1.As used in this chapter:
a."Active efforts" means affirmative, active, thorough, and timely efforts intended
primarily to maintain or reunite an Indian child with the Indian child's family. If an
agency is involved in the child custody proceeding, active efforts must involve
assisting the parent or a parent or Indian custodian with the steps of a case plan
and including accessing or developing the resources necessary to satisfy the
case plan. To the maximum extent possible, active efforts should be provided in a
manner consistent with the prevailing social and cultural conditions and way of
life of the Indian child's tribe and should be conducted in partnership with the
Indian child and the Indian child's parents, extended family members, Indian
custodians, and tribe. Active efforts ar
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1. As used in this chapter:
a. "Active efforts" means affirmative, active, thorough, and timely efforts intended
primarily to maintain or reunite an Indian child with the Indian child's family. If an
agency is involved in the child custody proceeding, active efforts must involve
assisting the parent or a parent or Indian custodian with the steps of a case plan
and including accessing or developing the resources necessary to satisfy the
case plan. To the maximum extent possible, active efforts should be provided in a
manner consistent with the prevailing social and cultural conditions and way of
life of the Indian child's tribe and should be conducted in partnership with the
Indian child and the Indian child's parents, extended family members, Indian
custodians, and tribe. Active efforts are to be tailored to the facts and
circumstances of the case. The term includes:
(1) Conducting a comprehensive assessment of the circumstances of the Indian
child's family, with a focus on safe reunification as the most desirable goal,
with ongoing timely assessment to determine when the threat is resolved
and placement of the Indian child can be returned to the custodian.
(2) Identifying appropriate services and helping a parent or Indian custodian to
overcome barriers, including actively assisting a parent or Indian custodian
in obtaining such services.
(3) Identifying, notifying, and inviting representatives of the Indian child's tribe to
participate in providing support and services to the Indian child's family and
in family team meetings, permanency planning, and resolution of placement
issues.
(4) Conducting or causing to be conducted a diligent search for the Indian
child's extended family members, and contacting and consulting with
extended family members to provide family structure and support for the
Indian child and the Indian child's parent or Indian custodian.
(5) Offering and employing available and culturally appropriate family
preservation strategies and facilitating the use of remedial and rehabilitative
services provided by the Indian child's tribe.
(6) Taking steps to keep siblings together, if possible.
(7) Supporting regular visits with a parent or Indian custodian in the most
natural setting possible as well as trial home visits of the Indian child during
any period of removal, consistent with the need to ensure the health, safety,
and welfare of the Indian child.
(8) Identifying community resources, including housing, financial, transportation,
mental health, substance abuse, and peer support services and actively
assisting the Indian child's parent or Indian custodian or, as appropriate, the
Indian child's family, in utilizing and accessing those resources.
(9) Monitoring progress and participation in services.
(10) Considering alternative ways to address the needs of the Indian child's
parent or Indian custodian and where appropriate, the family, if the optimum
services do not exist or are not available.
(11) Providing post-reunification services and monitoring.
b. "Adoptive placement" means the permanent placement of an Indian child for
adoption.
c. "Extended family member" means a relationship defined by the law or custom of
the Indian child's tribe or, in the absence of such law or custom, means an
individual who has reached the age of eighteen and who is the Indian child's
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece
or nephew, first or second cousin, or stepparent.
d. "Foster care placement" means the removal of an Indian child from the home of
his or her parent or Indian custodian for temporary placement in a foster home,
qualified residential treatment program, residential care center for Indian children
and youth, or certified shelter care facility, in the home of a relative other than a
parent or Indian custodian, or in the home of a guardian, from which placement
the parent or Indian custodian cannot have the Indian child returned upon
demand. The term does not include an adoptive placement, a preadoptive
placement, an emergency change in placement under section 27-20.3-06, or a
placement pursuant to a criminal or delinquency proceeding.
e. "Indian" means an individual who is a member of an Indian tribe, or who is a
native and a member of a regional corporation as defined under 43 U.S.C. 1606.
f. "Indian child" means any unmarried individual who is under the age of eighteen
and is either a member of an Indian tribe or is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe.
g. "Indian child custody proceeding" means a proceeding brought by the state
involving:
(1) Foster care placement;
(2) A preadoptive placement;
(3) An adoptive placement; or
(4) A termination of parental rights under section 27-20.3-20 for an Indian child.
h. "Indian child's tribe" means the Indian tribe in which an Indian child is a member
or eligible for membership or, in the case of an Indian child who is a member of or
eligible for membership in more than one tribe, the Indian tribe with which the
Indian child has the more significant contacts.
i. "Indian custodian" means any Indian individual who has legal custody of an
Indian child under tribal law or custom or under state law or to whom temporary
physical care, custody, and control has been transferred by the parent of the
Indian child.
j. "Indian tribe" means an Indian tribe, band, nation, or other organized Indian group
or community of Indians recognized as eligible for services provided to Indians by
the United States secretary of the interior because of their status as Indians,
including any Alaska native village as defined in 43 U.S.C. 1602(c).
