Texas Child Protection Law Bench Book

2023 version: As effective November 1, 2023

F. Emergency Removal

If an emergency removal is necessary “to prevent imminent physical damage or harm to [an Indian] child,” the petition or supporting documents must contain specific information including the child or family's Tribal affiliation, the specific imminent physical damage or harm, and the active efforts made to prevent the removal and to return the child to the home. 25 C.F.R. § 23.113(d). DFPS has an ICWA removal affidavit which conforms to these requirements.

An emergency removal must be terminated as soon as it is no longer necessary to prevent the imminent physical harm. An emergency removal will terminate on the:

•   Filing of a child-custody proceeding,

•   Transfer of the case to the Tribe's jurisdiction, or

•   Return of the child to the parent or Indian custodian.

If a child is not returned home or the case is transferred to the Tribe, all proceedings must comply with ICWA. If a party asserts or the court has reason to believe an “Indian child” may have been improperly removed or retained, the court must terminate the proceedings unless returning the child would subject the child to "substantial and immediate danger or threat of such danger." 25 C.F.R. § 23.113(a) and (c).[74]