Okla. Admin. Code § 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.
Notes
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