340:75-1-16. Custody hearings, placement hearings, and court orders
(a) Pre-petition emergency custody order. Section 1-4-201 of Title 10A of the Oklahoma Statutes (10A O.S. § 1-4-201) directs that the court may not enter a pre-petition, emergency custody order removing a child from the child's home unless the court makes a determination:
(1) that an imminent safety threat exists and continuation in the child's home is contrary to the child's welfare; and
(2) whether reasonable efforts have been made to prevent the child's removal from the child's home; or
(3) an absence of efforts to prevent the removal of the child from the child's home is reasonable because the removal is due to an emergency and provides for the child's safety and welfare.
(b) Emergency custody hearing. 10A O.S. § 1-4-203 requires that within two judicial days after a child is taken into emergency or protective custody as an alleged deprived child, the child's parent, legal guardian, or custodian is entitled to an emergency custody hearing, and thereafter at such intervals as determined by the court. • 1
(c) Due diligence to identify relatives. Per 10A O.S. § 1-4-203, within 30 calendar days of the child's removal, the Oklahoma Department of Human Services (DHS) exercises due diligence to identify the child's relatives. DHS provides notice to all grandparents and to other relatives as the court directs. Relatives are not notified when notification would not be in the child's best interests, due to past or current family or domestic violence. The notice advises the relatives:
(1) the child was or will be removed from the custody of the parent or parents;
(2) of the options under applicable law to participate in the care and placement of the child, including any options that may be lost by failing to respond to the notice; and
(3) of the requirements to become a foster family home and the additional services and supports available for the child placed in the home. • 1
(d) Pre-adjudicatory emergency custody order extension. Per 10A O.S. § 1-4-601, the child is released from emergency custody when the adjudication hearing is delayed beyond 90 calendar days from the date the petition is filed unless the court extends the emergency order up to an additional 90 calendar days by a written order with findings of fact supporting a determination that:
(1) reasonable suspicion exists that the health, safety, or welfare of the child would be in imminent danger if the child were returned to the home; and
(2) an exceptional circumstance exists to support the continuance of the child in emergency custody; or
(3) an agreement by the parents and the guardian ad litem, if any, exists to the continuance.
(e) Emergency custody order expiration. Per 10A O.S. § 1-4-601, when the adjudicatory hearing is delayed, the emergency custody order expires, unless the hearing on the merits of the petition is held within 180 calendar days after the actual removal of the child and custody is returned to the parent or legal guardian from whom the child was removed, or as otherwise directed by the court. However, the expiration of the emergency custody order does not cause the court to lose jurisdiction over the parties, including the child, and the court may enter other orders the court deems necessary to provide for the health, safety, and welfare of the child pending hearing on the petition.
(f) Post-petition emergency hearing. Once a child is the subject of a deprived child proceeding, any party may file a verified application for an emergency hearing that demonstrates harm or threatened harm to the health, safety, or welfare of the child. The court must hold an emergency hearing within 72 hours after receipt of the application. The court may issue an emergency order to protect the health, safety, and welfare of the child ending the emergency hearing per 10A O.S. § 1-4-807.1.
(1) Per 10A O.S. § 1-4-802, at any hearing under the Oklahoma Children's Code for the purpose of determining placement of the child in DHS custody, or whether the child in DHS custody, whether protective, emergency, temporary, or permanent is released from DHS custody, the court provides an opportunity for a DHS representative, the current foster parent, a group home representative where the child is currently placed, the guardian ad litem, and child, when of sufficient age, to present sworn testimony regarding the placement or release.
(2) When the Oklahoma Commission on Children and Youth (OCCY), Office of Juvenile System Oversight has conducted an investigation regarding placement of a child or release of a child from state custody and determines there is a serious risk of danger to the health or safety of the child, OCCY provides the court and the parties a written report of the investigation and recommendation for placement of the child. The OCCY report is provided to the court and the parties no less than five judicial days prior to the hearing. The court, upon motion of any party, orders attendance of any person preparing the OCCY report when it appears there is a substantial likelihood that material evidence not contained in the report may be produced by the testimony of the person who prepared the report. The court considers the report when making the decision regarding placement of the child or release of the child from DHS custody.
(h) Objection by district attorney or child's attorney to child's release from state custody and review of court order. • 3 & 4 Per 10A O.S. § 1-8-103, at any hearing where a child's release from DHS custody, whether protective, emergency, temporary, or permanent custody, creates a serious risk of danger to the health or safety of the child, the district attorney or the attorney for the child may give verbal notice to the court of an objection to the court's order and an intention to seek review of the order releasing the child from state custody.
