340:75-19-12. Adjudication of an Indian child
(b) Standards of evidence for deprived adjudication of the Indian child.Adjudication of an Indian child per Section 1912(e) of Title 25 of the United States Code requires a determination, by the court supported by clear and convincing evidence, including testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage or harm to the child. • 2 & 3
(c) Demonstration of active efforts.A party petitioning a state court for foster care placement of an Indian child must demonstrate to the court that active efforts were made to prevent removal of the child from the parent or Indian custodian and those efforts were unsuccessful.
INSTRUCTIONS TO STAFF 340:75-19-12
1.Time restriction for pre-adjudicatory custody of the Indian child. The child welfare (CW) specialist notifies the CW supervisor when it appears the adjudication of the Indian child will not occur within the time requirements specified by the Oklahoma Indian Child Welfare Act.The CW supervisor may request assistance from the Oklahoma Department of Human Services (DHS) Legal Services.
2.Standards for adjudication of Indian child.
(1) Adjudication of the Indian child requires a higher standard than adjudication of the non-Indian child, and includes a determination, supported by clear and convincing evidence, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage or harm to the child, including testimony of an expert witness.
(2) Clear and convincing evidence must show a causal relationship between the existence of particular conditions in the home that are likely to result in serious emotional or physical damage or harm to the particular child who is the subject of the proceeding.Evidence showing only the existence of community or family poverty or isolation, single parenthood, custodian age, crowded or inadequate housing, substance use or abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence that continued custody is likely to result in serious emotional or physical damage or harm to the child.
(1) DHS is required to provide active efforts to Indian families and the court determines if active efforts were made.These efforts take into account the:
(A) prevailing social and cultural conditions and way of life of the Indian child's tribe;
(B) involvement and use of the available resources of the:
(i) extended family;
(iii) Indian social service agencies; and
(iv) individual Indian caregivers, such as medicine men and other individual tribal members who may have developed special skills that can be used to help the child's family succeed; and
(C) examples of active efforts may include:
(i) engaging the Indian child, the Indian child's parents, the Indian child's extended family members, and the Indian child's custodian(s);
(ii) taking steps necessary to keep siblings together;
(iii) identifying appropriate services and helping the parents overcome barriers, including actively assisting the parents in obtaining such services;
(iv) identifying, notifying, and inviting representatives of the Indian child's tribe to participate;
(v) conducting, or causing to be conducted, a diligent search for the Indian child's extended family members for assistance and possible placement;
(vi) taking into account the Indian child's tribe's prevailing social and cultural conditions and way of life, and requesting the assistance of representatives designated by the Indian child's tribe with substantial knowledge of the prevailing social and cultural standards;
(vii) offering and employing all available and culturally appropriate family preservation strategies;
(viii) completing a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal;
(ix) notifying and consulting with the Indian child's extended family members to provide family structure and support, to assure cultural connections, and to serve as placement resources for the Indian child;
(x) making arrangements to provide family interaction in the most natural setting that ensures the Indian child's safety during any necessary removal;
(xi) identifying community resources, including housing, financial, transportation, mental health, substance use or abuse, and peer support services, and actively assisting the Indian child's parents or extended family in utilizing and accessing those resources;
(xii) monitoring progress and participation in services;
(xiii) providing consideration of alternative ways of addressing the Indian child's parents and extended family's needs, when services do not exist or existing services are not available;
(xiv) supporting regular visits and trial home visits of the Indian child during any period of removal, consistent with the need to ensure the Indian child's safety; and
(xv) providing post-reunification services and monitoring.
(2) The Federal Indian Child Welfare Act (FICWA) mandates that DHS make active efforts in each FICWA case in two areas:
(A) providing services to the family to prevent removal of an Indian child from his or her parent or Indian custodian; and
(B) reunifying the Indian child with his or her parent or Indian custodian after removal.
(3) Active and early participation and consultation by the CW specialist with the Indian child's tribe in all case planning decisions is an essential prerequisite to a court finding of active efforts.
(4) The need for active efforts apply whether or not the Indian child's tribe is involved in the custody proceedings.
(5) When case facts are sufficient to pursue adjudication, the CW specialist reviews the family's case history to ensure sufficient evidence exists to meet the "active efforts" requirement.
(6) DHS Legal Services is consulted by the CW supervisor, when necessary.