Current through all regulations passed and filed through September 16, 2024
(A) A public children services agency (PCSA)
can take emergency protective custody of any Indian child pursuant to paragraph
(C) of rule
5101:2-39-01 of the
Administrative Code regardless of the jurisdictional status of his or her tribe
as long as the child is in danger of imminent physical damage or
harm.
(B) When emergency removal of
a child from his or her own home is necessary, the PCSA shall consider the
child's racial or ethnic background to determine whether the child may be an
Indian child. In such cases where the circumstances during the removal are not
favorable to identify or inquire if a child is an Indian child, upon the
agency's initial contact the case worker shall take the required steps to
determine the Indian status of eligibility and membership. The agency shall act
in accordance with the requirements set forth in paragraph (B) of rule
5101:2-53-03 of the
Administrative Code.
(C) Any
emergency removal or placement of an Indian child shall terminate immediately
when the removal or placement is no longer necessary to prevent imminent
physical damage or harm to the child.
(D) A petition for a court order authorizing
the emergency removal or continued emergency placement should contain a
statement of the risk 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 such imminent physical damage or harm to the child. The
petition or its accompanying documents should also contain the following
information:
(1) The name, age, and last known
address of the Indian child;
(2)
The name and address of the child's parents and Indian custodians, if
any;
(3) The steps taken to provide
notice to the child's parents, custodians, and tribe about the emergency
proceeding;
(4) 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
the regional office of the bureau of Indian affairs (BIA) at the following
address: "Minneapolis Regional Director, Bureau of Indian
Affairs, 5600
American Blvd. W, Ste. 500, Bloomington, MN 55437";
(5) The residence and the domicile of the
Indian child;
(6) 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;
(7) The tribal affiliation of the child and
of the parents or Indian custodians;
(8) A specific and detailed account of the
circumstances that led the agency responsible for the emergency removal of the
child to take that action;
(9) If
the child is believed to reside or be domiciled 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; and
(10) A statement of the efforts that have
been taken to assist the parents or Indian custodians so the Indian child may
safely be returned to their custody.
(E) An emergency proceeding regarding an
Indian child should not be continued for more than thirty days unless the court
makes the following determinations:
(1)
Restoring the child to the parent or Indian custodian would subject the child
to imminent physical damage or harm;
(2) The court has been unable to transfer the
proceeding to the jurisdiction of the appropriate Indian tribe; and
(3) It has not been possible to initiate a
child custody proceeding.
(F) Prior to an involuntary custody court
proceeding, the PCSA or private child placing agency (PCPA) shall provide the
court with information which either proves or suggests a child is a member of
an Indian tribe and is eligible to be within the jurisdiction of a tribal court
pursuant to rule
5101:2-53-03 of the
Administrative Code.
(G) In any
involuntary proceeding where the agency knows or has reason to know that the
child subject to the proceeding is an Indian child, the agency shall adhere to
the notice requirements outlined in rule
5101:2-53-04 of the
Administrative Code. The agency shall file with the court a copy of the notice
and any return receipts or other proof of service.
(H) No foster care placement or termination
of parental rights proceeding may be held until at least ten days after receipt
of the notice by the parent or Indian custodian and by the tribe or the
director of the BIA regional office in Minneapolis. The parent, Indian
custodian, and tribe each have a right, upon request, to be granted up to
twenty additional days from the date upon which notice was received to prepare
for participation in the proceeding.
(I) Except as provided in paragraph (A) of
this rule, no foster-care or termination of parental rights proceeding may be
held until the waiting periods to which the parents or Indian custodians and to
which the Indian child's tribe are entitled have expired in accordance with the
following:
(1) Ten days after each parent or
Indian custodian, or the director of the BIA regional office in Minneapolis
where the parent or Indian custodian is unknown, has received notice of that
particular child custody proceeding in accordance with rule
5101:2-53-04 of the
Administrative Code.
(2) Ten days
after the Indian child's tribe, or the director of the BIA regional office in
Minneapolis if the Indian child's tribe is unknown, has received notice of that
particular child custody proceeding in accordance with rule
5101:2-53-04 of the
Administrative Code.