(1) Upon receiving notice, the court issuing the custody order in question stays the custody order pending the filing of an application and completion of the review. The district attorney or attorney for the child files a written application for review within three judicial days from the custody order with the presiding judge of the administrative judicial district. When a written application for review is not filed within the required time period, or when a written notice to the trial court withdrawing the objection is filed within the time period, the objection is deemed abandoned and the stay expires.
(2) Each application for review is assigned by the presiding judge of the administrative judicial district to a judge with juvenile docket responsibilities within that administrative judicial district.
(A) The review is completed within five judicial days of the filing of the written application for review and addresses the question of whether releasing the child from DHS custody creates a serious risk of danger to the health or safety of the child.
(B) The reviewing court reviews the hearing record and any other evidence the reviewing court deems relevant and issues a findings of fact and conclusions of law.
(i) Directed placement not allowed. • 4 & 5 When the court determines it would be in the best interests of the child, the court may place the child in DHS legal custody. Per 10A O.S. § 1-4-803, when the child is placed in DHS custody, the court does not have the authority to order a specific placement, but has the authority to approve or disapprove a specific placement when the placement does not conform to statutory requirements and the child's best interests.
(j) Right to be heard and hearing notification to placement providers. DHS provides notice of the hearing per Oklahoma Administrative Code 340:75-1-16.1.
(k) Telephonic or teleconference hearings. Per 10A O.S. § 1-4-503 any proceeding held pursuant to the Oklahoma Children's Code may be conducted via teleconference communication when authorized by the court; provided, that when a parent or child appears for a proceeding via teleconference, the attorney representing the parent or child must personally appear at the hearing. Teleconference communication means participation in the hearing by interactive telecommunication, including telephonic communication, by the absent party, parties present in court, the attorneys, and others deemed to be necessary participants to the proceeding including, but not limited to, foster parents and facility staff where a child may be receiving care or treatment.
INSTRUCTIONS TO STAFF 340:75-1-16
1.At the emergency custody hearing, the court:
(1) determines if there is reasonable suspicion that the child is in need of immediate protection due to abuse or neglect or that the child's circumstances or surroundings are such that the child's continuation in his or her own home would present an imminent danger to the child;
(2) advises the parent, legal guardian, or custodian in writing of:
(A) any right of the parent, legal guardian, or custodian to testify and present evidence at court hearings;
(B) the right to be represented by an attorney at court hearings;
(C) the consequences of failure to attend any hearings that may be held; and
(D) the right to appeal and procedure for appealing an order of the court;
(3) determines custody of the child and orders the parent, legal guardian, or custodian to provide information to identify and locate kinship placement resources, complete an affidavit listing the names, addresses, and phone numbers of any parent, whether known or alleged, grandparent, adult aunt, adult uncle, adult brother, adult sister, adult half-sibling, and adult first cousin and provide comments concerning the appropriateness of the potential placement of the child with the relative.When no such relative exists, the parent, legal guardian, or custodian is required by the court to list any other relatives or persons with whom the child has had a substantial relationship or who may be a suitable placement for the child.The affidavit is filed by the parent with the court clerk no later than five-business days following the hearing, or as otherwise ordered by the court.A copy is provided to Oklahoma Human Services (OKDHS).OKDHS exercises due diligence to identify and provide notice to relatives, per Oklahoma Administrative Code (OAC) 340:75-6-85.2;
(4) directs the parent, legal guardian, or custodian to furnish OKDHS with a copy of the child's birth certificate within 15-business days from the hearing when a petition is filed, unless otherwise extended by the court; and
(5) determines if reasonable efforts were made to:
(A) place siblings, who were removed, together in the same foster home, guardianship, or adoptive placement; and
(B) provide frequent visitation or other ongoing interaction in the case of siblings who were removed, and who are not placed together.Guidance on when siblings may be separated is found in OAC 340:75-6-85.
2.At the emergency custody hearing, the child welfare (CW) specialist:
(1) articulates how the person responsible for the child's (PRFC) behavior, including the diminished protective capacities, poses an imminent threat to the child and why the threat cannot be managed without court intervention and the child's continuation in the home is contrary to his or her welfare;
(2) requests the child be placed in or continued in OKDHS emergency custody;
(3) presents well-prepared information with all pertinent case and safety analysis obtained to that point;
(4) follows OKDHS dress code, including professional business attire;
(5) arrives early and is respectful of all participants during the hearing;
(6) is mindful of confidentiality, facial expressions, body language, and how court etiquette is tied to rapport with both the family and the court;
(7) may request approval for the child's placement with the non-offending PRFC when the safety analysis is completed and the non-offending PRFC possesses all necessary protective capacities, with the exception of a legal ability to protect; and
(8) upon the court's order to release the child from emergency OKDHS custody, may request that the district attorney (DA) or the child's attorney give verbal notice to the court of an objection to the order and an intention to seek review.
