(a)Findings in support of detention (§ 319; 42 U.S.C. § 672)The court must order the child released from custody unless the court makes the findings specified in section 319(c), and where it is known, or there is reason to know the child is an Indian child, the additional finding specified in section 319(d).
(Subd (a) amended effective January 1, 2019; previously amended effective July 1, 2002 and January 1, 2007.)
(b)Factors to considerIn determining whether to release or detain the child under (a), the court must consider the factors in section 319(f).
(Subd (b) amended effective January 1, 2019; previously amended effective July 1, 2002, January 1, 2007, and January 1, 2016.)
(c)Findings of the court-reasonable or active efforts (§ 319; 42 U.S.C. § 672)(1) Whether the child is released or detained at the hearing, the court must determine whether reasonable efforts have been made to prevent or eliminate the need for removal and must make one of the following findings:(2) Where it is known or there is reason to know the child is an Indian child, whether the child is released or detained at the hearing, the court must determine whether active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and whether those efforts have been successful. Those active efforts must be documented in detail in the record, and the court must make one of the following findings: (A) Active efforts have been made and were successful; or(B) Active efforts have been made and were not successful; or(C) Active efforts have not been made; and(D) The court orders the department to initiate or continue services in accordance with section 358.(3) The court must also determine whether services are available that would prevent the need for further detention.(4) The court must not order the child detained unless the court, after inquiry regarding available services, finds that there are no reasonable services or where it is known or there is reason to know the child is an Indian child, active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family that would prevent or eliminate the need to detain the child or that would permit the child to return home.(5) If the court orders the child detained, the court must proceed under section 319(g)-(h) and where it is known, or there is reason to know the child is an Indian child, subdivision (f) of this rule. (Subd (c) amended effective January 1, 2019; adopted as subd (d); previously amended and relettered effective July 1, 2002; previously amended effective January 1, 2007.)
(d)Orders of the court (§ 319; 42 U.S.C. § 672)If the court orders the child detained, the court must order that temporary care and custody of the child be vested with the county welfare department pending disposition or further order of the court and must make the other findings and orders specified in section 319(g) and (h)(3).
(Subd (d) amended effective January 1, 2019; adopted effective July 1, 2002.)
(e)Detention alternatives (§ 319)The court may order the child detained as specified in section 319(h).
(Subd (e) amended effective January 1, 2019; adopted effective January 1, 1999; previously amended effective July 1, 2002, and January 1, 2007.)
(f)Additional requirements regarding detention of Indian child (§ 319)(1) If it is known, or there is reason to know the child is an Indian child, the child must be detained in a home that complies with the placement preferences in section 361.31 unless the court finds by clear and convincing evidence good cause exists not to follow the placement preferences in accordance with rule 5.485.(2) If it is known, or there is reason to know the child is an Indian child, the detention hearing may not be continued beyond 30 days unless the court finds all of the following: (A) Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm;(B) The court is unable to transfer(C) It is not possible to initiate an Indian child custody proceeding as defined in section 224.1.(Subd (h) adopted effective January 1, 2020.)
(g)Hearing for return of custody of Indian child after emergency removal when emergency has ended (§ 319.4)If it is known or there is reason to know the child is an Indian child, a party may request a hearing under rule 5.484(b) for return of the child before disposition if the party asserts that there is new evidence that the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.
(Subd (g) adopted effective January 1, 2020.)
Rule 5.678 amended effective January 1, 2020; amended effective January 1, 2019; repealed and adopted as rule 1446 effective January 1, 1998; previously amended and renumbered as rule 5.678 effective January 1, 2007; previously amended effective January 1, 1999, July 1, 2002, and January 1, 2016.
Rule 5.678amended effective 1/1/2020; amended effective 1/1/2019; Rule 5.678 amended effective 1/1/2016; repealed and adopted as rule 1446 effective 1/1/1998; previously amended effective 1/1/1999, and 7/1/2002; previously amended and renumbered as rule 5.678 effective 1/1/2007.