OKDHS.org - OAC 340:75-19-14. Placement preferences for Indian children

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340:75-19-14. Placement preferences for Indian children

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Issued 6-27-02

(a) The Federal and State Indian Child Welfare Acts (ICWA) establish an order of placement preferences for foster care, pre-adoptive, and adoptive placements for Indian children. These 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 State ICWA establishes placement preferences prior to adjudication.

(b) Indian children in foster care or pre-adoptive placements are placed in the least restrictive, most family-like setting. The child is placed in reasonable proximity to the child's home, taking into account any special needs of the child. Indian children in foster care or pre-adoptive placements are placed in the following order of preference, absent good cause to the contrary:

(1) a member of the Indian child's extended family;
(2) a foster resource home licensed, approved, or specified by the Indian child's tribe;
(3) an Indian foster resource home licensed or approved by an authorized non-Indian licensing authority; or
(4) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.

(c) Indian children in adoptive placements are placed in the following order of preference, absent good cause to the contrary:

(1) a member of the child's extended family;
(2) other members of the Indian child's tribe; or
(3) other Indian families.

(d) Tribes may establish their own order of preference by tribal resolution, which may differ from those set out in the Federal ICWA. Tribes who have Tribal/State Agreements for Foster Care set out their order of preference in the Agreement. • 10

(e) Pursuant to Section 40.6 of Title 10 of the Oklahoma Statutes DHS utilizes to the maximum extent possible the services of the Indian child's tribe in securing placement consistent with the State and Federal ICWA. • 1 through 10

(f) The court may find good cause to modify the placement preferences when: • 1 through 10

(1) requested by the biological parents or the child when the child is of sufficient age;
(2) the child has extraordinary physical or emotional needs as established by the testimony of a qualified expert witness; or
(3) after a diligent search has been conducted for families meeting the preference criteria, suitable families for placement are not available.

INSTRUCTIONS TO STAFF 340:75-19-14

1.   Placement of an Indian child is made in accordance with the placement preference of the Indian child's tribe. If a placement is not available with extended family, alternate placement is sought utilizing the placement preferences in descending order. Placement in a different order than is specified by the preferences, or placement in a resource not listed in the preferences, must be sanctioned by the court of jurisdiction. In other words, a finding of good cause by the court is necessary for placement of any Indian child who is not placed within the first order of preference, extended family. The Child Welfare (CW) worker requests that a good cause hearing be held if a placement is not available within the first order of preference. At the hearing, evidence is presented setting forth the reasons for alternate placement.

2.   If a placement is not available in a specific category of preference, the CW worker documents the efforts to locate or identify a placement resource as well as the reason it became necessary to seek placement in a lower order of preference. The CW worker documents all contacts made with the child's tribe for assistance in locating a placement compliant with the Act on the Contacts screen and Court Report screen in the child's KIDS case record.

3.   If no placement is available within the placement preferences, it may be necessary to place outside the preferences, such as with non-Indian, non-relative foster parents.

4.  Even though DHS is required to utilize the services of the tribe to assist with placement of Indian children, DHS still retains the responsibility for placement of children in DHS custody. If the tribe recommends a placement that is not consistent with the case plan goal, or does not meet the specific needs of the child, the CW worker can decline to place in the home recommended by the tribe. The CW worker fully explains to the child's tribe, and fully documents in the child's KIDS case record on the Contacts screen and Court Report screens, the reasons for declining placement, unless the reason is due to a history of child abuse or neglect. If denial of placement is based upon child abuse or neglect history, due to confidentiality requirements, the CW worker cannot disclose the child abuse or neglect history to the tribe. [OAC 340:75-19-17] The CW worker asks the tribe to assist in locating other possible placement resources for the Indian child consistent with the placement preferences.

5.   If placement is sought in a different order of preference than is set out by the tribe or under the Federal Indian Child Welfare Act (ICWA), a good cause finding by the court of jurisdiction is required. Any time a child is placed with someone other than extended family, a good cause hearing is required. The CW worker documents the reasons for alternative placement in the Court Report. At the hearing, evidence is presented setting forth the reasons for alternative placement. [OAC 340:75-19-14(f)]

6.      Information necessary for a good cause finding includes efforts to locate extended family, including names of persons contacted. Information also includes contacts made with the tribe for assistance in locating a placement, including dates of contact and the name of the tribal worker. The CW worker documents this information in the Contacts and Court Reports screens in KIDS.

7.   If the tribe is in agreement with placement outside the preference or in a different order of preference, the CW worker attempts to secure the tribe's position in writing to submit to the court. The CW worker documents the tribe's position and the name of the tribal CW worker with whom the placement issue was discussed. This information is included in the Court Report.

8.   When an 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 worker seeks a placement that complies with the placement preferences as quickly as possible upon knowing the child is an Indian child.

9.   When Indian children are not placed in accordance with the Federal and State ICWA because of a lack of resources, the CW worker, in cooperation with the child's tribe, continues to search for a placement that is in compliance. The obligation to meet the placement preferences continues throughout the case. If a placement is located that falls within a higher order of preference that meets the child's specific needs, the child is moved into that placement, unless good cause to the contrary exists.

10.The CW worker consults with the child's tribe to determine that specific tribe's order of preference. To access the order of placement preferences specified by the tribe, refer to the Tribal/State Agreements for Foster Care which are accessed at Outlook-Public Folders/STO-DCFS-Tribal. The order of placement preferences is stated under General Requirements.

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