E. Removal and Hearing
If the child's Indian status is discovered at the time of removal, an ICWA compliant affidavit should be filed at the earliest possible time (either at the emergency removal or at the 14 day Adversary Hearing).
A significant change made by the new Guidelines is only allowing temporary emergency orders for up to 30 days (unless there are extraordinary circumstances). “Temporary emergency custody should not be continued for more than 30 days. Temporary emergency custody may be continued for more than 30 days only if: (1) A hearing, noticed in accordance with these guidelines, is held and results in a determination by the court, supported by clear and convincing evidence and the testimony of at least one qualified expert witness, that custody of the child by the parent or Indian custodian is likely to result in imminent physical damage or harm to the child; or (2) Extraordinary circumstances exist.” At that hearing, the court must make the necessary findings to warrant a “foster care placement.” See Conservatorship or Termination of Parental Rights of an Indian Child, below.