Or. Admin. Code § 413-115-0040

Current through Register Vol. 63, No. 12, December 1, 2024

Section 413-115-0040 - Inquiry and Actions to Determine a Child's Tribal Membership Under the ORICWA

(1) When the Department receives screening information under OAR 413-015-0205, the screener must inquire whether the child is an Indian child. The screener must document the reporter's response and search the Department's information system to determine if the child(ren) has American Indian or Alaskan Native ancestry. If the screener receives information that the child may be an Indian child, and the tribe(s) is named, the screener must send a copy of the screening report to the tribe(s) within 24 hours after the screening decision is complete.

(2) The agency must inquire into whether the child is an Indian child and must work with the: child, the parent, the parents, Indian Custodian, any person having custody of the child or whom the child resides with, extended family members of the child, and any other person who may reasonably be expected to have information regarding the child's membership or eligibility for membership in an Indian tribe to gather detailed information regarding:

(a) Tribal affiliation, membership;

(b) Whether the child is or has been a ward of a tribal court; and

(c) The child's or the child's parents' or Indian custodian's domicile.

(3) If, during ODHS inquiry under subsection (2), or at any time during an open child welfare case the Department receives information that the child is or may be an Indian child under the ORICWA, the Department must work with the child's parents or Indian custodian to gather detailed information regarding the child's eligibility for tribal membership.

(4) When information regarding potential tribal membership or enrollment is received under subsection (1), (2) or (3) of this rule and the provisions of the OR ICWA apply, the Department must:

(a) After receiving information regarding tribal membership or enrollment, document the information on a form approved by the Department; and

(b) Submit written notification of initial contact and inquiry regarding the child's membership or enrollment eligibility to the tribe(s) designated ORICWA Agent(s) in which the child is or may be eligible for membership.

(A) Oregon tribes. Notification of initial contact and inquiry must be sent to the appropriate tribe(s) within one business day of receiving the information regarding tribal membership.

(B) Out-of-state tribes. The search for the appropriate tribal contact(s) must be initiated within two business days of receiving the information regarding tribal membership. Notification of initial contact and inquiry must be sent to the appropriate tribe(s) within five business days of receiving the information regarding tribal membership.

(c) Inquiry submitted under subsection (4)(b) of this rule must include all of the following information, if known:

(A) The name, birthdate and birthplace of the child.

(B) The child's domicile and residence.

(C) Whether the child is a ward of a tribal court.

(D) The name of each Indian tribe in which the child is a member (or may be eligible for membership if a biological parent is a member).

(E) All known names (including maiden, married, former or aliases), birthdates, birthplaces and tribal enrollment members of both biological parents and direct lineal ancestors.

(5) When making an inquiry under this section, the Department must request that any tribe receiving information under this section keep documents and information regarding the inquiry confidential if a consenting parent in an adoption proceeding under ORS 109.304 to 109.410 requests anonymity. A consenting parent's request for anonymity does not relieve the court or any party in an adoption proceeding from the duty to verify whether the child is an Indian child.

(6) When additional consultation is needed, the caseworker or Department staff may contact the Tribal Affairs Unit.

(7) The Department must document each action to determine the child's Tribal membership status in the Department's information system by the conclusion of the assessment.

(8) The Department must continue to inquire to obtain a child's status regarding tribal membership or eligibility for membership until the documented determination required under OAR 413-115-0030 is completed.

(9) When the Department receives confirmation that the child is a member or eligible for membership, the case must be managed according to the provisions of the ORICWA and OAR 413-115-0030(2).

(10) The Department must submit to the court a report, declaration, or testimony on the record that the Department or other party used due diligence to identify and work with all the tribes of which there is reason to know the child may be a member or be eligible for membership to verify whether:

(a) The child is a member; or

(b) The child is eligible for membership and is the biological child of a member.

Or. Admin. Code § 413-115-0040

CWP 2-2017(Temp), f. & cert. ef. 2-7-17 thru 8-5-17; CWP 9-2017, f. 8-5-17, cert. ef. 8/6/2017; CWP 123-2018, amend filed 12/12/2018, effective 12/12/2018; CWP 148-2020, temporary amend filed 12/31/2020, effective 1/1/2021 through 6/29/2021; CWP 16-2021, amend filed 06/29/2021, effective6/29/2021; CWP 32-2021, amend filed 12/30/2021, effective 1/1/2022

Statutory/Other Authority: ORS 418.005 & ORS 409.050

Statutes/Other Implemented: ORS 418.005