The court must find by preponderance of the evidence:

• Separation of the child from the parent or guardian is in the best interests of the child;
• Continuation of the child in the home would be contrary to the child’s best interests;
• There has been compliance with reasonable efforts requirements regarding removal of the child from the home, as follows:
• Reasonable efforts have been made to prevent or eliminate the need for removal of the child from the home; or
• An emergency situation exists that requires the immediate temporary removal of the child from the home, and it is reasonable that preventive efforts not be provided due to the emergency situation; or
• Reasonable efforts to prevent the child’s removal from the home are not required because:
• The parent has subjected the child to “aggravated circumstances” as described in section 19-3-604(1) and (2), such as someone abandoned, tortured, chronically abused, or sexually abused the child; or
• The parental rights of the parent with respect to a sibling of the child have been involuntarily terminated; or
• The parent has been convicted of any of the following crimes:
• Murder of another child of the parent;
• Voluntary manslaughter of another child of the parent;
• Aiding, abetting, attempting, conspiring, or soliciting to commit the crimes or murder or voluntary manslaughter of the child or another child of the parent;
• Felony assault resulting in serious bodily injury to the child or to another child of the parent.
• Reasonable efforts have been made or will be made to reunite the child and family; or
• Efforts to reunite the child and family have failed;
• Procedural safeguards with respect to parental rights have been applied in connection with the removal of the child from the home, a change in the child’s placement out of the home, and any determination affecting parental visitation.

• Were services offered to the family to return the child home safely?
• If not, was it detrimental to the child to offer services?
• If reunification services were offered:
• What was the treatment plan?
• Was it developed with the family’s participation?
• Were the services offered relevant to the family’s problems?
• Were they adequate to address those problems?
• Were the services made accessible to the family?
• Were the efforts diligently made?
• Were multiple services well coordinated?
• Were there other cost-effective services that should have been offered?
• Did DHS encourage visitation consistent with any court orders

To transfer custody of an Indian child, special findings are required. If DHS has or seeks custody of an Indian child, it must prove by clear and convincing evidence with expert testimony that the child will suffer emotional or physical harm if returned home. It must also prove it made active efforts to prevent the placement. 

The court must place the child in the most appropriate setting. The placement should meet the needs of the child, family and community. The court must consider DHS’ evaluation for placement.

• Child’s safety;
• Least restrictive environment;
• Appropriate to child’s needs;
• Near parents/community;
• Educational needs of child;
• Cultural considerations;
• Family’s religious preferences;
• Availability and costs;
• Sibling placement.

If the court transfers custody to DHS, it must order the parents to pay a fee to cover the costs of residential care. The order applies to the entire period of placement. The amount is based on the child support guidelines.