OKDHS - OAC 340:75-1-16. Custody hearings, placement hearings, and court orders

340:75-1-16. Custody hearings, placement hearings, and court orders

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Revised 3-26-10

(a) Pre-petition emergency custody order. Section 1-4-201 of Title 10A of the Oklahoma Statute (10A O.S. § 1-4-201) directs that the court may not enter a pre-petition emergency custody order removing a child from the home of the child unless the court makes a determination:

(1) that an imminent safety threat exists and continuation in the home of the child is contrary to the welfare of the child; and
(2) whether reasonable efforts have been made to prevent the removal of the child from the child’s home; or
(3) an absence of efforts to prevent the removal of the child from the home of the child is reasonable because the removal is due to an emergency and is to provide for the safety and welfare of the child.

(b) Emergency custody hearing. 10 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(s), 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. Within 30 days of the removal of a child, Oklahoma Department of Human Services (OKDHS) exercises due diligence to identify relatives. The notice is provided by OKDHS to all grandparents, and to other relatives as the court directs. Relatives are not notified if notification would not be in the best interests of the child due to past or current family or domestic violence. The notice advises the relatives:

(1) the child has been or is being removed from the custody of the parent or parents of the child;
(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 children placed in the home. [10A O.S. § 1-4-203] • 1

(d) Pre-adjudicatory emergency custody order. A child is released from emergency custody if the adjudication hearing is delayed beyond 90 days from the date the petition is filed unless the court issues a written order with findings of fact supporting a determination that there exists:

(1) reasonable suspicion that the health, safety, or welfare of the child would be in imminent danger if the child were returned to the home; and
(2) either an exceptional circumstance to support the continuance of the child in emergency custody or the parents and the guardian ad litem, if any, agree to such continuance.

(e) Emergency custody order expiration. If the adjudicatory hearing is delayed pursuant to 10A O.S. § 1-4-203, the emergency custody order expires unless the hearing on the merits of the petition is held within 180 days after 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. The court does not 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) Opportunity to be heard in placement and custody decisions. • 2 & 4 At any hearing under the Oklahoma Children's Code for the purpose of determining the placement of a child or whether a child in the state's custody, whether protective, emergency, temporary, or permanent, is to be released from such custody, the court provides an opportunity for a representative from OKDHS, the current foster parent, guardian ad litem, and child, if of sufficient age, to present sworn testimony regarding this placement or release. [10A O.S. § 1-4-802]

(g) Objection to release from state custody and review of court order. • 3 & 4 At any hearing where a child is to be released from the state's custody, whether protective, emergency, temporary, or permanent custody, a determination must be made about whether the court order releasing the child from the state's custody creates a serious risk of danger to the health or safety of the child. [10A O.S. § 1-4-801]

(h) Directed placement not allowed. • 4 & 5 If the court determines it would be in the best interests of a child, the court may place the child in the legal custody of OKDHS. If the child is placed in OKDHS custody, the court may not direct OKDHS to place the child in a specific home or placement but may approve or disapprove a specific placement if the placement does not conform to statutory requirements and the best interests of the child. [10A O.S. § 1-4-803]

(i) Right to be heard. A right to be heard at all proceedings is provided by the court to the current foster parent of a child, the child's guardian ad litem, and to any preadoptive parent or relative providing care for the child. Such notice and right to be heard is not construed as requiring any foster parent, preadoptive parent, or relative be made a party to such action.

