Okla. Admin. Code § 340:75-6-40.9 - Termination of parental rights (TPR)
(a)
Effect of
TPR. Per Section 1-4-906 of Title 10A of the Oklahoma Statutes (10A O.S.
§ 1-4-906), TPR terminates the parent-child relationship including the
parent's right to:
(1) custody of the
child;
(2) visit the
child;
(3) control the child's
training and education;
(4) apply
for guardianship of the child;
(5)
consent to the child's adoption;
(6) the child's earnings; and
(7) inherit from or through the child;
although, termination of parental rights does not affect the child's right to
inherit from the parent.
(b)
Legal grounds for termination of
parental rights.
(1) Per 10A O.S.
§ 1-4-904, a court may not terminate a parent's parental rights unless the
child is adjudicated deprived prior to, or concurrent with, TPR proceedings,
and the court makes the finding that TPR is in the child's best
interests.
(2) Per 10A O.S. §
1-4-901, a TPR petition or motion may be filed by the district attorney (DA) or
by the attorney for the child alleged to be or adjudicated deprived.
(3) Per 10A O.S. § 1-4-904, the court
may terminate parental rights on the grounds listed in (A) through (Q) of this
paragraph.
(A)
Consent. The
parent may consent to termination of his or her parental rights by signing a
voluntary consent form to relinquish parental rights.
(i) The written, voluntary consent signed
under oath, recorded before a judge of a court of competent jurisdiction, is
not revocable unless the parent can provide clear and convincing evidence that
the consent was executed by reason of fraud or duress.
(ii) In any proceeding for a voluntary TPR to
an Indian child, the parent's consent may be withdrawn for any reason at any
time prior to the entry of a final decree of termination. Any consent given
prior to or within 10-calendar days after the birth of the Indian child is not
valid.
(B)
Abandonment. The court may find that the parent who is entitled to
custody of the child has abandoned the child.
(C)
Abandonment of an Infant.
The court may find that the child, 12 months of age and younger, was
abandoned.
(D)
Non-compliance
with voluntary placement agreement. The court may find that the child's
parent:
(i) voluntarily placed physical
custody of the child with Oklahoma Human Services (OKDHS) or a child-placing
agency for out-of-home placement;
(ii) has not complied with the placement
agreement; and
(iii) during the
child's period of voluntary out-of-home placement, has not demonstrated a firm
intent to resume physical custody of the child or make other permanent legal
arrangements for the child's care.
(E)
Failure to correct
condition(s). The court may find that the parent failed to correct the
condition(s) that led to the child's adjudication as a deprived child although
the parent was given at least three months to correct the
condition(s).
(F)
Same
conditions - another child. The court may find that another child of a
parent whose parental rights to any other child were terminated and the
conditions that led to the prior TPR were not corrected.
(G)
Failure to support. The
court may find that the non-custodial parent has willfully failed, refused, or
neglected to contribute to the child's support for at least six out of the last
12 months immediately preceding the filing of the termination petition or
motion:
(i) as specified by a court order for
child support, or
(ii) according to
the parent's financial ability to support the child, when an order for child
support does not exist. Incidental or token support is not construed or
considered when determining if the parent maintained or contributed to the
child's support.
(H)
Certain criminal convictions. The court may find a parent has a
conviction in a criminal action, in any state, of any of the following acts:
(i) permitting a child to participate in
pornography;
(ii) rape or rape by
instrumentation;
(iii) lewd
molestation of a child younger than 16 years of age;
(iv) child abuse or neglect;
(v) enabling child abuse or
neglect;
(vi) causing the death of a
child as a result of the physical or sexual abuse, chronic abuse, or chronic
neglect of the child;
(vii) causing
the death of the child's sibling as a result of the physical or sexual abuse,
chronic abuse, or chronic neglect of the child's sibling;
(viii) murder of any child or aiding or
abetting, attempting, conspiring, or soliciting to commit murder of any
child;
(ix) voluntary manslaughter
of any child;
(x) a felony assault
that resulted in serious bodily injury to the child or another child of the
parents; or
(xi) murder or
involuntary manslaughter of the child's parent or aiding or abetting,
attempting, conspiring, or soliciting to commit murder of the child's
parent.
