Emergency Proceedings

C.1 Regulation

23.2 - Emergency proceeding means and includes any court action that involves an emergency removal or emergency placement of an Indian child.

C.1 Guidelines

The statute and regulations recognize that emergency proceedings may need to proceed differently from other proceedings under ICWA.21 Specifically, section 1922 of ICWA was designed to “permit, under applicable State law, the emergency removal of an Indian child from his parent or Indian custodian or emergency placement of such child in order to prevent imminent physical harm to the child notwithstanding the provisions of” ICWA.22 While States use different terminology (e.g., preliminary protective hearing, shelter hearing) for emergency hearings, the regulatory definition of emergency proceedings is intended to cover such proceedings as may be necessary to prevent imminent physical damage or harm to the child.

Both the legislative history and the decisions of multiple courts support the conclusion that ICWA’s emergency proceedings provisions apply to both: (1) Indian children who are domiciled off of the reservation and (2) Indian children domiciled on the reservation, but temporarily off of the reservation.²³

21 See 25 U.S.C. 1922. 22 H.R. Rep. No. 9501386; 25 U.S.C. 1922. 23 See 81 FR 38794-38795 (June 14, 2016).

C.2 Regulation

…necessary to prevent imminent physical damage or harm to the child. See 23.113(b)(1).

C.2 Guidelines

ICWA allows for removal of a child from his or her parents or Indian custodian, as part of an emergency proceeding only if the child faces “imminent physical damage or harm.” The Department interprets this standard as mirroring the constitutional standard for removal of any child from his or her parents without providing due process.

As a general rule, before any parent may be deprived of the care or custody of their child without their consent, due process—ordinarily a court proceeding resulting in an order permitting removal—must be provided.²⁴ A child may, however, be taken into custody by a State official without court authorization or parental consent only in emergency circumstances. Courts have defined emergency circumstances as “circumstances in which the child is immediately threatened with harm,” including when there is an immediate threat to the safety of the child, when a young child is left without care or adequate supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence.²⁵ The same standards and protections apply when an Indian child is involved. And those standards and protections are reflected in section 1922 of ICWA, which addresses emergency proceedings involving Indian children.

24 See, e.g., Tenenbaum v. Williams, 193 F.3d 581 (2d Cit. 1999); Doe v. Kearney, 329 F.3d 1286 (11th Cir. 2003).

C.3 Regulation

23.113 - What are the standards for emergency proceedings involving an Indian child?

(a) Any emergency removal or placement of an Indian child under State law must terminate immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.

(b) The State court must:

(1) Make a finding on the record that the emergency removal or placement is necessary to prevent imminent physical damage or harm to the child;

(2) Promptly hold a hearing on whether the emergency removal or placement continues to be necessary whenever new information indicates that the emergency situation has ended; and

(3) At any court hearing during the emergency proceeding, determine whether the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.

(4) Immediately terminate (or ensure that the agency immediately terminates) the emergency proceeding once the court or agency possesses sufficient evidence to determine that the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.

(c) An emergency proceeding can be terminated by one or more of the following actions:

(1) Initiation of a child-custody proceeding subject to the provisions of ICWA;

(2) Transfer of the child to the jurisdiction of the appropriate Indian Tribe; or

(3) Restoring the child to the parent or Indian custodian. …

C.3 Guidelines

Timing of hearing

If any child (including a non-Indian child) is removed from her parents by State officials without court authorization or parental consent, the State must generally provide a meaningful hearing promptly after removal.²⁶ States may call these proceedings by different names, such as “protective custody,” “emergency custody,” “shelter care,” or “probable cause,” among others, but they typically take place within a short time frame after the removal, such as 48 or 72 hours. These hearings should provide parents with a meaningful opportunity to be heard. If the agency determines the emergency has ended, State procedures will dictate whether the agency may return the child without the need for a hearing.

Termination of Emergency Removal

If a child was removed from the home on an emergency basis because of a temporary threat to his or her safety, but the threat has been removed and the child is no longer at risk, the State should terminate the removal, either by returning the child to the parent or transferring the case to Tribal jurisdiction. This comports with standards that apply to all child-welfare cases, and protects the “fundamental liberty interest” that parents have in the care and custody of their children.²⁷ If circumstances warrant, however, the State agency may instead initiate a child-custody proceeding to which the full set of ICWA protections would apply.

• Restoring the child to the parent or Indian custodian. If the agency determines the emergency has ended, State procedures will dictate whether the agency may return the child without the need for a hearing. A safety plan may be a solution to mitigate the situation that gave rise to the need for emergency removal and placement and allow the State to terminate the emergency proceeding. If the State court finds that the implementation of a safety plan means that emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child, the child should be returned to the parent or custodian. The State may still choose to initiate a child-custody proceeding, or may transfer the case to the jurisdiction of the Tribe.
• Transferring the proceeding to Tribal jurisdiction. The agency may terminate the emergency proceeding by transferring the child to the jurisdiction of the Tribe. Transfer of a proceeding is discussed below in section F of these guidelines.
• Initiating a “child custody proceeding.” To initiate a full “child custody proceeding” (as defined in 25 CFR 23.2), the State agency should set the hearing date and send out notice by registered or certified mail, return receipt requested, to the parent or Indian custodian and Tribe in accordance with ICWA’s required timeframes (see section D.7 of these guidelines).