3.Opportunity to be heard in placement and custody decisions.
(1) The CW specialist asks the DA for the opportunity to be heard by requesting to testify on the record.When the DA declines, the CW specialist directly requests from the court the opportunity to be heard on the record prior to thehearing's conclusion.
(2) Whenthe court refuses to provide an opportunity to be heard, the CW specialist advises the CW supervisor, who contacts OKDHS Legal Services (LS).
(3) When the court releases a child from OKDHS custody and orders OKDHS to continue to supervise the child's placement, the CW specialist:
(A) does not recommend that OKDHS be relieved of supervision;
(B) closely supervises the child's placement; and
(C) documents any concerns for the court.
(4) The court, DA, or the attorneys for the parties may cross examine the OKDHS representative, the child when of sufficient age as determined by the court, the present foster parents, and the guardian ad litem, when any.
(5) The court issues a written finding of fact and conclusions of law and all hearings concerning placement and release from state custody are on the record.
(6) OKDHS does not have the same right to be heard when the DA is declining to file a petition and the child is released by operation of law.
4.Objection to release from state custody and review of court order.Per Section 1-4-801 of Title 10A of the Oklahoma Statutes, the DA and the child's attorney may give verbal notice to the court of an objection to the order and intention to seek review of the order releasing the child from state custody based on the grounds that the order creates a serious risk of danger to the child's health or safety.The court is required to stay the custody order when the DA orthechild's attorney objects, pending the filing of an application for review by the objecting party.When verbal notice of an objection is given, the procedures in (1) through (3) are followed.
(1) The party giving notice of objection and intention to seek review of the court order files with the presiding judge of the administrative judicial district, within three-judicial days from the custody order, a written application to review the order.
(2) When the written application is not filed timely or a written notification is received that the objection is withdrawn, the objection is considered abandoned and the stay is lifted.
(3) When the application is filed timely, the presiding judge of the administrative judicial district assigns a juvenile judge within the judicial district to complete a review of the order.
(A) The review is completed within five-judicial days of the filing of the written application for review.
(B) When there is no finding of serious risk of danger to the child's health or safety, the reviewing judge orders the stay lifted and the child released according to the order under review.
(C) When the reviewing judge finds a serious risk of danger to the child's health or safety, the court issuing the order under review is required to enter a different order.
5.(a) OKDHS LS assistance.When a question is not satisfactorily resolved by reference to OKDHS rules or interpretation of rules, a request for formal legal opinion is submitted to OKDHS LS, as provided in OKDHS:2-25-3.Requests for informal legal opinions and advice or assistance on individual case problems are, when time permits, made by or after consultation with administrative, program, or supervisory staff.
(b) Prompt consultation.Circumstances that require prompt consultation between a CW specialist and an OKDHS attorney are not delayed by contacts with supervisory or other staff, who are contacted as soon as possible thereafter.Examples of such circumstances include:
(1) a request, by the court, the DA, the child's attorney, or a parent's attorney, for the OKDHS position on a question of law or for legal action by OKDHS made in the course of a hearing or proceeding before the court;
(2) the issuance of an order or directive from the court requiring the provision of a service or other action by OKDHS within a short time and the service or action cannot be provided because it is not authorized by law, conflicts with OKDHS rules, or is impossible to provide or perform within the time allowed;
(3) obstruction of a mandatory Child Protective Services (CPS) investigation or necessary and authorized CPS investigative procedures.Reasonable requests by the DA or law enforcement officers aimed at advancing a criminal investigation and planned multidisciplinary team activities that alter normal investigative protocols do not constitute obstruction, per OAC 340:75-3-110 and 340:75-3-440; and
(4) receipt of work-related legal process, such as a summons or notice, per OAC 340:75-1-45.
6.Protocol for challenging a court-ordered directed placement. When the court is believed to have exceeded its authority by ordering OKDHS to place a child in OKDHS custody in a specific home or placement contrary to the OKDHS recommendation, the procedure in (1) through (4) of this Instruction is followed.
(1) The CW specialist, immediately after the hearing, consults with the supervisor and district director to determine whether OKDHS will initiate legal action to challenge the court order.
(2) When the decision is made to initiate legal action to challenge the court order, the district director immediately notifies the deputy regional director and OKDHS LS.
(3) OKDHS LS consults with the Child Welfare Services director to determine the appropriate legal action warranted by the facts and circumstances of the case, including:
(A) contacting the court and counsel for the parties;
(B) preparing appropriate motions to stay, reconsider, or vacate the order;
(C) preparing an application for new hearing; or
(D) preparing petitions or applications for appellate court relief or intervention.
(4) OKDHS LS notifies the district director of the decision and, when necessary, takes the appropriate legal action necessary to challenge the court-ordered directed placement.