Rule 5.678.Findings in support of detention; factors to consider; reasonable efforts; active efforts; detention alternatives

The rule starts from release. The court must order the child released from custody unless it makes the findings the statute specifies — and, where it knows or has reason to know the child is an Indian child, the additional statutory finding. In deciding, it must consider the statutory factors.

The efforts finding is required whether or not the child is detained. The court must determine whether reasonable efforts were made to prevent or eliminate the need for removal and find either that they were or that they were not. For an Indian child it must also determine whether active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and whether those efforts succeeded — documenting them in detail in the record and finding that active efforts were made and succeeded, were made and did not succeed, or were not made, and ordering the department to initiate or continue services.

Then a second inquiry: are there services available that would prevent the need for further detention? The court must not order detention unless, after asking, it finds there are no reasonable services that would prevent or eliminate the need to detain or that would let the child go home.

If the child is detained, temporary care and custody are vested with the county welfare department pending disposition, in a written order or on the record, along with the other statutory findings. In deciding whether the placement complies with less disruptive alternatives, the court must also consider whether measures exist to reduce the disruption of removal and whether they have been used — and may weigh whether the current placement can accommodate the visitation schedule, whether it disrupts extracurricular activities or medical, dental, mental health or educational services, whether it lets the child observe their religious or cultural practices, and whether it can meet the child’s special needs.