OAR 413-115-0070
Emergency Removal and Return Upon Demand
(1)
During a CPS assessment, the Department may take emergency protective custody of any Indian child, whether or not the 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;(b)
Removal is necessary to prevent imminent physical damage or harm to the child; and(c)
The Department cannot develop a protective action plan under OAR 413-015-0432 (Develop Safety Plans) in which the Indian child remains in the home, or an in-home initial safety plan per the requirements of OAR 413-015-0437 (Develop an Initial Safety Plan), meeting the requirements of OAR 413-015-0432 (Develop Safety Plans) to ensure child safety.(2)
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 as to the child’s residence or domicile, since the child may be a resident of or domiciled on a reservation but is temporarily off the reservation.(3)
When determining whether there is reason to know that the child is an Indian child, if the Department has not already determined that the child is an Indian child, the person must make a good faith effort to determine whether there is reason to know the child is an Indian child, including by consulting with:(b)
The child’s parent or parents;(f)
Any Indian tribe of which the child may be a member or of which the child may be eligible for membership.(4)
When taking emergency protective custody of an Indian child, the Department must make a good faith effort to determine whether there is reason to know that the child is an Indian child and to contact by telephone, electronic mail, facsimile or other means of immediate communication any tribe of which the child is or may be a member to determine the child’s affiliation. When emergency removal is necessary, the Department must consult with the tribe.(5)
If there is reason to know the child is an Indian child, active efforts must be made to place the child during emergency protective custody in a setting which follows the placement priorities established by the ICWA or the tribe and set forth in OAR 413-115-0090 (Placement of Indian Children).(6)
If there is reason to know the child is an Indian child, and the child is placed in emergency protective custody or the child cannot be returned to the child’s parents upon demand during a protective action plan 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 (Tribal Membership and Enrollment)(2).(c)
Immediately notify the child’s tribe pursuant to OAR 413-115-0050 (Notification to the Tribe of Placement or Change in Placement), the parents, the Indian custodian and if known, the grandparents, of the removal of the child and document the notification in the Department’s information system.(d)
Comply with OAR 413-115-0120 (Notice Required Prior to a Child Custody Proceeding or Court Hearing).(e)
Continually assess whether the removal and placement continues to be necessary to prevent imminent physical damage or harm to the child.(7)
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 ICWA.(b)
Transfer of the case to the jurisdiction of the appropriate tribe.(c)
Returning the child to the parent or Indian custodian.(8)
If an Indian child is removed pursuant to a protective action plan or emergency removal and cannot be returned to the parent or Indian custodian or the case is not transferred to the jurisdiction of the tribe, under ORS 419B.183 (Speedy hearing required) the Department must request that the court hold a hearing within 24 hours—excluding Saturdays, Sundays and judicial holidays—to request temporary custody of the child.(9)
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 child’s parents and Indian custodians, if any.(c)
The steps taken to provide notice to the child’s parents, custodians, and tribe about the court hearing.(d)
If the child’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 child and of the parents or Indian custodians.(h)
A specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the child to take that action.(i)
A statement of the threat of imminent physical damage or harm to the child and any evidence that the emergency removal or placement continues to be necessary to prevent imminent physical damage or harm to the 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 child’s domicile or residence is on a reservation where the tribe exercises exclusive jurisdiction over child-custody 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.(10)
Where the danger to the Indian child persists and the 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 child’s parents and tribe, if known, explore available placement resources which meet the placement preferences in OAR 413-115-0090 (Placement of Indian Children), unless such placement has already occurred.
Source:
Rule 413-115-0070 — Emergency Removal and Return Upon Demand, https://secure.sos.state.or.us/oard/view.action?ruleNumber=413-115-0070.