Okla. Admin. Code § 340:75-1-16

Current through Vol. 42, No. 2, October 1, 2024

Section 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.

(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.

(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. Custody is determined 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.

(g)Opportunity for DHS and others to be heard in placement and custody decisions.

(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 must provide 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 DHS custody and review of court order.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 DHS 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.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.

Okla. Admin. Code § 340:75-1-16

Amended at 11 Ok Reg 361, eff 10-15-93 (emergency); Amended at 11 Ok Reg 2267, eff 5-26-94; Amended at 13 Ok Reg 967, eff 1-24-96 (emergency); Amended at 13 Ok Reg 2199, eff 6-14-96; Amended at 14 Ok Reg 593, eff 12-12-96 (emergency); Amended at 14 Ok Reg 2288, eff 6-12-97; Amended at 16 Ok Reg 102, eff 10-13-98 (preemptive); Amended at 17 Ok Reg 92, eff 10-1-99 (emergency); Amended at 17 Ok Reg 1311, eff 5-11-00; Amended at 18 Ok Reg 393, eff 12-8-00 (emergency); Amended at 18 Ok Reg 3067, eff 7-12-01; Amended at 19 Ok Reg 402, eff 12-1-01 (emergency); Amended at 19 Ok Reg 2208, eff 6-27-02; Amended at 20 Ok Reg 90, eff 10-16-02 (emergency); Amended at 20 Ok Reg 921, eff 5-12-03; Amended at 24 Ok Reg 631, eff 1-15-07 (emergency); Amended at 24 Ok Reg 1323, eff 6-1-07 ; Amended at 25 Ok Reg 269, eff 11-1-07 (emergency); Amended at 25 Ok Reg 970, eff 5-15-08; Amended at 27 Ok Reg 1092, eff 3-26-10 (emergency); Amended at 27 Ok Reg 1865, eff 7-1-10; Amended at 30 Ok Reg 839, eff 7-1-13

Amended by Oklahoma Register, Volume 32, Issue 24, September 1, 2015, eff. 9/15/2015.