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. • 1 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 tribewhether 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. • 1 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.
INSTRUCTIONS TO STAFF 340:75-19-14
1. Placement preferences for the Indian child and good cause hearing. Placement of the Indian child is made in accordance with the placement preference of the child's Indian tribe, when possible. The child welfare (CW) specialist consults with the Indian child's tribe to determine the tribe's specific order of placement preference. To access the placement preference order specified by the tribe, refer to the tribal/state agreement for the tribe or contact tribal program unit.
(1) When a placement is not available with extended family, alternate placement is sought utilizing the placement preferences in descending order.
(2) Placement in a different order than is specified by the preferences or placement in a resource not listed in the preferences must be authorized by the court of jurisdiction.
(A) A good cause finding by the court is necessary for the Indian child who is not placed within the first order of preference, the child's extended family.
(B) The CW specialist:
(i) requests a good cause hearing when a placement is not available within the first order of preference and for each other placement that is not a preferred placement in the descending order of preference specified by the Indian Child Welfare Act (ICWA) or by tribal resolution; and
(ii) continues to seek placement within the listed order of preference.
(C) Evidence is presented at a good cause hearing setting forth the reasons for deviation from the placement preference order. Information for a good cause finding includes:
(i) efforts to locate extended family, including contacts with parents and other relatives to identify extended family and the names of persons contacted;
(ii) contacts made with the tribe for assistance locating a placement, including dates of contact, and the name of the Indian child welfare (ICW) worker;
(iii) requests to the tribe to locate and identify extended family; and
(iv) efforts to utilize the tribe's order of placement preference.
(D) When the tribe is in agreement:
(i) with placement outside of the ICWA specified preference;
(ii) with a different order of placement preference; and
(iii) when there are no available, appropriate placement resources, the CW specialist:
(I) attempts to secure the tribe's agreement concerning placement in writing to assist the court with a good cause finding; and
(II) documents in the child's KIDS case and the court report the tribe's agreement concerning placement and the name of the ICW worker with whom the placement issue was discussed.
(3) When a placement is not available in a specific category of preference, the CW specialist documents:
(A) the reasons the placement is not available and the active efforts made to locate or identify a placement resource; and
(B) each contact made with the child's tribe for assistance with locating a placement in the Contacts screen and Court Report screen in the child's KIDS case record.
(4) When no placement is available within the placement preferences, it may be necessary to place outside of the preferences, such as with non-Indian, non-relative foster parents.
(5) A placement may be considered available/appropriate outside of placement preferences when the placement conforms to the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family resides or with which the Indian child's parent or extended family members maintain social and cultural ties.
2. Oklahoma Human Services (OKDHS) placement authority for Indian child in OKDHS custody. Although OKDHS is required to utilize the tribe's services to assist with the Indian child's placement, OKDHS retains responsibility and authority for placement of the child in OKDHS custody.
(1) When the tribe recommends a placement not consistent with the case plan goal or does not meet the specific needs of the Indian child, the CW specialist declines to place the child in the home recommended by the tribe.
(2) The CW specialist explains to the Indian child's tribe the reasons for declining placement, and documents the reasons in the child's KIDS case Contacts screen and Court Report screens.
(3) The CW specialist requests that the tribe assist with locating other possible placement resources for the Indian child consistent with the placement preferences.
3. Delayed knowledge of child's Indian status. When the Indian child is not placed in accordance with the preference order set forth in the State and Federal ICWA because it was not known that the child was Indian, the CW specialist seeks a placement that complies with the placement preferences as quickly as possible after discovery of the child's Indian status.
4. Continued active efforts required to place child within ICWA preferences. When the Indian child is not placed in accordance with the federal and state ICWA because of a lack of resources, the CW specialist, in cooperation with the child's tribe, continues to search for a placement that falls in descending preference order. The requirement to meet the placement preferences continues throughout the case. When a placement is located within a higher order of preference, the child is moved into that placement unless the court finds good cause to deviate from the preference order.