Okla. Admin. Code § 340:75-3-120

Current through Vol. 42, No. 4, November 1, 2024

Section 340:75-3-120 - Definitions and substantiation protocol

(a)Legislative intent. Legislative intent, per Section 1-1-102 of Title 10A of the Oklahoma Statutes (10A O.S. § 1-1-102) states, "...it is the purpose of the laws relating to children alleged or found to be deprived to...intervene in the family only when necessary to protect a child from harm or threatened harm."

(b)Definitions. Terms used by Oklahoma Human Services (OKDHS) Child Welfare Services not found in the Oklahoma Children's Code are defined in Oklahoma Administrative Code 340:75-3-120 Instructions to Staff. The following words and terms, when used in the Oklahoma Children's Code, 10A O.S. §§ 1-1-105, 1-2-105, and 1-6-105; 21 O.S. §§ 748, 748.2; and 1040.13a; and in this Subchapter have the following meanings unless the context clearly indicates otherwise:

(1)"Abandonment" means the:

(A) willful intent by words, actions, or omissions of the person responsible for the child's (PRFC) health, safety, or welfare not to return for a child;

(B) failure to maintain a significant parental relationship with a child through visitation, family time, or communication, such as incidental or token visits or communication, which are not considered significant; or

(C) failure to respond to notice of deprived proceedings.

(2)"Abuse" means harm or threatened harm by a PRFC to a child's health, safety, or welfare including non-accidental physical or mental injury or sexual abuse or sexual exploitation; however, nothing prohibits a parent from using ordinary force as a means of discipline including, but not limited to, spanking, switching, or paddling.

(3)"Age-appropriate" or "developmentally-appropriate" means:

(A) activities or items that are generally accepted as suitable for children of the same age or maturity level or that are determined to be developmentally-appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age or age group; and

(B) in the case of a specific child, activities or items that are suitable for that child based on the developmental stages he or she attains with respect to his or her cognitive, emotional, physical, and behavioral capacities.

(4)"Assessment" means a comprehensive review of child safety and evaluation of family functioning and protective capacities conducted in response to a child abuse or neglect referral that does not allege a serious and immediate safety threat to a child.

(5)"Behavioral health" means mental health, substance use or abuse, or co-occurring mental health and substance use or abuse diagnoses, and the continuum of mental health, substance use or abuse, or co-occurring mental health and substance use or abuse treatment.

(6)"Child" means any unmarried person younger than 18 years of age, including an infant born alive.

(7)"Children's emergency resource center" means a community-based program that may provide:

(A) emergency care and a safe, structured, homelike environment or a host home for children providing food, clothing, shelter, and hygiene products to each child served;

(B) after-school tutoring;

(C) counseling services;

(D) life-skills training;

(E) transition services;

(F) assessments;

(G) family reunification;

(H) respite care;

(I) transportation to or from school, appointments with health care professionals, visitations or family time, court, and social or school activities, when necessary; and

(J) a stable environment for children in crisis who are in OKDHS custody, when permitted under OKDHS policies and regulations; or

(K) care for children voluntarily placed in the program by a parent or custodian during a temporary crisis.

(8)"Child safety meeting" means the collaborative decision-making process OKDHS engages in to address each child's needs related to safety and, when the child's condition warrants a safety intervention including, but not limited to, a change in placement, and:

(A) those involved in the collaborative decision-making process include, at a minimum, appropriate OKDHS staff, the child's parents, and, when the parent requests, an advocate or representative; and

(B) to protect the safety of those involved and to promote efficiency, OKDHS may limit participants as determined to be in the child's best interests.

(9)"Child with a disability" means any child who has a physical or mental impairment that substantially limits one or more of the child's major life activities, or who is regarded as having such impairment by a competent medical professional.

(10)"Commercial sex" means any form of commercial sexual activity, such as sexually explicit performances, prostitution, participation in the production of pornography, performance in a strip club, or exotic dancing or display, per 21 O.S § 748.

(11)"Custodian" means an individual other than a parent, legal guardian, or Indian custodian, to whom legal custody of the child was awarded by the court. As used in the Oklahoma Children's Code, the term "custodian" does not mean OKDHS.

(12)"Dependency" means a child who is homeless or without proper care or guardianship through no fault of his or her parent, legal guardian, or custodian.

