Okla. Admin. Code § 340:75-19-14

Current through Vol. 42, No. 4, November 1, 2024

Section 340:75-19-14 - Placement preferences for the Indian child

(a)Statutory authority for placement preferences for the Indian child. The Federal and State Indian Child Welfare Acts (ICWA) per Section 1915(a) and (b) of Title 25 of the United States Code ( 25 U.S.C. § 1915(a) and (b) ) and Section 40.6 of Title 10 of the Oklahoma Statutes (10 O.S. § 40.6 ) establish an order of placement preferences for foster care, pre-adoptive, and adoptive placement for Indian children. The placement preferences are in order of most preferable to least preferable. The order of placement preferences for foster and pre-adoptive placements differs from the order of placement preferences for adoptive placements. The court, when appropriate, considers the preferences of the extended family or siblings, the Indian child, or parent.

(b)Foster care or pre-adoptive placement preferences for the Indian child. The Indian child in foster care or pre-adoptive placements is placed:

(1) in the least restrictive, most family-like setting;

(2) in reasonable proximity to the child's home, extended family, or siblings;

(3) where the child's special needs, when any, may be met; and

(4) in the following descending order of preference, absent good cause to the contrary, with:

(A) a member of the Indian child's extended family;

(B) a foster home licensed, approved, or specified by the Indian child's tribe whether on or off the reservation, Indian country, or tribal land;

(C) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or

(D) an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs.

(c)Adoptive placement preferences for the Indian child. The Indian child in an adoptive placement is placed in the following descending order of preference, absent good cause to the contrary, with:

(1) a member of the child's extended family;

(2) other members of the Indian child's tribe; or

(3) other Indian families.

(d)Tribal authority to establish tribe-specific placement preferences.

Per 25 U.S.C. § 1915(c) of the Federal Indian Child Welfare Act (FICWA), the child's tribe may establish a different order of preference by resolution and the Oklahoma Department of Human Services (DHS) follows the tribe's order when the placement is the least restrictive setting appropriate to the child's needs.

(e)Utilization of the child's tribe to secure placement. Per 10 O.S. § 40.6, in the placement of the Indian child, DHS must utilize, to the maximum extent possible, the services of the child's Indian tribe in securing placement consistent with the provisions of the Oklahoma Indian Child Welfare Act.

(f)Good cause to modify placement preference. The state court must find, by clear and convincing evidence, that good cause exists to deviate from the placement preferences. The determination must be based on one of the following considerations, the:

(1) request of the parents, when both parents attest they reviewed the placement options that comply with the order of preference;

(2) request of the child, when the child is able to understand and comprehend the decision being made;

(3) extraordinary physical or emotional needs of the child, such as specialized treatment services that may be unavailable in the community where families who meet the criteria live, as established by testimony of a qualified expert witness; provided that extraordinary physical or emotional needs of the child does not include ordinary bonding or attachment that may have occurred as a result of a placement or the fact that the child has, for an extended amount of time, been in another placement that does not comply with FICWA; or

(4) unavailability of a placement after a showing by the applicable agency and a determination by the court that active efforts were made to find placements meeting the preference criteria, but none were located.

(g)Indian child's placement records. A record of each placement of an Indian child is maintained by DHS, evidencing the efforts to comply with the order of preference specified in 25 U.S.C. § 1915, and is made available at any time upon request of the Secretary of the Interior or the Indian child's tribe.

Okla. Admin. Code § 340:75-19-14

Added at 19 Ok Reg 2209, eff 6-27-02; Amended at 30 Ok Reg 839, eff 7-1-13

Amended by Oklahoma Register, Volume 33, Issue 24, September 1, 2016, eff. 9/15/2016