OAR 413-115-0130: Standards of Evidence and Minimum Qualifications for a Qualified Expert Witness

(1) Preponderance of the Evidence. Emergency removals. When requesting court authorization for emergency removal at a shelter hearing, the Department must demonstrate to the court that the Department has complied with OR ICWA Notice requirements, that removal of the Indian child or ward is in the Indian child ’s best interest, and that a preponderance of the evidence indicates that protective custody is necessary to prevent imminent physical damage or harm to the Indian child . (2) Clear and Convincing. (a) Foster care placement . Except during an emergency proceeding , when requesting court authorization for the placement of an Indian child in foster care, the Department must demonstrate, by clear and convincing evidence, that continued custody of the Indian child with the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child . The Department 's presentation of evidence must include the testimony of at least one QEW, as defined in section (3) of this rule. (b) Durable Guardianship finalization pursuant to ORS 419B.366. When requesting court appointment of a guardian pursuant to ORS 419B.366, the Department must demonstrate, by clear and convincing evidence, that continued custody of the Indian child with the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child . The Department 's presentation of evidence must include the testimony of at least one QEW, as defined in section (3) of this rule. (3) Beyond a Reasonable Doubt. (a) Permanent Guardianship finalization pursuant to ORS 419B.365. When requesting court appointment of a guardian pursuant to ORS 419B.365, the Department must demonstrate, by evidence beyond a reasonable doubt, that continued custody of the Indian child with the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child . The Department 's presentation of evidence must include the testimony of at least one QEW, as defined in section (3) of this rule. (b) Termination of parental rights . When requesting judicial termination of parental rights , the Department must prove, beyond a reasonable doubt, that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child, and t hat active efforts to reunite the Indian family did not eliminate the necessity for termination based on serious emotional or physical damage to the Indian child . The Department 's presentation of evidence must include the testimony of at least one QEW , as defined in section (3) of this rule. (4) Qualified expert witness ( QEW ). (a) A QEW must be qualified to testify regarding: (A) Whether the Indian child ’s continued custody by the Indian child ’s parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child ; and (B) The prevailing social and cultural standards and child rearing practices of the Indian child ’s tribe. (b) The Department must work with the Indian child 's tribe to determine who should be designated to testify as a QEW. If the Indian child 's tribe declines or is unable to designate a QEW , the following individuals, in order of priority, may testify as a qualified expert witness : (A) A member of the Indian child ’s tribe or another person of the tribe’s choice who is recognized by the tribe as knowledgeable of tribal customs regarding family organization , extensive knowledge of prevailing social and cultural standards and child rearing practices; (B) A person having substantial experience in the delivery of child and family services to Indian s and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child ’s tribe; or (C) Any person having substantial experience in the delivery of child and family services to Indian s and knowledge of prevailing social and cultural standards and child rearing practices in Indian tribe s with cultural similarities to the child ’s tribe. (c) Department staff may not serve as a QEW in any child custody proceeding .