Okla. Admin. Code § 340:75-6-40.9

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

Section 340:75-6-40.9 - Termination of parental rights (TPR)

(a)Effect of TPR. Per Section 1-4-906 of Title 10A of the Oklahoma Statutes (10A O.S. § 1-4-906), TPR terminates the parent-child relationship including the parent's right to:

(1) custody of the child;

(2) visit the child;

(3) control the child's training and education;

(4) apply for guardianship of the child;

(5) consent to the child's adoption;

(6) the child's earnings; and

(7) inherit from or through the child; although, termination of parental rights does not affect the child's right to inherit from the parent.

(b)Legal grounds for termination of parental rights.

(1) Per 10A O.S. § 1-4-904, a court may not terminate a parent's parental rights unless the child is adjudicated deprived prior to, or concurrent with, TPR proceedings, and the court makes the finding that TPR is in the child's best interests.

(2) Per 10A O.S. § 1-4-901, a TPR petition or motion may be filed by the district attorney (DA) or by the attorney for the child alleged to be or adjudicated deprived.

(3) Per 10A O.S. § 1-4-904, the court may terminate parental rights on the grounds listed in (A) through (Q) of this paragraph.

(A)Consent. The parent may consent to termination of his or her parental rights by signing a voluntary consent form to relinquish parental rights.

(i) The written, voluntary consent signed under oath, recorded before a judge of a court of competent jurisdiction, is not revocable unless the parent can provide clear and convincing evidence that the consent was executed by reason of fraud or duress.

(ii) In any proceeding for a voluntary TPR to an Indian child, the parent's consent may be withdrawn for any reason at any time prior to the entry of a final decree of termination. Any consent given prior to or within 10-calendar days after the birth of the Indian child is not valid.

(B)Abandonment. The court may find that the parent who is entitled to custody of the child has abandoned the child.

(C)Abandonment of an Infant. The court may find that the child, 12 months of age and younger, was abandoned.

(D)Non-compliance with voluntary placement agreement. The court may find that the child's parent:

(i) voluntarily placed physical custody of the child with Oklahoma Human Services (OKDHS) or a child-placing agency for out-of-home placement;

(ii) has not complied with the placement agreement; and

(iii) during the child's period of voluntary out-of-home placement, has not demonstrated a firm intent to resume physical custody of the child or make other permanent legal arrangements for the child's care.

(E)Failure to correct condition(s). The court may find that the parent failed to correct the condition(s) that led to the child's adjudication as a deprived child although the parent was given at least three months to correct the condition(s).

(F)Same conditions - another child. The court may find that another child of a parent whose parental rights to any other child were terminated and the conditions that led to the prior TPR were not corrected.

(G)Failure to support. The court may find that the non-custodial parent has willfully failed, refused, or neglected to contribute to the child's support for at least six out of the last 12 months immediately preceding the filing of the termination petition or motion:

(i) as specified by a court order for child support, or

(ii) according to the parent's financial ability to support the child, when an order for child support does not exist. Incidental or token support is not construed or considered when determining if the parent maintained or contributed to the child's support.

(H)Certain criminal convictions. The court may find a parent has a conviction in a criminal action, in any state, of any of the following acts:

(i) permitting a child to participate in pornography;

(ii) rape or rape by instrumentation;

(iii) lewd molestation of a child younger than 16 years of age;

(iv) child abuse or neglect;

(v) enabling child abuse or neglect;

(vi) causing the death of a child as a result of the physical or sexual abuse, chronic abuse, or chronic neglect of the child;

(vii) causing the death of the child's sibling as a result of the physical or sexual abuse, chronic abuse, or chronic neglect of the child's sibling;

(viii) murder of any child or aiding or abetting, attempting, conspiring, or soliciting to commit murder of any child;

(ix) voluntary manslaughter of any child;

(x) a felony assault that resulted in serious bodily injury to the child or another child of the parents; or

(xi) murder or involuntary manslaughter of the child's parent or aiding or abetting, attempting, conspiring, or soliciting to commit murder of the child's parent.

