in the proceeding, officer of the court involved in the proceeding, Indian tribe, Indian organization or agency informs the court that the child is an Indian child;

(d) Any individual present in the proceeding, officer of the court involved in the proceeding, Indian tribe, Indian organization or agency informs the court that information has been discovered indicating that the child is an Indian child;

(e) The child indicates to the court that the child is an Indian child;

(f) The court is informed that the domicile or residence of the child, the child's parent or the child's Indian custodian is on a reservation or in an Alaska Native village;

(g) The court is informed that the child is or has been a ward of a tribal court;

(h) The court is informed that the child or the child's parent possesses an identification card or other record indicating membership in an Indian tribe;

(i) Testimony or documents presented to the court indicate in any way that the child may be an Indian child; or

(j) Any other indicia provided to the court, or within the court's knowledge, indicates that the child is an Indian child.

(36) "Reservation" means Indian country as defined in 18 U.S.C. § 1151, and any lands not covered under such section, title to which is either held by the United States in trust for the benefit of an Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.

(37) "Sibling" means one of two or more children or young adults who are related, or would be related but for a termination or other disruption of parental rights, in one of the following ways:

(a) By blood or adoption through a common parent;

(b) Through the marriage of the legal or biological parents of the children or young adults; or

(c) Through a legal or biological parent who is the registered domestic partner of the legal or biological parent of the children or young adults.

(38) "Status offense" means an offense that would not be considered criminal if committed by an adult; they are acts prohibited only because of a person's status as a minor (e.g., truancy, runaway, beyond control).

(39) "Substitute care" means the out-of-home placement of a child or young adult who is in the custody and care of the Department.

(40) "Substitute caregiver" means a relative resource parent, resource parent, or provider authorized to provide care to a child or young adult in the legal or physical custody of the Department.

(41) "Termination of parental rights" means any legal action which results in the termination of the legal rights and responsibilities of the parent.

(42) "Tribal Customary Adoption" means the adoption of an Indian child, by and through the tribal custom, traditions or law of the Indian child's tribe with the assistance of the Department, and which may be affected without the termination of parental rights.

(43) "Tribal Affairs Unit within the Director's Office" means designated staff who monitor Department policy and procedures for compliance with the ICWA and ORICWA, investigate complaints of non-compliance from tribes, provide consultation to caseworkers and Department staff regarding related law and administrative rules, and provide ICWA and ORICWA materials and training.

(44) "Tribal court" means the court which holds jurisdiction over Indian child-custody proceedings and that is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative or adjudicative body of a tribe that is vested with authority over child-custody proceedings.

(45) "Upon demand" means that the parent or Indian custodian can regain custody simply upon verbal request, without any formalities or contingencies.

(46) "Voluntary placement agreement" means a temporary, binding, written agreement between the Department and the parent or Indian custodian of a minor Indian child that does not transfer legal custody to the Department but that specifies, at a minimum, the legal status of the Indian child and the rights and obligations of the parent or Indian custodian, the Indian child and the Department while the Indian child is in placement.

Or. Admin. Code § 413-115-0000

CWP 2-2017(Temp), f. & cert. ef. 2-7-17 thru 8-5-17; CWP 9-2017, f. 8-5-17, cert. ef. 8/6/2017; CWP 123-2018, amend filed 12/12/2018, effective 12/12/2018; CWP 148-2020, temporary amend filed 12/31/2020, effective 1/1/2021 through 6/29/2021; CWP 16-2021, amend filed 06/29/2021, effective6/29/2021; CWP 32-2021, amend filed 12/30/2021, effective 1/1/2022

Statutory/Other Authority: ORS 418.005 & ORS 409.050

Statutes/Other Implemented: ORS 418.005 & ORS 418.625