(13)"Deprived child" means a child:

(A) who is for any reason destitute, homeless, or abandoned;

(B) who does not have the proper parental care or guardianship;

(C) who has been abused, neglected, or is dependent;

(D) whose home is an unfit place for the child by reason of depravity on the part of the child's parent, legal guardian, custodian, or other person responsible for the child's health or welfare;

(E) who is in need of special care and treatment because of the child's physical or mental condition, and the child's parents, legal guardian, or other custodian is unable or willfully fails to provide such special care and treatment. A child in need of special care and treatment includes, but is not limited to, a child who at birth tests positive for alcohol or a controlled dangerous substance and who, pursuant to a drug or alcohol screen of the child and an assessment of the parent, is determined to be at risk of harm or threatened harm to his or her health or safety;

(F) with a disability deprived of the nutrition necessary to sustain life, or deprived of the medical treatment necessary to remedy or relieve a life-threatening medical condition, in order to cause or allow the child's death when such nutrition or medical treatment is generally provided to similarly situated children without a disability or children with disabilities; provided that no medical treatment is necessary when, in the reasonable medical judgment of the attending physician, such treatment would be futile in saving the life of the child;

(G) who, due to improper parental care and guardianship, is absent from school, per 70 O. S. § 10-106, when the child is subject to compulsory school attendance;

(H) whose parent, legal guardian, or custodian for good cause desires to be relieved of custody;

(I) who was born to a parent whose parental rights to another child were involuntarily terminated by the court and the conditions that led to the finding, which resulted in the termination of the parental rights of the parent to the other child, have not been corrected; or

(J) whose parent, legal guardian, or custodian subjected another child to abuse or neglect or allowed another child to be subjected to abuse or neglect and is currently a respondent in a deprived proceeding.

(14)"Drug-endangered child" means a child who is at risk of suffering physical, psychological, or sexual harm as a result of the use, possession, distribution, manufacture, or cultivation of controlled dangerous substances or the attempt of any of these acts by a PRFC, per this Section and 10A O.S. § 1-1-105.

(A) This term includes circumstances wherein the PRFC's substance use or abuse interferes with his or her ability to parent and provide a safe and nurturing environment for the child.

(B) Per 10A O.S. § 1-2-101, every physician, surgeon, or other health care professional including doctors of medicine, licensed osteopathic physicians, residents and interns, any other health care professional, or midwife involved in the pre-natal care of expectant mothers or the delivery or care of infants who test positive for alcohol or a controlled dangerous substance, must promptly report the matter to the OKDHS. This includes infants who are diagnosed with neonatal abstinence syndrome or fetal alcohol spectrum disorder (FASD).

(C) Whenever OKDHS determines that a child meets the definition of a "drug-endangered child" or was diagnosed with neonatal abstinence syndrome or FASD, and the referral is assigned, OKDHS conducts an investigation of the allegations and does not limit the evaluation of the circumstances to an assessment, per 10A O.S. § 1-2-102.

(D) Whenever OKDHS determines an infant is diagnosed with neonatal abstinence syndrome or FASD, OKDHS develops a plan of safe care that addresses the infant and affected family member or caregiver and, at a minimum, their health and substance use or abuse treatment needs.

(15)"Emergency custody" means court-ordered custody of a child prior to the child's adjudication.

(16)"Failure to protect" means failure to take reasonable action to remedy or prevent child abuse or neglect, and includes the conduct of a non-abusing parent or guardian who knows the identity of the abuser or the person neglecting the child, but lies, conceals, or fails to report the child abuse or neglect, or otherwise take reasonable action to end the abuse or neglect.

(17)"Foster parent" means any person maintaining a therapeutic, emergency, specialized-community home, tribal, kinship, or foster family home responsible for providing care, supervision, guidance, rearing, and other foster care services to a child.

(18)"Harm or threatened harm" means any real or threatened physical, mental, or emotional injury or damage to the body or mind of a child that is not accidental including, but not limited to:

(A) sexual abuse or sexual exploitation;

(B) neglect; or

(C) dependency.