Termination of the emergency proceeding does not necessarily mean that the actual placement of the child must change. If an Indian child cannot be safely returned to the parents or custodian, the child must either be transferred to the jurisdiction of the appropriate Indian Tribe, or the State must initiate a child-custody proceeding to which the full set of ICWA protections would apply. Under this scenario, the child may end up staying in the same placement, but such placement will not be under the emergency proceeding provisions authorized by section 1922. Instead, that placement would need to be pursuant to Tribal law (if the child is transferred to the jurisdiction of the Tribe) or comply with the relevant ICWA statutory and rule provisions for a child-custody proceeding (if the State retains jurisdiction)

ICWA and the rule emphasize that an emergency proceeding under ICWA section 1922 needs to be as short as possible and include provisions that are designed to achieve that result. ICWA requires that State officials “insure” that Indian children are returned home (or transferred to their Tribe’s jurisdiction) as soon as the threat of imminent physical damage or harm has ended, or that State officials “expeditiously” initiate a child-custody proceeding subject to all ICWA protections.²⁸ The rule requires that an emergency removal or placement of an Indian child must “terminate immediately” when it is no longer necessary to prevent imminent physical damage or harm to the child.

25 Hurlman v. Ric, 927 F.2d 74, 80-81 (2d Cir. 1991 (citing cases). 26 Swipies v. Kofka, 419 F.3d 709, 715 (8th Cir. 2005). 27 Troxel v. Granville, 530 U.S. 57 (2000). 28 25 U.S.C. 1922.

C.4 Regulation

23.113 - What are the standards for emergency proceedings involving an Indian child?

…(d) A petition for a court order authorizing the emergency removal or continued emergency placement, or its accompanying documents, 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 appropriate BIA Regional Director (see www.bia.gov);

(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.

C.4 Guidelines

The contents listed in this section of the regulation are strongly recommended, but not required (as indicated by the word “should” rather than “must”). A failure to include any of the listed information should not result in denial of the petition if the child faces imminent physical damage or harm.

C.5 Regulation

23.113 - What are the standards for emergency proceedings involving an Indian child?

…(e) An emergency proceeding regarding an Indian child should not be continued for more than 30 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” as defined in 23.2.

C.5 Guidelines

Emergency proceedings—which generally do not include the full suite of due process or ICWA protections for parents and children—must not extend for longer than necessary to prevent imminent physical damage or harm to the child. If there is sufficient evidence of abuse or neglect, the State should promptly initiate a proceeding that provides the full suite of due process and ICWA protections. State laws vary in their handling of emergency proceedings and the initiation of foster-care proceedings, and it may not always be easy to ascertain when the “emergency proceeding” is concluded. The intent of the presumptive outer bound on the length of an emergency proceeding (30 days) is to ensure the safeguards of the Act cannot be evaded by use of long-term emergency proceedings.

States should adapt the regulation to their own procedures, with the goal of ensuring that proceedings (beyond the emergency custody, shelter care, or otherwise named initial hearing) that include the full suite of due process and ICWA protections are commenced within 30 days of any emergency removal. While there may be State-specific types of emergency proceedings with separate timeframes, all of the State requirements may be followed, so long as a proceeding with the full suite of due process and ICWA protections is underway within 30 days, absent extenuating circumstances.

Should the court need the emergency proceeding of an Indian child to last longer than 30 days, however, it may extend the emergency proceeding if it makes all three of the specific findings listed at 23.113(e). Allowing a court to extend an emergency proceeding if it makes those findings provides appropriate flexibility for a court that finds itself facing unusual circumstances.²⁹

29 See 81 FR 38817 (June 14, 2016).

C.6 Regulation

See 23.113

C.6 Guidelines

As a matter of general best practice in child welfare, State agencies should try to identify extended family or other individuals with whom the child is already familiar as possible emergency placements. If the child is an Indian child, agencies should strive to provide an initial placement for the child that meets ICWA’s (or the Tribe’s) placement preferences. This will help prevent subsequent disruptions if the child needs to be moved to a preferred placement once a child-custody proceeding is initiated.

State agencies should also determine if there are available emergency foster homes already licensed by the State or the child’s Tribe.

If the Indian child is placed on an emergency basis in a non-preferred placement because a preferred placement is unavailable or has not yet met background check or licensing requirements, State agencies should have a concurrent plan for placement as soon as possible with a preferred placement.

C.7 Regulations

See 23.113

C.7 Guidelines

It is recommended that the State agency ask the family and extended family whether the child is a Tribal member or whether a parent is a Tribal member and the child is eligible for membership as part of the emergency removal and placement process. If the State agency believes that the child may be an Indian child, it is recommended that it let the Tribe know the child has been removed on an emergency basis, and begin coordination with the Tribe regarding services and placements. If there is still uncertainty regarding who is the Indian child’s Tribe, it is recommended that the State agency continue to investigate the applicability of ICWA and document findings.

C.8 Guideline

It is recommend that State agencies work with Tribes, parents, and other parties as soon as possible, even in an emergency situation, to begin providing active efforts to reunite the family.

C.9 Regulation

No regulatory requirements for notice by registered or certified apply in emergency proceedings; however, 23.113(c) requires agencies to report to the court on their efforts to contact the parents, Indian custodian, and Tribe for the emergency proceeding.

C.9 Guidelines

Neither the statute nor rule requires notice prior to an emergency removal because of the short timeframe in which emergency proceedings are conducted to secure the safety of the child (although there may be relevant State or due process requirements). In order to protect the parents’, Indian custodians’, and Tribes’ due process and other rights in these situations, however, it is a recommended practice for the agency to take all practical steps to contact them. This likely includes contact by telephone or in person and may include email or other written forms of contact.