232B.6 - EMERGENCY REMOVAL OF INDIAN CHILD -- FOSTER CARE PLACEMENT -- TERMINATION OF PARENTAL RIGHTS.
232B.6 EMERGENCY REMOVAL OF INDIAN CHILD -- FOSTER
CARE PLACEMENT -- TERMINATION OF PARENTAL RIGHTS.
1. This chapter shall not be construed to prevent the emergency
removal of an Indian child who is a resident of or is domiciled on an
Indian reservation, but is temporarily located off the reservation,
or is away from the child's parent or Indian custodian, or the
emergency placement of such child in a foster home or institution,
under applicable state law, in order to prevent imminent physical
damage or harm to the child. In a case of emergency removal of an
Indian child, regardless of residence or domicile of the child, the
state shall ensure that the emergency removal or placement terminates
immediately when the removal or placement is no longer necessary to
prevent imminent physical damage or harm to the child and shall
expeditiously initiate a child custody proceeding subject to the
provisions of this chapter, transfer the child to the jurisdiction of
the appropriate Indian tribe, or restore the child to the child's
parent or Indian custodian, as may be appropriate.
2. Within three business days following the issuance of an order
of emergency removal or placement of an Indian child, the court
issuing the order shall notify the Indian child's tribe of the
emergency removal or placement by registered mail, return receipt
requested. The notice shall include the court order, the petition,
if applicable, any information required by this chapter, and a
statement informing the child's tribe of the tribe's right to
intervene in the proceeding.
3. A motion, application, or petition commencing an emergency or
temporary removal under section 232.79 or 232.95 or foster care
placement proceeding under chapter 232 involving an Indian child
shall be accompanied by all of the following:
a. An affidavit containing the names, tribal affiliations,
and addresses of the Indian child, and of the child's parents and
Indian custodians.
b. A specific and detailed account of the circumstances
supporting the removal of the child.
c. All reports or other documents from each public or private
agency involved with the emergency or temporary removal that are
filed with the court and upon which any decision may be based. The
reports shall include all of the following information, when
available:
(1) The name of each agency.
(2) The names of agency administrators and professionals involved
in the removal.
(3) A description of the emergency justifying the removal of the
child.
(4) All observations made and actions taken by the agency.
(5) The date, time, and place of each such action.
(6) The signatures of all agency personnel involved.
(7) A statement of the specific actions taken and to be taken by
each involved agency to effectuate the safe return of the child to
the custody of the child's parent or Indian custodian.
4. An emergency removal or placement of an Indian child shall
immediately terminate, and any court order approving the removal or
placement shall be vacated, when the removal or placement is no
longer necessary to prevent imminent physical damage or harm to the
child. In no case shall an emergency removal or placement order
remain in effect for more than fifteen days unless, upon a showing
that continuation of the order is necessary to prevent imminent
physical damage or harm to the child, the court extends the order for
a period not to exceed an additional thirty days. If the Indian
child's tribe has been identified, the court shall notify the tribe
of the date and time of any hearing scheduled to determine whether to
extend an emergency removal or placement order.
5. Upon termination of the emergency removal or placement order,
the child shall immediately be returned to the custody of the child's
parent or Indian custodian unless any of the following circumstances
exist:
a. The child is transferred to the jurisdiction of the
child's tribe.
b. In an involuntary foster care placement proceeding
pursuant to the federal Indian Child Welfare Act, the court orders
that the child shall be placed in foster care upon a determination,
supported by clear and convincing evidence, including testimony by
qualified expert witnesses, that custody of the child by the child's
parent or Indian custodian is likely to result in serious emotional
or physical damage to the child.
c. The child's parent or Indian custodian voluntarily
consents to the foster care placement of the child pursuant to the
provisions of the federal Indian Child Welfare Act.
6. a. Termination of parental rights over an Indian child
shall not be ordered in the absence of a determination, supported by
evidence beyond a reasonable doubt, including the testimony of
qualified expert witnesses, that the continued custody of the child
by the child's parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
b. Foster care placement of an Indian child shall not be
ordered in the absence of a determination, supported by clear and
convincing evidence, including the testimony of qualified expert
witnesses, that the continued custody of the child by the child's
parent or Indian custodian is likely to result in serious emotional
or physical damage to the child. Section History: Recent Form
2003 Acts, ch 153, §7