Or. Admin. R. 413-140-0028

Current through Register Vol. 63, No. 6, June 1, 2024

Section 413-140-0028 - ORICWA Requirements for Inquiry, Verification, Notice and Placement Preference

(1) Inquiry and Verification.

(a) The petitioner must inquire and document using Form 1270A, Verification of American Indian/Alaska Native Membership or Enrollment for Non-Departmental Adoptions, whether the child is or may be an Indian child.

(b) The inquiry must include consultation with the child, the child's parents, any Indian Custodian, extended family members of the child, any person having custody of the child or with whom the child resides, 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) The child's tribal affiliation and membership or eligibility for 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.

(c) If, during the inquiry under section (1)(a) of this rule, or at any time, the petitioner receives information that the child is or may be an Indian child under the ORICWA, the petitioner must gather detailed information from the individuals identified in section (1)(a) of this rule regarding the child's eligibility for tribal membership.

(d) 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.

(2) Notice.

(a) If there is reason to know the child in an adoption proceeding is an Indian child, the petitioner must:

(A) Promptly send notice of the proceeding as described in section (2)(b) of this rule; and

(B) File an original or a copy of each notice sent under section (2)(b) of this rule with the court, together with any return receipts or other proof of service.

(b) Notice under section (2)(a) of this rule must:

(A) Be sent to:

(i) Each tribe of which the child may be a member or of which the Indian child may be eligible for membership;

(ii) The child's parents;

(iii) The child's Indian custodian, if applicable; and

(iv) The appropriate United States Bureau of Indian Affairs Regional Director listed in 25 C.F.R. 23.11(b), if the identity or location of the child's parents, Indian custodianor tribe cannot be ascertained.

(B) Be sent by registered or certified mail, return receipt requested.

(C) Be in clear and understandable language and include the following:

(i) The child's name, date of birth and place of birth;

(ii) To the extent known, all names, including maiden, married and former names or aliases, of the child's parents, the parents' birthplaces and tribal enrollment numbers;

(iii) To the extent known, the names, dates of birth, places of birth and tribal enrollment information of other direct lineal ancestors of thechild;

(iv) The name of each Indian tribe of which the child is a member or in which the Indian child may be eligible for membership;

(v) If notice is required to be sent to the United States Bureau of Indian Affairs under section (2)(b)(A) (iv) of this rule, to the extent known, information regarding the child's direct lineal ancestors, an ancestral chart for each biological parent, and the child's tribal affiliations and blood quantum;

(vi) A copy of the petition initiating the proceeding and, if a hearing has been scheduled, information on the date, time and location of the hearing;

(vii) The name of the petitioner and the name and address of the petitioner's attorney;

(viii) A statement that the child's tribe may intervene in the proceeding;

(ix) A statement that the child's parent, Indian custodian or tribe has the right to petition the court to transfer the proceeding to the tribal court;

(x) A statement describing the potential legal consequences of the proceeding on the future parental and custodial rights of the parent or Indian custodian;

(xi) The mailing addresses and telephone numbers of the court and contact information for all parties to the proceeding and individuals notified under this section; and

(xii) A statement that the information contained in the notice is confidential and that the notice should not be shared with any person not needing the information to exercise rights under the ORICWA.

(c) If there is reason to know the child is an Indian child, the petitioner must file a declaration of compliance of notice with the court in compliance with ORS 109.285 and 109.385(1) and Oregon Laws 2021. ch. 398, sections 8 and 9, and provide copies of each notice sent and any return receipts or proof of service.

(3) Placement Preferences.

(a) If there is reason to know the child is an Indian child, the child must be placed in accordance with placement preferences under ORS 109.285 and 109.278, or the petitioner must file a good cause motion with the court seeking a departure from the placement preferences.

(b) When there is reason to know a child is an Indian child, the child must be placed in the least restrictive setting which:

(A) Most closely approximates a family, taking into consideration sibling attachment;

(B) Allows the Indian child's special needs, if any, to be met;

(C) Is in reasonable proximity to the Indian child's home, extended family or siblings; and

(D) Is in accordance with the order of preference established by the Indian child'stribe. If the Indian child's tribe does not have established placement preferences, placement preferences are as follows:

(i) With an extended family member of the Indian child;

(ii) With other members of the Indian child's tribe; or

(iii) With other Indian families.

(4) Documentation of Inquiry, Notice and Placement Preferences. Documentation that a petitioner may submit to the court to document compliance with the inquiry, notice and placement requirements of the ORICWA may include but is not limited to:

(a) Descriptions of consultations the petitioner made with individuals identified in section (1) of this rule;

(b) Descriptions of any oral responses and copies of any written responses the petitioner obtained from the notice provided in section (2) of this rule;

(c) Copies of any of the following items:

(A) Identification cards;

(B) Enrollment/Membership/Citizenship cards;

(C) Certificate Degree of Indian Blood (CDIB) card;

(D) Tribal court records regarding the Indian child;

(E) Reports, declarations, or testimony on the records documenting the due diligence of the petitioner to identify and work with all the tribes which petitioner has reason to know that the child may be eligible for membership; or

(F) Any other records indicating the membership of the child or child's parent in an Indian tribe

(d) Copies of any tribal court records regarding the child;

(e) Any reports, declarations or testimony on the record documenting the petitioner's due diligence to identify and work with all tribes the petitioner has reason to know that the child may be a member or eligible for membership; and

(f) Any declarations of compliance or notices sent by petitioner.

Or. Admin. R. 413-140-0028

CWP 1-2022, temporary adopt filed 01/03/2022, effective 1/3/2022 through 7/1/2022; CWP 11-2022, adopt filed 06/23/2022, effective 7/1/2022

Statutory/Other Authority: ORS 418.005 & ORS 409.050

Statutes/Other Implemented: ORS 418.005