(3) Up to
thirty days after the parent or Indian custodian has received notice of that
particular child custody proceeding in accordance with rule
5101:2-53-04 of the
Administrative Code, if the parent or Indian custodian has requested up to
twenty additional days to prepare for the proceeding.
(4) Up to thirty days after the Indian
child's tribe has received notice of that particular child custody proceeding
in accordance with rule
5101:2-53-04 of the
Administrative Code, if the Indian child's tribe has requested up to twenty
additional days to prepare for the proceeding.
(5) Additional time beyond the minimum
required by this rule may also be available pursuant to extensions granted by
the court.
(J) The
agency shall notify the tribe's designated agent or tribal court affecting
their tribal member even if the tribe has declined to be involved. The tribe
retains the right to participate as an interested party or to intervene at any
point in the proceeding.
(K) If the
agency recommends foster placement, an affidavit shall be submitted to the
court containing all of the following information:
(1) A description of active efforts to
coordinate with the child's tribe or any Indian organization in assisting the
Indian parent or Indian custodian with services needed to prevent the need for
placement, and an explanation of why these services were unsuccessful in
maintaining the child in the home.
(2) An explanation of why the child cannot be
protected from serious emotional or physical harm if the child remains in the
home even if services are provided to the child and family.
(3) An explanation of the diligent efforts
made to contact the child's extended family about providing a placement for the
child or, if any members are not known, diligent efforts made to contact the
child's tribe and other local Indian organizations for assistance in
identifying and contacting extended family, other tribal members, or Indian
families for placement.
(4) Clear
and convincing evidence, including testimony of one or more qualified expert
witnesses, demonstrating that the child's continued custody by the child's
parent or Indian custodian is likely to result in serious emotional or physical
damage to the child. The evidence must show a causal relationship between the
particular conditions in the home and the likelihood that continued custody of
the child will result in serious emotional or physical damage to the particular
child who is the subject of the child custody proceeding. Without such a causal
relationship, evidence that shows only the existence of community or family
poverty, isolation, single parenthood, custodian age, crowded or inadequate
housing, substance abuse, or nonconforming social behavior does not by itself
constitute clear and convincing evidence.
(L) The agency shall submit a report that
contains the following information at the review hearing:
(1) A description of active efforts to
reunify the family since the last disposition or review hearing and if those
efforts were not successful, an explanation regarding why.
(2) That efforts were made by the agency to
arrange for the child's visitation with extended family, or with other tribal
members, to ensure the child's ongoing participation in his or her
culture.
(3) A statement of family
changes needed to correct the problems necessitating intervention, with
timetables for accomplishing them.
(4) A description of services to be provided
to assist the family, specifically identifying those made available with
assistance from the tribe or an Indian organization.
(5) A description of services to be provided
to ensure the child's ongoing connection to his or her culture while placed
outside of his/her family, including attendance at significant cultural
events.
(6) A description of
actions to be taken by the parents or Indian custodian to correct the
identified problems, and of the parents' compliance with the case plan thus
far.
(7) A statement that active
efforts have been made to provide services to rehabilitate or prevent the
breakup of the Indian family and that these efforts were not
successful.
(M) If the
agency petitions the court for termination of parental rights, the agency shall
include the following information in the petition:
(1) Evidence beyond a reasonable doubt,
including testimony of one or more qualified expert witnesses, demonstrating
that the child's continued custody by the child's parent or Indian custodian is
likely to result in serious emotional or physical damage to the child. The
evidence must show a causal relationship between the particular conditions in
the home and the likelihood that continued custody of the child will result in
serious emotional or physical damage to the particular child who is the subject
of the child custody proceeding. Without such a causal relationship, evidence
that shows only the existence of community or family poverty, isolation, single
parenthood, custodian age, crowded or inadequate housing, substance abuse, or
nonconforming social behavior does not by itself constitute clear and
convincing evidence.
(2) The
description of circumstances supporting the grounds for termination.