(19)"Heinous and shocking abuse" means any aggravated physical abuse that results in serious bodily, mental, or emotional injury. Serious bodily injury means, but is not limited to, injury that involves:

(A) substantial risk of death;

(B) extreme physical pain;

(C) protracted disfigurement;

(D) loss or impairment of a function of a body member, organ, or mental faculty;

(E) an injury to an internal or external organ or the body;

(F) bone fractures;

(G) sexual abuse or sexual exploitation;

(H) chronic abuse including, but not limited to, physical, emotional, or sexual abuse or sexual exploitation that is repeated or continuing;

(I) torture including, but not limited to, inflicting, participating in, or assisting in inflicting intense physical or emotional pain upon a child repeatedly over a period of time for the purpose of coercing or terrorizing a child, or for the purpose of satisfying the perpetrator's or another person's craven, cruel, or prurient desires; or

(J) any other similar aggravated circumstance.

(20)"Heinous and shocking neglect" means neglect that includes, but is not limited to:

(A) chronic neglect that includes, but is not limited to, a persistent pattern of family functioning in which the caregiver has not met or sustained the child's basic needs resulting in harm to the child;

(B) neglect that resulted in a diagnosis of the child as a failure to thrive;

(C) an act or failure to act by a parent that results in:

(i) serious physical or emotional harm;

(ii) sexual abuse or sexual exploitation;

(iii) the death or near death of a child or sibling; or

(iv) presents an imminent risk of serious harm to a child; or

(D) any other similar aggravating circumstance.

(21)"Human trafficking" means modern-day slavery that includes, but is not limited to, extreme exploitation and the denial of freedom or liberty of an individual for purposes of deriving benefit from that individual's commercial sex act or labor.

(22)"Human trafficking for commercial sex" means:

(A) recruiting, enticing, harboring, maintaining, transporting, providing, or obtaining, by any means, another person through deception, force, fraud, threat, or coercion for purposes of engaging the person in a commercial sex act;

(B) recruiting, enticing, harboring, maintaining, transporting, providing, purchasing or obtaining, by any means, a minor for purposes of engaging the minor in a commercial sex act; or

(C) benefiting, financially or by receiving anything of value, from participating in a venture engaged in an act of trafficking for commercial sex.

(23)"Infant" means a child 12 months of age and younger.

(24)"Investigation" means a response to an allegation of abuse or neglect that involves a serious and immediate threat to the safety of the child making it necessary to determine:

(A) the current safety of the child and the risk of subsequent abuse or neglect;

(B) if child abuse or neglect occurred; and

(C) if the family needs prevention- and intervention-related services.

(25)"Minor in need of treatment" means a child in need of mental health or substance use or abuse treatment as defined by the Inpatient Mental Health and Substance Abuse Treatment of Minors Act.

(26)"Multidisciplinary child abuse team" means any team established, per 10A O.S. § 1-9-102 of three or more persons who are trained in the prevention, identification, investigation, prosecution, and treatment of physical and sexual child abuse and who are qualified to facilitate a broad range of prevention- and intervention-related services and services related to child abuse. For purposes of this definition, "freestanding" means a team not used by a child advocacy center for its accreditation;

(27)"Near death" means a child is in serious or critical condition as a result of abuse or neglect verified by a physician, registered nurse, or other licensed health care provider. Verification of the medical condition of a child may be given in person or by phone, email, fax, or mail.

(28)"Neglect" means:

(A) the failure or omission by the PRFC to provide the child with:

(i) adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or an appropriate education;

(ii) medical, dental, or behavioral health care;

(iii) supervision or appropriate caretakers to protect the child from harm or threatened harm any reasonable and prudent PRFC would be aware; or

(iv) special care made necessary for the child's health and safety by the child's physical or mental condition;

(B) the failure or omission by the PRFC to protect the child from exposure to:

(i) the use, abuse, possession, sale, or manufacture of illegal drugs;

(ii) illegal activities; or

(iii) sexual acts or materials that are not age-appropriate; or

(C) abandonment.

(29)"Person responsible for the child's health, safety, or welfare" means:

(A) the child's parent, legal guardian, custodian, or foster parent. A custodian is an individual other than a parent, legal guardian, or Indian custodian to whom legal custody of the child was awarded by the court, per 10A O.S. § 1-1-105;

(B) a person 18 years of age and older with whom the child's parent cohabitates or any other adult residing in the child's home;

(C) an agent or employee of a public or private residential home, institution, facility, or day-treatment program, per 10 O.S. § 175.20;

(D) an owner, operator, or employee of a child care program, per 10 O.S. § 402, whether the home is licensed or unlicensed; or

(E) a foster parent maintaining a therapeutic, emergency, specialized-community, tribal, kinship, or foster family home responsible for providing care, supervision, guidance, rearing, and other foster care services to a child.

