5101:2-53-06 Emergency removal and involuntary custody of Indian children.

(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 Indian heritage. In such cases where the circumstances during the removal are not favorable to identify or inquire if a child is of Indian heritage, 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 (C) of rule 5101:2-53-03 of the Administrative Code.

(C) 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.

(D) The agency shall notify the parents or Indian custodian and the Indian child's tribe or tribal court, region director at the bureau of Indian affairs (BIA), and the U.S. secretary of the interior of all juvenile court proceedings involving foster care placement, termination of parental rights, pre-adoptive or adoptive placement. The agency shall send the notice by registered mail with "return receipt requested" and the notice shall include:

(1) The name of the Indian child.

(2) The Indian child's tribal affiliation.

(3) A copy of the petition, complaint, or other document by which the proceeding was initiated.

(4) The name of the petitioner and the name and address of the petitioner's attorney.

(5) A statement of the right of the parent or Indian custodian and the child's tribe to intervene in the proceeding.

(6) A statement of the right of the parent or Indian custodian and the Indian child's tribe that no temporary or permanent court commitment proceeding shall be held until at least ten days after the parent or Indian custodian and the Indian child's tribe have received notice of the agency's intention to commence such an involuntary court action. This statement shall also include the provision that, upon request, the parent or Indian custodian or the Indian child's tribe shall be granted up to twenty additional days to prepare for the proceedings.

(7) The location, mailing address, and telephone number of the juvenile court.

(8) A statement of the right of the parent or Indian custodian or the Indian child's tribe to petition the juvenile court to transfer the proceeding to the Indian child's tribal court.

(9) A statement of the potential legal consequences of an adjudication on future custodial rights of the parents or Indian custodians.

(10) A statement regarding the confidential nature of child custody proceedings.

(E) If there is reason to believe that the parent or Indian custodian will not understand the notice because of possible limited English proficiency, a copy of the notice shall be sent by the agency to the BIA area office nearest to the residence of that person, and a request made of BIA to arrange for translation in the language that the parent or Indian custodian best understands. The PCSA or PCPA shall document the request for translation in the file.

(F) 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.

(G) If the identity or location of the parent or Indian custodian and the tribe cannot be identified, the agency shall send the same type of notification identified in paragraph (D) of this rule in the same manner to the region director at BIA and U.S. secretary of the interior, who shall have fifteen days after receipt to notify the parents or Indian custodian and the tribe.

(H) If the agency recommends foster placement, an affidavit documenting active efforts 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.

(I) 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 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.

(J) If the agency petitions the court for termination of parental rights, the agency shall include the following information in the petition:

(1) The description of circumstances supporting the grounds for termination.

(2) 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.

(3) 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.

(4) An explanation of why the child cannot be protected from the identified problems in the home.

(5) A summary of the tribe's position regarding the permanency plan, including any attachments or supporting documents sent by the tribe to the agency.

(6) An explanation of the efforts completed pursuant to rule 5101:2-53-08 of the Administrative Code.

(7) A description of arrangements made by the agency to ensure visitation and all efforts made to maintain the child's cultural connections.

(8) A permanency plan for the child.

(K) Upon the agency's determination that there are compelling reasons not to pursue termination of parental rights or reunification, the agency shall petition the court for a planned permanent living arrangement disposition. 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.

Replaces: part of rule 5101:2-53-04

Effective: 02/01/2014
R.C. 119.032 review dates: 10/08/2013 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 5103.03 , 5153.16
Rule Amplifies: 5103.03 , 5153.16
Prior Effective Dates: 3/20/87, 2/1/03, 04/20/2008