(j) Telephonic or teleconference hearings. Section 1-4-503 of Title 10A of the Oklahoma Statutes, if authorized by the court, allows any proceeding held pursuant to the Oklahoma Children’s Code conducted via teleconference communication; provided, that when a parent or child appears for a proceeding via teleconference, the attorney representing that parent or child personally appears at the hearing. Teleconference communication means participation in the hearing by interactive telecommunication 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

Revised 3-26-10

1. At the emergency custody hearing, the court:

(A) determines whether there is reasonable suspicion that the child is in need of immediate protection due to abuse or neglect or that circumstances or surroundings of the child are such that continuation of the child in the child's home would present an imminent danger to the child;

(B) advises the parent, legal guardian, or custodian in writing of:

(i) any right of the parent, legal guardian, or custodian to testify and present evidence at court hearings;

(ii) the right to be represented by an attorney at court hearings;

(iii) the consequences of failure to attend any hearings which may be held; and

(iv) the right to appeal and procedure for appealing an order of the court.

(C) determines custody of the child and orders the parent, legal guardian, or custodian necessary 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, uncle, brother, sister, half-sibling, and first cousin, and provide comments concerning the appropriateness of the potential placement of the child with the relative. If 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 with the court clerk no later than five days following the hearing, or as otherwise ordered by the court, and a copy is provided to OKDHS. OKDHS exercises due diligence to identify and provide notice to relatives as per OAC 340:75-6-85.2;

(D) directs the parent, legal guardian, or custodian to furnish OKDHS with a copy of the child's birth certificate within fifteen days from the hearing if a petition is filed, unless otherwise extended by the court; and

(E) determines whether reasonable efforts have been made to:

(i) place siblings, who have been removed, together in the same foster home, guardianship, or adoptive placement; and

(ii) provide frequent visitation or other ongoing interaction in the case of siblings who have been removed, and who are not placed together.

2. Opportunity to be heard in placement and custody decisions.

(1) CW worker asks the District Attorney (DA) for the opportunity to be heard by requesting to testify on the record. If the DA declines, the CW worker directly requests from the court the opportunity to be heard on the record prior to conclusion of the hearing.

(2) If the court refuses to provide an opportunity to be heard, the CW worker advises the CW supervisor, who contacts the OKDHS Legal Division.

(3) When the court releases a child from OKDHS custody and orders OKDHS to continue to supervise the child's placement, the CW worker:

(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, district attorney, or the attorney for the parties may cross examine the OKDHS representative, the child if of sufficient age as determined by the court, the present foster parents, and the guardian ad litem, if 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 district attorney is declining to file a petition and the child is released by operation of law.

3. 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 attorney for the child 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 health or safety of the child. The court is required to stay the order when the DA or attorney for the child objects, pending the filing of an application by the objecting party. When verbal notice of an objection is given, the procedure in (1) through (3) of this Instruction is 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) If 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, 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, the court issuing the order under review is required to enter another order.

4. (a) OKDHS Legal Division assistance. When a question is not satisfactorily resolved by reference to Oklahoma Department of Human Services (OKDHS) policy or interpretation of policy, a request for formal legal opinion is submitted to OKDHS Legal Division, 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 Child Welfare (CW) worker and an 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 position of OKDHS 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 policy, 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 340:75-3-5(d)(2) and 340:75-3-8.4; and

(4) receipt of work-related legal process, such as a summons or notice, per OAC 340:75-1-45.

5. Protocol for challenging a court-ordered directed placement. If 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 recommendation of OKDHS, the procedure in (1) through (4) is followed.

(1) The CW worker immediately after the hearing consults with the supervisor, county director (CD), and Child Welfare field liaison (CWFL) to determine whether OKDHS will initiate legal action to challenge the court order.

(2) If the decision is made to initiate legal action to challenge the court order, the CD immediately notifies the area director and OKDHS Legal Division.

(3) The OKDHS Legal Division consults with the Human Services Centers chief operating officer to make a determination as to the appropriate legal action warranted by the facts and circumstances of the case, including contacting the court and counsel for the parties, preparing appropriate motions to stay, reconsider, or vacate the order, preparing an application for new hearing, or preparing petitions or applications for appellate court relief or intervention.

(4) The OKDHS Legal Division notifies the CD of the decision and, if necessary, takes the appropriate legal action necessary to challenge the court-ordered directed placement.

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