• Foreword
• Table of Contents
• Introduction

§5.14 Removal of Child

[1] Reasonable Efforts to Prevent Removal
[2] Grounds for Removal
[3] Prima Facie Evidence
[4] Sibling’s Rights

[1] Reasonable Efforts to Prevent Removal

Before you order a child removed from the home, you must find that reasonable efforts to prevent removal were made. [WIC §361(d); CRC 5.695(e).]

A different standard of proof is required to remove an Indian child from his or her parents or Indian custodian; there must be evidence of active efforts designed to prevent the breakup of the Indian family that have proved unsuccessful. [WIC §361.7(a).]

In a case governed by ICWA, the court must make a finding that active efforts to provide remedial services and rehabilitative programs were provided before issuing an order placing the child in foster care even in circumstances where the court could deny services to a parent in a non–ICWA case, such as when a parent has been convicted of a prior violent felony [see WIC §361.5(b)(12)]. Further active efforts to provide remedial services is not required only in circumstances when a parent’s history indicates futility of offering services, and when providing such services would be an idle act that would not further the legislative purposes of ICWA. [In re K.B. (2009) 173 CA4th 1275, 1284; WIC §361.7(a).]

Active efforts are assessed on a case–by–case basis, and 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, and utilizes the available resources of the Indian child’s extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers. [WIC §361.7(b).] There is no pat formula for distinguishing between active and passive efforts, but a guideline for passive efforts are when a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition, while active efforts are when a state caseworker takes the client through the steps of the plan rather than requiring that the client perform the plan on his or her own. [In re K.B. (2009) 173 CA4th 1275, 1287.]

Title IV-E Title IV-E

[2] Grounds for Removal

To remove the child from a custodial parent or guardian, you must find one or more of the following five statutory grounds by clear and convincing evidence:

1. Substantial danger. Leaving or returning the child home will cause a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being, and there are no reasonable means to protect the child without removal [WIC §361(c)(1); CRC 5.695(d)(1)];
2. Unwilling to assume custody. The parent or guardian is unwilling to assume physical custody of the child and was notified that the child might be declared permanently free of parental custody and control if he or she remains outside the home for a statutory period [WIC §361(c)(2); CRC 5.695(d)(2); see WIC §366.26(c)(1)];
3. Severe emotional damage. The child is suffering from severe emotional damage that requires removal from the home [WIC §361(c)(3); CRC 5.695(d)(3)];
4. Sexual abuse. The child or a sibling was sexually abused, or is at substantial risk of sexual abuse, by the parent, guardian, household member, or other person known to the parent, and there are no reasonable means to protect the child without removal or the child does not wish to return home [WIC §361(c)(4); CRC 5.695(d)(4)]; or
5. No support or care. The child was left without provision for support, an incarcerated or institutionalized parent cannot arrange for the child’s care, or a relative or adult custodian with whom the child was left is unwilling or unable to care for or support the child and the parent cannot be located despite reasonable efforts [WIC §361(c)(5); CRC 5.695(d)(5)].

As one reasonable means of protecting the child, you must consider the option of removing the offending parent from the home, or permitting the nonoffending parent to retain physical custody as long as he or she presents you with an acceptable plan to protect the child from future harm. [WIC §361(c)(1).] You may also issue temporary or permanent restraining orders to help protect the child. [See WIC §213.5.]

You may not base out-of-home placement on a concern that reunification efforts may fail, or as a means of securing cooperation with those efforts. [In re Henry V. (2004) 119 CA4th 522, 525, 529–530.]

A parent need not be dangerous and the child need not have been actually harmed for removal of the child from the home to be appropriate. [In re Cole C. (2009) 174 CA4th 900, 917.]

You may not remove an Indian child absent clear and convincing evidence, including the testimony of a qualified expert witness, that continued custody is likely to result in serious emotional or physical damage to the child. [WIC §361.7(c); CRC 5.484.]

[3] Prima Facie Evidence

If you declare a child under the age of five to be a dependent because he or she suffered severe physical abuse by a parent or a person known by the parent [see WIC §300(e); §4.02], that fact constitutes prima facie evidence that the minor cannot safely be left with the custodial parent. [WIC §361(c)(1).]

Prima facie evidence creates a rebuttable presumption, shifting the burden of producing evidence to the parent or guardian.

[4] Sibling’s Rights

If you order a child removed from the home, you must consider whether the child has siblings under your jurisdiction. If so, you must consider [WIC §361.2(i)]:

• The nature of the sibling relationship;
• Whether it is appropriate to develop and maintain the relationship; and
• The impact of the sibling relationships on placement and permanency planning.

You should make orders regarding sibling placement, visitation, and interaction as appropriate. [See WIC §16002(b), (f).]

Be aware that children can be siblings because they share a biological parent, even though they do not share a legal parent. [In re Miguel A. (2007) 156 CA4th 389, 394.]

Review Question

Evan B., who has no siblings, is declared a dependent at the disposition hearing, ordered removed from his home, and placed in a foster home. Are the following findings sufficient under state and federal law to support the removal and placement?

1. Reasonable efforts were made to prevent or eliminate the need for removal;
2. One or more statutory grounds for removal were shown by clear and convincing evidence; and
3. Reasons why Evan was not placed with a relative.