(30)"Physical abuse" means an injury resulting from punching, beating, kicking, biting, burning, or otherwise harming a child. Even though the injury is not an accident, the PRFC may not have intended to hurt the child.

(A) The injury may result from:

(i) extreme physical punishment inappropriate to the child's age or condition;

(ii) a single episode or repeated episodes that range in severity from significant bruising to death; or

(iii) any action including, but not limited to, hitting with a closed fist, kicking, inflicting burns, shaking, or throwing the child, even when no injury is sustained, but the action places the child at risk of grave physical danger.

(B) Minor injury of a child older than 10 years of age is not considered physical abuse unless the actions that caused the injury placed the child in grave physical danger.

(31)"Plan of safe care" means a plan developed for an infant with neonatal abstinence syndrome or a FASD, upon release from healthcare provider care that addresses the infant's and mother's or caregiver's health and substance use or abuse treatment needs.

(32)"Protective custody" means custody of a child taken by law enforcement or designated employee of the court, without a court order.

(33)"Reasonable parental discipline" means parental use of ordinary force as a means of discipline including, but not limited to, spankings, switching, or paddling that does not result in bodily injury to the child.

(34)"Risk" means the likelihood that an incident of child abuse or neglect will occur in the future.

(35)"Risk factors" means family behaviors and conditions that suggest the caregivers are likely to maltreat their child in the future.

(36)"Safety analysis" means OKDHS action taken in response to a report of alleged child abuse or neglect that may include an assessment or investigation based upon an analysis of the information received according to priority guidelines and other OKDHS-adopted criteria.

(37)"Safety evaluation" means an OKDHS evaluation of a child's situation, using a structured, evidence-based tool to determine if the child is subject to safety threats.

(38)"Safety threat" means the threat of serious harm due to child abuse or neglect occurring in the present or in the very near future that without another person's intervention, a child would likely or in all probability sustain severe or permanent disability or injury, illness, or death.

(39)"Sexual abuse" means any sexual activity, including sexual propositioning between the PRFC and child or any sexual acts committed or permitted by the PRFC including, but not limited to:

(A) rape;

(B) sodomy;

(C) incest; and

(D) lewd or indecent acts or proposals to a child.

(40)"Sexual exploitation" means any person 18 years of age and older or a PRFC:

(A) allowing, permitting, encouraging, or forcing a child to engage in prostitution, as defined by law; or

(B) allowing, permitting, encouraging, or engaging in the lewd, obscene, or pornographic, as defined by law, photographing, filming, or depicting of the child in those acts.

(41)"Sibling" means a biologically or legally-related brother or sister of a child. This includes an individual who satisfies at least one of the conditions in (A) and (B) with respect to a child. The individual:

(A) is considered by state law to be a child's sibling; or

(B) would be considered a sibling under state law, except for a termination or other disruption of parental rights, such as a parent(s)' death.

(42)"Trafficking in persons" means sex trafficking or severe forms of trafficking in persons.

(A) "Sex trafficking" means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.

(B) "Severe forms of trafficking in persons" means:

(i) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act is not 18 years of age; or

(ii) the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

(43)"Youth" means a child 13 through 17 years of age.

(c)Substantiation of child abuse and neglect allegations. Specific guidelines in conjunction with the definitions in this Section are utilized in substantiating abuse or neglect.

Okla. Admin. Code § 340:75-3-120

Added at 30 Ok Reg 389, eff 7-1-13

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

Amended by Oklahoma Register, Volume 34, Issue 24, September 1, 2017, eff. 9/15/2017

Amended by Oklahoma Register, Volume 35, Issue 24, September 4, 2018, eff. 9/17/2018

Amended by Oklahoma Register, Volume 37, Issue 24, September 1, 2020, eff. 9/15/2020

Amended by Oklahoma Register, Volume 39, Issue 10, February 1, 2022, eff. 12/21/2021

Amended by Oklahoma Register, Volume 39, Issue 24, September 1, 2022, eff. 9/15/2022