Section YAE.02.12 — Emergency Custody

(a) Taking a Youth into Custody

(1) Any law enforcement officer or the ICW may take a youth into emergency custody when the law enforcement officer or the ICW determines that it is in the best interests of the youth and the law enforcement officer or ICW reasonably believes one or more of the following circumstances exists, has existed, or is likely to exist:

(A) The youth is suffering from illness, injury, sexual abuse, or is in immediate danger from his or her surroundings and removal from these surroundings is necessary.

(B) The youth will cause injury or harm to self or another, or to the property of another, or will be subject to injury or harm by another, or another child living or staying in the same household will be or has been subject to injury or harm by another.

(C) The youth's parent, guardian, or custodian is unavailable, unwilling, or unable to provide necessary supervision or care such that child's safety or well-being, or the safety or well-being of another youth living or staying in the same household is at imminent risk.

(D) The child has habitually run away from his parents, guardians, or custodians.

(E) The child is away or be taken away so as to be unavailable for further court proceedings.

(F) Emergency custody of the child would be permitted under the law of the state where the child is physically found at the time of the institution of emergency custody procedures.

(G) The child has been abandoned.

(H) The child has suffered or is likely to suffer serious psychological/emotional or physical harm inflicted upon the minor by his or her parent, guardian or custodian by other than accidental means or which is self-inflicted and which causes or creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions.

(I) For reasons other than poverty, has not been provided with adequate food, clothing, shelter, medical care, education or supervision by his or her parent, guardian or custodian necessary for the minor's health and well-being.

(J) Has a parent or guardian/custodian who requests tribal intervention and states that he or she is unable to care for, control, or provide the necessary special care or treatment for the child.

(K) Has been committing delinquent acts with parental pressure, acquiescence, guidance or approval.

(L) Has been committing delinquent acts and is under the age of twelve (12) years.

(M) Has engaged in conduct otherwise prohibited to minors and whose parent, guardian or custodian fails to correct or regulate such conduct.

(N) Is suffering emotional damage for which the parent(s) or guardian is unwilling to provide treatment, which is evidenced by one or more of the following characteristics:

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) outwardly aggressive behavior; or

(O) Has been placed for care or adoption in violation of the Indian Child Welfare Act of 1978.

(P) Another child who resides in the child's home, or has regular contact with the home or its residence is subject to one or more of the above conditions.

(2) Any law enforcement officer or the ICW who takes a youth into emergency custody must file an emergency petition with the court by the end of the next business day, or the youth must be returned to the family.

(3) The Tribe shall make reasonable efforts to notify all affected persons of the emergency petition and date and time of the emergency court hearing.

(4) Any person taking a youth into emergency custody shall immediately attempt to notify the ICW and parent, guardian or custodian by the most practical means, and shall continue to reasonably make such attempts until notification is made. The physical location of the child(ren) need not be disclosed to the parent, guardian or custodian if the notifying person reasonably believes that providing such information will imminently endanger the child.

(5) The agency taking a youth into emergency custody shall have the authority to make all decisions regarding the care and well-being, and placement of the youth until the youth is released from custody by order of the court.

(b) Emergency Court Hearing

(1) The court must have an emergency hearing within the next two business days to determine if the court has jurisdiction; if Tribe has made reasonable efforts to provide notice of the emergency hearing; and, whether probable cause exists to believe that the youth is in need of care.

(2) The court shall advise the child, the parents, guardian or custodians, of the allegations made, the possible consequences of the hearing, the right of counsel at a party's own expense, the right to confront and cross-examine witnesses, and the right to present evidence, including witnesses.

(3) If the court determines that the court does not have jurisdiction; the Tribe has not made reasonable efforts to notify the affected persons; or, probable cause does not exist to believe that youth is in need of care, the court shall dismiss the petition and the youth shall be returned to the parent, guardian, or custodian.

(4) If the court determines that the court has jurisdiction, the Tribe has made reasonable efforts to notify the affected persons, and probable cause exists to believe that the youth is in need of care because one or more of the conditions in Section YAE.02.12(a)(1), the court shall issue an order identifying:

(A) That the court has jurisdiction,

(B) Reasonable efforts have been made to notify the affected persons,

(D) If other Indian tribe(s) needs to be noticed,

(E) The custody of the youth(s).

(F) The physical placement of the youth(s),

(G) An appointment of a guardian ad litem,

(H) The date of the Section YAE.02.15 fact finding (to be scheduled within calendar 30 days) and the date of the Section YAE.02.16 dispositional hearing,

(I) Any other special conditions, and,

(J) The signature of the judge.