(I)
Heinous
or shocking abuse or neglect. The court may find that a parent has
abused or neglected any child or failed to protect any child from abuse or
neglect that is heinous or shocking.
(J)
Prior abuse or neglect. The
court may find that a parent previously abused or neglected the child or the
child's sibling, or failed to protect the child or sibling from abuse or
neglect and the child or sibling was subjected to subsequent abuse.
(K)
Rape by the parent. The
court may find the child was conceived as a result of a rape perpetrated by the
parent whose rights to the child are sought to be terminated.
(L)
Incarceration. While a
parent's incarceration in and of itself is not sufficient to deprive a parent
of parental rights, the court may find continued parental rights of an
incarcerated parent whose rights are sought to be terminated would result in
harm to the child based on the consideration of factors including, but not
limited to, the:
(i) duration of
incarceration and its detrimental effect on the parent-child relationship;
(ii) previous convictions resulting
in involuntary confinement in a secure facility;
(iii) history of criminal behavior, including
crimes against children;
(iv) the
child's age;
(v) evidence of abuse
or neglect or failure to protect the child or the child's siblings by the
parent;
(vi) current relationship
between the parent and child; and
(vii) manner in which the parent exercised
parental rights and duties in the past.
(M)
Behavioral health illness or
incapacity. The court must find the factors in (i) and (ii) of this
subparagraph exist.
(i) The parent has a
diagnosed cognitive disorder, an extreme physical incapacity, or a medical
condition, including behavioral health or substance dependency, that renders
the parent incapable of adequately and appropriately exercising parental
rights, duties, and responsibilities within a reasonable time, considering the
child's age. A finding that a parent has a diagnosed cognitive disorder, an
extreme physical incapacity, or a medical condition, including behavioral
health or substance dependency, does not in and of itself deprive the parent of
parental rights.
(ii) Allowing the
parent to have custody would cause the child actual harm or harm in the near
future. A parent's refusal or non-compliance with treatment, therapy,
medication, or assistance for the condition can be used as
evidence.
(N)
Prior
adjudication of same conditions. The court may find the:
(i) condition that led to the deprived
adjudication was the subject of a previous deprived adjudication of this child
or this child's sibling; and
(ii)
parent was given an opportunity to correct the conditions that led to the
determination of the initial deprived child.
(O)
Substantial erosion of parent-child
relationship. The court may find a substantial erosion of the
relationship between the parent and child exists caused at least in part by:
(i) the parent's serious or aggravated
neglect of the child, physical or sexual abuse, or sexual exploitation of the
child;
(ii) a prolonged and
unreasonable absence of the parent from the child; or
(iii) the parent's unreasonable failure to
visit or communicate in a meaningful way with the child.
(P)
Lengthy foster care of child years
of age and older.
(i) The court may
find:
(I) a child years of age and older at
the time of placement was placed in foster care by OKDHS for 15 of the most
recent 22 months preceding the filing of the TPR petition or motion;
and
(II) at the time of the filing
of the TPR petition or motion, the child cannot be safely returned to the home
of the parent.
(ii) A
child is considered to have entered foster care on the earlier of the:
(I) adjudication date; or
(II) date 60-calendar days after the date the
child was removed from his or her home.
(Q)
Lengthy foster care of a child
younger than 4 years of age.
(i) The
court may find a child younger than 4 years of age at the time of placement:
(I) was placed in foster care by OKDHS for at
least six of the 12 months preceding the filing of the TPR petition or motion;
and
(II) the child cannot be safely
returned to the home of the parent.
(ii) A child is considered to have entered
foster care on the earlier of the:
(I)
adjudication date; or
(II) date
60-calendar days after the date the child was removed from his or her
home.
(iii) The court may
consider:
(I) circumstances of the parent's
failure to develop and maintain a parental bond with the child in a meaningful,
supportive manner; and
(II) if
allowing the parent to have custody would likely cause the child actual serious
psychological harm or harm in the near future as a result of the child's
removal from the substitute caregiver due to the existence of a strong,
positive bond between the child and
caregiver.
(c)
Mandatory petition or motion for
TPR. Per 10A O.S. § 1-4-902, the DA is required to file a petition
or motion to terminate the parent-child relationship and parental rights with
respect to a child joins in the petition or motion, when filed by the child's
attorney in any of the circumstances detailed in (1) through (4) of this
subsection.
