Chapter 5101:2-53 Indian Child Welfare Act

5101:2-53-01 Definitions related to the Indian Child Welfare Act.

(A) "Active efforts" means prompt and diligent efforts to:

(1) Determine the child's tribe(s) for which he or she may qualify for membership.

(2) Contact the child's tribe(s) when known.

(3) Provide remedial services and rehabilitative programs designed to prevent the breakup of the family.

(4) Coordinate with the child's tribe or any Indian organization to assist the Indian parent or Indian custodian with services needed to avoid the need for placement, or in the event placement becomes necessary, to serve as a placement for the child.

(5) Make arrangements to ensure visitation with the extended family, or if there is not family in the area, with other tribal members to support the child's cultural connections.

(6) Coordinate with the child's tribe and family to identify significant cultural and important familial events and arrange for the child's attendance.

(B) "Child custody proceedings" include foster care placements, termination of parental rights, preadoptive placements, and adoptive placements. A placement that meets the definition of foster care placement and results from an act that would not be deemed a crime if committed by an adult such as a status offense, is a child custody proceeding under the Indian Child Welfare Act (ICWA) as reauthorized by the "Child and Family Services Improvement Act" of 2006. A child custody placement pursuant to a divorce where someone other than one of the parents will obtain custody of the child is also a child custody proceeding under ICWA.

(C) "Extended family member" is defined by the law or custom of the Indian child's tribe, or in the absence of such law or custom, a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or step-parent.

(D) "Foster care placement" is any action where an Indian child is removed from his or her parents or Indian custodian for temporary placement in a home or institution, including guardianship and conservatorship, and where the parent or custodian cannot have the child returned upon demand but where parental rights have not been terminated.

(E) "Indian" is any person who is a member of an Indian tribe or an Alaskan native who is a member of a regional corporation as defined by the Alaska Native Claims Settlement Act 43 U.S.C. Sec. 1606(1971) .

(F) "Indian child" is any unmarried person under age eighteen and is either:

(1) A member of an Indian tribe.

(2) Eligible for tribal membership in an Indian tribe and is the biological child of a member of an Indian tribe, or an Alaskan native who is a member of a regional corporation as defined by the Alaska Native Claim Settlement Act.

(G) "Indian child's tribe" is the Indian tribe in which an Indian child is a member or eligible for membership, or in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.

(H) "Indian custodian" is any Indian person who has legal custody of an Indian child under either tribal law or custom or under state law or to whom temporary physical care, custody, or control has been transferred by the parent of the child.

(I) "Indian organization" is any group, association, partnership, corporation, or legal entity owned or controlled by Indians, or a majority of whose members are Indian.

(J) "Indian tribe" is any tribe, band, nation, or other organized group or community of Indians recognized by the secretary of the interior as eligible for services provided to Indians because of their status as Indians, including any Alaska native village as defined by the Alaska Native Claims Settlement Act, 43 U.S.C. Sec. 1602, as amended.

(K) "Parent" means the biological parent or parents of an Indian child or an Indian person who has adopted an Indian child either under state law or tribal law or custom. This includes the non-Indian biological parent but it does not include a putative father whose paternity has not been established.

(L) "Qualified expert witness" means an expert on the child's tribe. In addition, the bureau of Indian affairs has promulgated "Guidelines for State Courts" which interpret the ICWA. The following characteristics are set forth at 44 Federal Register 67,593 (1979) as those most likely to qualify a witness as an expert under ICWA:

(1) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices.

(2) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child's tribe.

(3) A professional person having substantial education and experience in the area of his or her specialty.

(M) "Reservation" means Indian country as defined in section 1151 of Title 18, U.S.C. (2006), and any lands which are either held by the United States in trust for the benefit of any Indian tribe or individual, or held by any Indian tribe or individual subject to a restriction by the U.S. against alienation.

(N) "State court of competent jurisdiction" means an Ohio juvenile court.

(O) "Secretary" means U.S. secretary of the interior.

(P) "Tribal court" is a court having jurisdiction over child custody proceedings. It may be an Indian court of offenses, a court established and operated under tribal law or custom, or any other administrative body of a tribe which is vested with authority over child custody proceedings.

(Q) "Tribal intervention" means a tribe may act on its right to participate in a child custody proceeding. This intervention can be wide in its interpretation; the tribe may request to transfer the case to tribal court ( a transfer of jurisdiction) or the tribe may choose to only monitor the case through court records. Transfer of jurisdiction can be requested by either the parent or the tribe. A tribe may intervene at any point in an Indian child custody proceeding.

Replaces: 5101:2-42-49

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.16
Rule Amplifies: 5103.03, 5153.16
Prior Effective Dates: 3/20/87, 2/1/03

5101:2-53-02 Administrative responsibilities and record keeping for children affected by the Indian Child Welfare Act.