k. "Parent" means a biological parent or parents of an Indian child or an Indian
individual who has lawfully adopted an Indian child, including adoptions under
tribal law or custom. The term does not include the unwed father if paternity has
not been acknowledged or established.
l. "Preadoptive placement" means the temporary placement of an Indian child in a
foster home, home of a relative other than a parent or Indian custodian, or home
of a guardian after a termination of parental rights but before or in lieu of an
adoptive placement, but does not include an emergency change in placement
under section 27-20.3-06.
m. "Termination of parental rights" means any action resulting in the termination of
the parent-child relationship. It does not include a placement based upon an act
by an Indian child which, if committed by an adult, would be deemed a crime or a
placement upon award of custody to one of the Indian child's parents in a divorce
proceeding.
2. Before removal of an Indian child from the custody of a parent or Indian custodian for
purposes of involuntary foster care placement or the termination of parental rights over
an Indian child, the court shall find that active efforts have been made to provide
remedial services and rehabilitative services designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful. The court may not order
the removal unless evidence of active efforts shows there has been a vigorous and
concerted level of casework beyond the level that would constitute reasonable efforts
under section 27-20.3-26. Reasonable efforts may not be construed to be active
efforts. Active efforts must be made in a manner that takes into account the prevailing
social and cultural values, conditions, and way of life of the Indian child's tribe. Active
efforts must utilize the available resources of the Indian child's extended family, tribe,
tribal and other relevant social service agencies, and individual Indian caregivers.
3. The court may order the removal of the Indian child for involuntary foster care
placement only if the court determines, by clear and convincing evidence, that
continued custody of the Indian child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the Indian child. Evidence must show a
causal relationship between the particular conditions in the home and the likelihood
that continued custody of the Indian child will result in serious emotional or physical
damage to the particular Indian child who is the subject of the proceeding. Poverty,
isolation, custodian age, crowded or inadequate housing, substance use, or
nonconforming social behavior does not by itself constitute clear and convincing
evidence of imminent serious emotional or physical damage to the Indian child.
4. The court may order the termination of parental rights over the Indian child only if the
court determines, by evidence beyond a reasonable doubt that continued custody of
the Indian child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the Indian child.
5. In considering whether to involuntarily place an Indian child in foster care or to
terminate the parental rights of the parent of an Indian child, the court shall require that
a qualified expert witness must be qualified to testify regarding whether the Indian
child's continued custody by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the Indian child and should be qualified to testify as
to the prevailing social and cultural standards of the Indian child's tribe. An individual
may be designated by the Indian child's tribe as being qualified to testify to the
prevailing social and cultural standards of the Indian child's tribe. If the parties stipulate
in writing and the court is satisfied the stipulation is made knowingly, intelligently, and
voluntarily, the court may accept a declaration or affidavit from a qualified expert
witness in lieu of testimony. If one or more parties have been found to be in default
under the North Dakota Rules of Juvenile Procedure, the court may accept a
declaration or affidavit from a qualified expert witness without a stipulation in writing
from the defaulted parties. The court or any party may request the assistance of the
Indian child's tribe or the bureau of Indian affairs office serving the Indian child's tribe
in locating individuals qualified to serve as expert witnesses. The social worker
regularly assigned to the Indian child may not serve as a qualified expert witness in
child custody proceedings concerning the Indian child. The qualified expert witness
should be someone familiar with the particular Indian child and have contact with the
parent or Indian custodian to observe interaction between the parent or Indian
custodian, Indian child, and extended family members. The child welfare agency and
courts should facilitate access to the family and records to facilitate accurate
testimony.
6. If a court order authorizes the emergency removal of the Indian child from the parent
or Indian custodian of the child under state law, the order must be accompanied by a
declaration from the child welfare agency that includes:
a. The name, tribal affiliation, and address of the Indian child, each parent of the
Indian child, and the Indian custodian of the child, as applicable; and
b. A detailed account of the circumstances that led the agency responsible for
emergency removal of the child to take action.
7. An 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 Indian child. If removal or placement is
determined to be no longer necessary, the child welfare agency shall terminate the
removal by returning the Indian child to the parent or Indian custodian and offer a
solution to mitigate the situation that gave rise to the need for emergency removal and
placement.
8. If an Indian child is the subject of a shelter care hearing, the party initiating the hearing
shall provide the court with a declaration that includes the specific actions that have
been taken to assist the parent or Indian custodian since the emergency removal so
the child may be safely returned to the custody of the parent or Indian custodian, and
the specific actions the initiating party intends to take so the Indian child may be
returned safely without initiating an Indian child custody proceeding.
9. To facilitate the intent of this chapter, the agency, in cooperation with the Indian child's
tribe of affiliation, unless a parent objects, shall take steps to enroll the Indian child in
the tribe with the goal of finalizing enrollment before termination.