§ 32A-28-13 — Pending court proceedings; notice; standards of

evidence; documentation of applicability and compliance. A. The court shall not make findings of futility or aggravated circumstances in the child custody proceeding. B. The standards of evidence of the following child custody proceedings are as follows: (1) the court shall not order a foster care placement of an Indian child at adjudication unless clear and convincing evidence is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent, guardian or Indian custodian is likely to result in serious emotional or physical damage to the child; (2) the court shall not order a termination of parental rights for an Indian child unless evidence beyond a reasonable doubt is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent, guardian or Indian custodian is likely to result in serious emotional or physical damage to the child; (3) for a foster care placement at adjudication or termination of parental rights, the evidence shall 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; and (4) without a causal relationship identified in Paragraph (3) of this subsection, 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 shall not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child. C. If there is a reason to know that the Indian child's parent, guardian or Indian custodian has limited English proficiency and may not understand the contents of the notice pursuant to Subsection A of this section, the court shall provide language access services as required by Title 6 of the federal Civil Rights Act of 1964 and other applicable federal and state laws. If the court is unable to secure translation or interpretation support, the court shall contact or direct a party to contact the Indian child's tribe or the local office of the United States department of the interior bureau of Indian affairs for assistance identifying a qualified translator or interpreter. D. If the identity or location of the parent, guardian or Indian custodian and the Indian tribe cannot be determined, a notice shall be given to the secretary in the same manner as provided in Subsection A of this section. The secretary shall have fifteen days after receipt of the notice to provide the same notice to the parent, guardian or Indian custodian and the Indian tribe. E. A foster care placement or termination of parental rights proceeding shall not be held until at least ten days after receipt of notice by the parent, guardian or Indian custodian and the Indian tribe or the secretary pursuant to this section; provided that the parent, guardian or Indian custodian or the Indian tribe shall, upon request, be granted up to twenty additional days to prepare for that proceeding. F. Nothing in this section prevents a court from reviewing a removal of an Indian child from the child's parent, guardian or Indian custodian at an emergency custody proceeding before the expiration of the waiting periods provided in Subsections D and E of this section to determine the appropriateness of the removal and potential return of the child.

Legislative History

Laws 2022, ch. 41, § 13.