(I)Heinous or shocking abuse or neglect. The court may find that a parent has abused or neglected any child or failed to protect any child from abuse or neglect that is heinous or shocking.

(J)Prior abuse or neglect. The court may find that a parent previously abused or neglected the child or the child's sibling, or failed to protect the child or sibling from abuse or neglect and the child or sibling was subjected to subsequent abuse.

(K)Rape by the parent. The court may find the child was conceived as a result of a rape perpetrated by the parent whose rights to the child are sought to be terminated.

(L)Incarceration. While a parent's incarceration in and of itself is not sufficient to deprive a parent of parental rights, the court may find continued parental rights of an incarcerated parent whose rights are sought to be terminated would result in harm to the child based on the consideration of factors including, but not limited to, the:

(i) duration of incarceration and its detrimental effect on the parent-child relationship;

(ii) previous convictions resulting in involuntary confinement in a secure facility;

(iii) history of criminal behavior, including crimes against children;

(iv) the child's age;

(v) evidence of abuse or neglect or failure to protect the child or the child's siblings by the parent;

(vi) current relationship between the parent and child; and

(vii) manner in which the parent exercised parental rights and duties in the past.

(M)Behavioral health illness or incapacity. The court must find the factors in (i) and (ii) of this subparagraph exist.

(i) The parent has a diagnosed cognitive disorder, an extreme physical incapacity, or a medical condition, including behavioral health or substance dependency, that renders the parent incapable of adequately and appropriately exercising parental rights, duties, and responsibilities within a reasonable time, considering the child's age. A finding that a parent has a diagnosed cognitive disorder, an extreme physical incapacity, or a medical condition, including behavioral health or substance dependency, does not in and of itself deprive the parent of parental rights.

(ii) Allowing the parent to have custody would cause the child actual harm or harm in the near future. A parent's refusal or non-compliance with treatment, therapy, medication, or assistance for the condition can be used as evidence.

(N)Prior adjudication of same conditions. The court may find the:

(i) condition that led to the deprived adjudication was the subject of a previous deprived adjudication of this child or this child's sibling; and

(ii) parent was given an opportunity to correct the conditions that led to the determination of the initial deprived child.

(O)Substantial erosion of parent-child relationship. The court may find a substantial erosion of the relationship between the parent and child exists caused at least in part by:

(i) the parent's serious or aggravated neglect of the child, physical or sexual abuse, or sexual exploitation of the child;

(ii) a prolonged and unreasonable absence of the parent from the child; or

(iii) the parent's unreasonable failure to visit or communicate in a meaningful way with the child.

(P)Lengthy foster care of child years of age and older.

(i) The court may find:

(I) a child years of age and older at the time of placement was placed in foster care by OKDHS for 15 of the most recent 22 months preceding the filing of the TPR petition or motion; and

(II) at the time of the filing of the TPR petition or motion, the child cannot be safely returned to the home of the parent.

(ii) A child is considered to have entered foster care on the earlier of the:

(I) adjudication date; or

(II) date 60-calendar days after the date the child was removed from his or her home.

(Q)Lengthy foster care of a child younger than 4 years of age.

(i) The court may find a child younger than 4 years of age at the time of placement:

(I) was placed in foster care by OKDHS for at least six of the 12 months preceding the filing of the TPR petition or motion; and

(II) the child cannot be safely returned to the home of the parent.

(ii) A child is considered to have entered foster care on the earlier of the:

(I) adjudication date; or

(II) date 60-calendar days after the date the child was removed from his or her home.

(iii) The court may consider:

(I) circumstances of the parent's failure to develop and maintain a parental bond with the child in a meaningful, supportive manner; and

(II) if allowing the parent to have custody would likely cause the child actual serious psychological harm or harm in the near future as a result of the child's removal from the substitute caregiver due to the existence of a strong, positive bond between the child and caregiver.

(c)Mandatory petition or motion for TPR. Per 10A O.S. § 1-4-902, the DA is required to file a petition or motion to terminate the parent-child relationship and parental rights with respect to a child joins in the petition or motion, when filed by the child's attorney in any of the circumstances detailed in (1) through (4) of this subsection.

