There’s a lot of discussion about what the standards for removal are in an ICWA case at the first (emergency/24/48/72 hour/prelim/shelter care) hearing after a child is removed. This is the question of the Oglala Sioux v. Van Hunnik federal case. The federal regulations state that the standard is the one found in 25 U.S.C. 1922–whether the emergency placement is no longer necessary to prevent imminent physical damage or harm to the child. 81 Fed. Reg. at 38872.

The Kansas Court of Appeals agrees (In re D.E.J.):

The ICWA is clear that there are two ways to remove Indian children from their homes. The first method allows removal if two factors are satisfied: (1) the State proves that it engaged in active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and the efforts were unsuccessful; and (2) the court makes a determination supported by clear and convincing evidence, including the testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912. Here, the State did not prove active efforts. And the magistrate judge did not use the expert witness’ testimony to support her determination that the children were in need of care. Thus, removal was inappropriate under 25 U.S.C. § 1912.

The second method of removal under the ICWA is emergency removal. Removal is appropriate under this method if the State proves that it is necessary to prevent imminent physical damage or harm to the child. 25 U.S.C. § 1922. While the district court made a finding that the children faced imminent harm at the initial removal, the district court did not find that the children faced imminent harm months later at the adjudication hearing. And the State did not present evidence that the children faced imminent danger at the time of the adjudication hearing. So, removal could not be legally effectuated under 25 U.S.C. § 1922.

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The ICWA is very clear in requiring a finding of imminent physical harm or danger before allowing emergency removal. The ICWA is also clear that the traditional method of removal requires the State to engage in active efforts. The magistrate judge did not find that the State engaged in active efforts or that the children faced imminent physical harm, so she did not make sufficient findings under the ICWA to support continued removal.

(Emphasis in original)