Or. Admin. Code § 413-115-0070

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

Section 413-115-0070 - Emergency Removal and Return Upon Demand

(1) During a CPS assessment, the Department may place an Indian child into emergency protective custody, whether or not the Indian child's domicile or residence is on a reservation, and regardless of the jurisdiction held by the child's tribe, if the following criteria are met:

(a) The Indian child is not located on a reservation where the tribe has exclusive jurisdiction over child custody matters; and

(b) Removal is necessary to prevent imminent physical damage or harm to the Indian child.

(2) The Department cannot develop a protective action plan under OAR 413-015-0432 in which the Indian child remains with either parent or IndianCustodian, or an in-home initial safety plan per the requirements of OAR 413-015-0437, meeting the requirements of OAR 413-015-0432 to ensure child safety.

(3) If there is reason to know the child may be an Indian child, and in order to determine if the tribe has exclusive jurisdiction, Department staff must immediately inquire to determine weather:

(a) The child is a resident of or is domiciled on a reservation but is temporarily located off of the reservation.

(b) The child is a ward of the Tribal court.

(c) There is a Tribal-State Agreement addressing default jurisdiction.

(4) When the Department is taking an Indian child into protective custody in an emergency removal, the Department must make a good faith effort to determine whether there is reason to know that the child is an Indianchild. If the Department has not already determined that the child is an Indian child the Department's good faith effort, must include compliance with OAR 413-115-0040 and by consultation with:

(a) The child;

(b) The child's parent or parents;

(c) Any person having custody of the child or with whom the child resides;

(d)Extended family members of the child;

(e) Any other person who may reasonably be expected to have information regarding the child's membership or eligibility for membership in an Indian tribe; and

(f) Any Indian tribe of which the child may be a member or of which the child may be eligible for membership.

(5) When taking emergency protective custody of an Indian child, the Department must contact by telephone, electronic mail, facsimile or other means of immediate communication any tribe of which the Indian child is or may be a member to determine the Indian child's affiliation. When emergency removal is necessary, the Department must consult with the tribe.

(6) When taking emergency protective custody of an Indian child, the Department must notify the Indian child's tribe(s) of the basis for the child's removal, the time, date and place of the initial hearing, and a statement that the tribe has the right to participate in the proceeding as a party or in an advisory capacity under ORS 419B.875.

(7) If there is reason to know the child is an Indian child, active efforts must be made to place the Indian child during emergency protective custody in a setting which follows the placement priorities established by the tribe, Tribal-State Agreement or, OR ICWA (as set forth in OAR 413-115-0090).

(8) If there is reason to know the child is an Indian child, and the child is placed in emergency protective custody the Department must comply with the following:

(a) Treat the child as an Indian child.

(b) Complete and document all practicable actions to confirm whether the child is an Indian child under OAR 413-115-0030(2).

(c) Immediately notify the Indian child 's tribe pursuant to OAR 413-115-0050, the parents, the Indian custodian and, if known, the grandparents of the removal of theIndian child and document the notification in the Department's information system.

(d) Comply with OAR 413-115-0120.

(e) Continually assess whether the removal and placement continues to be necessary to prevent imminent physical damage or harm to the Indian child.

(f) Submit a report, declaration or testimony on the record that the Department used due diligence to identify and work with all of the tribes of which there is reason to know the child maybe a member or be eligible for membership to verify whether:

(A) The child is a member; or

(B) The child is eligible for membership and is the biological child of a member.

(9) Emergency protective custody can be terminated by one or more of the following actions:

(a) Initiation of a child-custody proceeding subject to the provisions of the ORICWA.

(b) Transfer of the case to the jurisdiction of the appropriate tribe.

(c) Returning theIndian child to the parent or Indian custodian.

(10) If an Indian child is removed pursuant to an emergency removal and cannot be returned to the parent or Indian custodian and the case will not proceed immediately in tribal court under ORS 419B the Department must request that the court hold a hearing within 24 hours from the emergency removal, excluding Saturdays, Sundays and judicial holidays to request temporary custody of the Indian child.

(11) A petition and accompanying documents filed pursuant to section (7) of this rule must contain the following information, if known, in addition to any information required by state law:

(a) The name, age, and last known address of the Indian child.

(b) The name and address of the Indian child's parents and Indian custodians, if any.

(c) The steps taken to provide notification to the Indian child's parents, custodians, and tribe about the court hearing.

(d) If the Indianchild's parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate BIA Regional Director.

(e) The residence and the domicile of the Indian child.

(f) If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.

(g) The tribal affiliation of the Indian child and of the parents or Indiancustodians.

(h) A specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the Indian child to take that action.

(i) A statement of the threat of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent imminent physical damage or harm to the Indian child.

(j) A statement of the Active efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.

(k) If it is believed that a Indian child's domicile or residence is on a reservation where the tribe exercises exclusive jurisdiction over juvenile dependency matters, a statement of efforts that have been made and are being made to contact the tribe and transfer the child to the tribe's jurisdiction.

(12) When a safety threat to the Indian child persists and the Indian child's tribe does not have exclusive jurisdiction and will not request transfer of the case to its court, the Department must initiate a child custody proceeding and, in consultation with the Indian child's parents and tribe, if known, explore available placement resources which meet the placement preferences in OAR 413-115-0090, unless such placement has already occurred.

Or. Admin. Code § 413-115-0070

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 419B.171 & ORS 409.050

Statutes/Other Implemented: ORS 418.005, ORS 418.015, ORS 419B.150 & ORS 419B.183