(3) A description of the active efforts made
to provide remedial services and rehabilitative programs as coordinated efforts
to prevent the breakup of the family and why these efforts were
unsuccessful.
(4) A description of
the active efforts made to assist the Indian parent or custodian with services
needed to avoid termination of parental rights and an explanation of why these
efforts were unsuccessful.
(5) An
explanation of why the child cannot be protected from the identified problems
in the home.
(6) A summary of the
tribe's position regarding the permanency plan, including any attachments or
supporting documents sent by the tribe to the agency.
(7) An explanation of the efforts completed
pursuant to rule
5101:2-53-08 of the
Administrative Code.
(8) A
description of arrangements made by the agency to ensure visitation and all
efforts made to maintain the child's cultural connections.
(9) A permanency plan for the
child.
(N) Each party to
an emergency proceeding or a foster care placement or termination of parental
rights proceeding under state law involving an Indian child has a right to
timely examine all reports and other documents filed or lodged with the court
upon which any decision with respect to such action may be based.
(O) Upon the agency's determination that
there are compelling reasons not to pursue termination of parental rights or
reunification for children ages sixteen or older, the agency shall petition the
court for a planned permanent living arrangement disposition in accordance with
rule 5101:2-42-68 of the
Administrative Code. The planned permanent living arrangement petition shall
include the following:
(1) Documented facts
and circumstances refuting the grounds for termination of parental rights. The
agency has to show that although the child cannot be returned home, termination
of parental rights is not in the child's best interest.
(2) A description of why the planned
permanent living arrangement is in the child's best interest.
(3) A description of the active efforts made
to provide remedial services and rehabilitative programs as coordinated efforts
to prevent the breakup of the family and why these efforts were
unsuccessful.
(4) An explanation of
the active efforts made to contact the child's tribe, extended family, and
other local Indian organizations for assistance in identifying a culturally
appropriate placement for the child.
(5) An explanation of why the child cannot be
moved to a placement that meets the preferences established in accordance with
rule 5101:2-53-08 of the
Administrative Code if the child is not placed with the tribal placement
preference.
(6) A description of
arrangements made by the agency to ensure visitation with extended family, or,
if there is no extended family, with other tribal members, to support the
child's cultural connections.
(7) A
summary of the tribe's position regarding the permanency plan, including any
attachments or supporting documents sent by the tribe to the agency.
(8) A plan to ensure the stability of the
planned permanent living arrangement.
(9) Documentation that the requirements in
paragraph (D)(3) of rule
5101:2-42-68 of the
Administrative Code have been met.
(P) If, in the course of any child custody
proceeding, any party asserts or the court has reason to believe that the
Indian child may have been improperly removed from the custody of his or her
parent or Indian custodian, the court will expeditiously determine whether
there was improper removal. If the court finds that the Indian child was
improperly removed, the court will terminate the proceeding and the child shall
be returned immediately to his or her parent or Indian custodian, unless
returning the child to his or her parent or Indian custodian would subject the
child to substantial and immediate danger or threat of such danger.
(Q) Any of the following may petition the
court to invalidate an action for foster care placement or termination of
parental rights under state law where it is alleged that
25 U.S.C.
1911 (1978),
25 U.S.C.
1912 (1978), or
25 U.S.C.
1913 (1978) has been violated:
(1) An Indian child who is or was the subject
of any action for foster care placement or termination of parental
rights;
(2) A parent or Indian
custodian from whose custody such child was removed; and
(3) The Indian child's tribe.
(R) Upon a showing that an action
for foster-care placement or termination of parental rights violated any
provision of 25 U.S.C.
1911,
25 U.S.C.
1912, or
25 U.S.C.
1913, the court will determine whether it is
appropriate to invalidate the action.
(S) To petition for invalidation of an action
for foster-care placement or termination of parental rights, there is no
requirement that the petitioner's rights under the Indian Child Welfare Act
(ICWA) (1978) were violated; rather, a petitioner may challenge the action
based on any violations of 25 U.S.C. 1911,
25 U.S.C.
1912, or
25 U.S.C.
1913 during the course of the child custody
proceeding.