(1)
The child is in
out-of-home care for 15 out of the most recent 22 months. Prior to the
end of the fifteenth month, the child was placed in foster care by OKDHS for 15
of the most recent 22 months. The child is considered to have entered foster
care on the earlier date:
(A) of adjudication
as a deprived child; or
(B)
60-calendar days after the date the child was removed from his or her
home.
(2)
The child
is determined to be an abandoned infant. A petition or motion to TPR is
filed no later than 60-calendar days after the child is judicially determined
to be an abandoned infant.
(3)
Reasonable efforts to reunite are not required due to certain felony
convictions of the parent. A TPR petition or motion is filed no later
than 60-calendar days after the court determines that reasonable efforts to
reunite are not required due to a parent's felony conviction of any of the
following acts:
(A) permitting a child to
participate in pornography;
(B)
rape, or rape by instrumentation;
(C) lewd molestation of a child younger than
16 years of age;
(D) child abuse or
neglect;
(E) enabling child abuse
or neglect;
(F) causing a child's
death as a result of the physical or sexual abuse, chronic abuse, or chronic
neglect of the child;
(G) causing
the death of the child's sibling as a result of the physical or sexual abuse,
chronic abuse, or chronic neglect of the child's sibling;
(H) murder of any child or aiding or
abetting, attempting, conspiring in, or soliciting to commit murder of any
child;
(I) voluntary manslaughter
of any child;
(J) a felony assault
that resulted in serious bodily injury to the child or another child of the
parent; or
(K) murder or voluntary
manslaughter of the child's parent, or aiding or abetting, attempting,
conspiring in, or soliciting to commit murder of the child's parent;
or
(4)
The parent
made no measurable progress in correcting conditions. No later than
90-calendar days after the court ordered the individualized service plan, the
court may file a TPR petition when the parent has made no measurable progress
in correcting the conditions that caused the child to be adjudicated
deprived.
(d)
DA
not mandated to file petition or motion to TPR under certain conditions.
Per 10A O.S. § 1-4-902, when any of the conditions in (1) through (3) of
this subsection exist, the DA is not mandated to file a TPR petition or motion.
(1) At the option of OKDHS or by order of the
court, the child is properly cared for by a relative.
(2) OKDHS documents a compelling reason for
determining that filing a TPR petition would not serve the child's best
interests and may include consideration that the:
(A) parents or legal guardians have
maintained a relationship with the child and the child would benefit from
continuing the relationship;
(B)
child, who is 12 years of age and older, objects to the termination of the
parent-child, legal relationship;
(C) child's foster parents are unable to
adopt the child because of exceptional circumstances that do not include an
unwillingness to accept legal responsibility for the child; but are willing and
capable of providing the child with a stable and permanent environment, and the
removal of the child from the physical custody of the foster parents would be
seriously detrimental to the emotional well-being of the child because the
child has substantial psychological ties to the foster parents;
(D) child is not capable of achieving
stability when placed in a family setting; or
(E) child is an unaccompanied, refugee minor
and the situation regarding the child involves international legal issues or
compelling foreign policy issues.
(3) Reasonable efforts to reunite the child
with his or her family are required and OKDHS has not provided services the
state deems necessary for the child's safe return to his or her home, which are
consistent with the time period in the state case plan.
(e)
Parental rights not terminated at
trial. When parental rights are not terminated at trial, the court
schedules a permanency hearing within 30-calendar days, per 10A O.S. §
1-4-908. TPR failure at trial does not:
(1)
deprive the court of its continuing jurisdiction over the child; or
(2) require the child's reunification with
the parent when the child is adjudicated deprived.
(f)
Adoption consent authority with
TPR. When the court terminates parental rights and the child's custody
is placed with OKDHS, the court must vest OKDHS with the authority to place the
child, and consent to the child's adoption, per 10A O.S. §
1-4-907.
(g)
Duty to provide
access to identifying information to the Oklahoma State Department of Health
(OSDH). OKDHS provides OSDH with access to the identifying information
of all individuals who had their parental rights terminated and the conditions
that led to the TPR finding, per 63 O.S. § 1-227.10.
Notes
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