(1)The child is in out-of-home care for 15 out of the most recent 22 months. Prior to the end of the fifteenth month, the child was placed in foster care by OKDHS for 15 of the most recent 22 months. The child is considered to have entered foster care on the earlier date:

(A) of adjudication as a deprived child; or

(B) 60-calendar days after the date the child was removed from his or her home.

(2)The child is determined to be an abandoned infant. A petition or motion to TPR is filed no later than 60-calendar days after the child is judicially determined to be an abandoned infant.

(3)Reasonable efforts to reunite are not required due to certain felony convictions of the parent. A TPR petition or motion is filed no later than 60-calendar days after the court determines that reasonable efforts to reunite are not required due to a parent's felony conviction of any of the following acts:

(A) permitting a child to participate in pornography;

(B) rape, or rape by instrumentation;

(C) lewd molestation of a child younger than 16 years of age;

(D) child abuse or neglect;

(E) enabling child abuse or neglect;

(F) causing a child's death as a result of the physical or sexual abuse, chronic abuse, or chronic neglect of the child;

(G) causing the death of the child's sibling as a result of the physical or sexual abuse, chronic abuse, or chronic neglect of the child's sibling;

(H) murder of any child or aiding or abetting, attempting, conspiring in, or soliciting to commit murder of any child;

(I) voluntary manslaughter of any child;

(J) a felony assault that resulted in serious bodily injury to the child or another child of the parent; or

(K) murder or voluntary manslaughter of the child's parent, or aiding or abetting, attempting, conspiring in, or soliciting to commit murder of the child's parent; or

(4)The parent made no measurable progress in correcting conditions. No later than 90-calendar days after the court ordered the individualized service plan, the court may file a TPR petition when the parent has made no measurable progress in correcting the conditions that caused the child to be adjudicated deprived.

(d)DA not mandated to file petition or motion to TPR under certain conditions. Per 10A O.S. § 1-4-902, when any of the conditions in (1) through (3) of this subsection exist, the DA is not mandated to file a TPR petition or motion.

(1) At the option of OKDHS or by order of the court, the child is properly cared for by a relative.

(2) OKDHS documents a compelling reason for determining that filing a TPR petition would not serve the child's best interests and may include consideration that the:

(A) parents or legal guardians have maintained a relationship with the child and the child would benefit from continuing the relationship;

(B) child, who is 12 years of age and older, objects to the termination of the parent-child, legal relationship;

(C) child's foster parents are unable to adopt the child because of exceptional circumstances that do not include an unwillingness to accept legal responsibility for the child; but are willing and capable of providing the child with a stable and permanent environment, and the removal of the child from the physical custody of the foster parents would be seriously detrimental to the emotional well-being of the child because the child has substantial psychological ties to the foster parents;

(D) child is not capable of achieving stability when placed in a family setting; or

(E) child is an unaccompanied, refugee minor and the situation regarding the child involves international legal issues or compelling foreign policy issues.

(3) Reasonable efforts to reunite the child with his or her family are required and OKDHS has not provided services the state deems necessary for the child's safe return to his or her home, which are consistent with the time period in the state case plan.

(e)Parental rights not terminated at trial. When parental rights are not terminated at trial, the court schedules a permanency hearing within 30-calendar days, per 10A O.S. § 1-4-908. TPR failure at trial does not:

(1) deprive the court of its continuing jurisdiction over the child; or

(2) require the child's reunification with the parent when the child is adjudicated deprived.

(f)Adoption consent authority with TPR. When the court terminates parental rights and the child's custody is placed with OKDHS, the court must vest OKDHS with the authority to place the child, and consent to the child's adoption, per 10A O.S. § 1-4-907.

(g)Duty to provide access to identifying information to the Oklahoma State Department of Health (OSDH). OKDHS provides OSDH with access to the identifying information of all individuals who had their parental rights terminated and the conditions that led to the TPR finding, per 63 O.S. § 1-227.10.

Okla. Admin. Code § 340:75-6-40.9

Added at 30 Ok Reg 1363, 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 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