(A) Public children services agencies (PCSA) and private child-placing agencies (PCPA) (hereinafter referred to as "agencies") shall act in accordance with the requirements and policies set forth in rules 5101:2-53-01 to 5101:2-53-08 of the Administrative Code related to the guidelines set by the Indian Child Welfare Act(ICWA) as reauthorized by the "Child and Family Services Improvement Act" of 2006. These sections of the Administrative Code are designed to implement the requirements of Public Law 95-608 the "Indian Child Welfare Act," which vests tribal courts with jurisdiction over custody proceedings involving Indian children to assure that their culture is protected and that services provided to the Indian child are in the child's best interest.

(B) For record keeping and reporting requirements, the agency shall maintain a case record for every Indian child in its care or custody. The case record shall be maintained in the state automated child welfare information system (SACWIS) in accordance with rule 5101:2-39-02 or 5101:2-33-23 of the Administrative Code.

(C) The Indian child's case record must also contain the complete record of placement determination, including documentation regarding efforts to comply with the required order of placement preference as contained in rule 5101:2-53-08 of the Administrative Code and this information shall be accessible within SACWIS.

(D) The agency shall submit within seven days, upon request from the Ohio department of job and family services (ODJFS), a complete case record for each Indian child in the agency's custody or maintain the case record within SACWIS.

(E) Whenever an Indian child is placed by or leaves the custody of an agency, that agency shall complete a JFS 01646 "Report of Indian Child Placement." (rev. 11/2007). The JFS 01646 shall be submitted to ODJFS or documented in SACWIS within fourteen calendar days of the child's placement or termination from custody.

Replaces: 5101:2-42-48 and 5101:2-42-58

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.16
Rule Amplifies: 5103.03, 5153.16
Prior Effective Dates: 3/20/87, 4/1/87, 2/1/03

5101:2-53-03 Determination of Indian status, tribal eligibility and membership.

(A) The public children services agency (PCSA) or the private child placing agency (PCPA) shall inquire upon the initial contact in every case to determine a family or child's Indian status. Failure to identify Indian children can nullify court proceedings that have not been conducted in accordance with the Indian Child Welfare Act (ICWA) as reauthorized by the "Child and Family Services Improvement Act" of 2006.

(B) Upon preliminary contact with a family, if the child's parents are unavailable or unable to provide information regarding the Indian heritage, the agency shall consider the following and document in the case record:

(1) A consultation with relatives or collaterals providing information which suggests the parent and the child may be Indian.

(2) An examination of any other information bearing on the determination of the child's Indian heritage, such as a review of all documentation in the file, including contact with previous caseworkers and or communication from other sources, (i.e. Indian tribes and Indian organizations).

(C) Once any suggestion of Indian heritage is discovered by the agency, the agency shall follow all of the Indian child welfare rules and guidelines as outlined by the ICWA, until otherwise determined that the family or child is not of Indian heritage or is not eligible for membership to a federally recognized tribe.

(D) When information is obtained that suggests a child may be of Indian heritage but the tribe cannot be determined, the agency shall contact the bureau of Indian affairs (BIA), pursuant to paragraph (E) of this rule, to determine if:

(1) The birth place of the child or parent is known to be a common residence of an Indian family.

(2) The surname of the child or parent is one identified to be common among members of Indian tribes.

(E) In order for the case worker to determine if the child may be an Indian child and is a tribal member or eligible for membership, the tribe or possible tribes identified shall be contacted within fourteen days. The agency shall seek written verification from the tribe regarding the child's eligibility for tribal membership. The agency shall contact the tribe by fax and submit a request by certified letter to the tribe. The agency shall bring to the juvenile court's attention any documentation submitted by the tribe and the agency's efforts to verify the child's Indian status. The agency may contact the Ohio department of job and family services (ODJFS) for assistance as needed. Sources of verification include, but are not limited to, the following:

(1) "U.S. Bureau of Indian Affairs, Minneapolis Area Midwest Regional Director, Bureau of Indian Affairs, One Federal Drive, Room 550, Minneapolis, Minnesota 55111-4007."

(2) "Bureau of Indian Affairs, 1951 Constitution Avenue, Northwest, Washington, D.C. 20245."

(F) If the juvenile court takes action to verify the child's Indian heritage, the agency shall provide the court with assistance if so requested.

(G) The agency's inquiry to the tribe shall be sent "return receipt requested" to a membership committee, an enrollment clerk, or individual who is accustomed to responding to questions about tribal membership. If the tribe does not respond, the caseworker shall contact the tribe by telephone and document contacts made in the case record.

(H) If a child's biological parent is a member of an Indian tribe but the child is not currently a member of a tribe, the caseworker shall ascertain whether the child is eligible for membership through the process outlined in paragraphs (B) and (E) of this rule. In order to apply for membership, the family shall submit an application for the child to become a member of his or her tribe. The agency shall assist the family in filing required paperwork.

(I) A child who is officially determined by the tribe not to be a member nor eligible for membership is not subject to the requirements of the ICWA. Once tribal ineligibility has been determined, tribal status should be clearly documented in the case record, along with the date and source of documentation. In such cases, agency staff shall:

(1) Document in the case record steps taken to determine the child's Indian/tribal ancestry and the tribe's written statement declaring the child ineligible for membership.

(2) Incorporate in any court hearing the tribe's written statement declaring the child ineligible for membership.

Replaces: 5101:2-42-52

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.16
Rule Amplifies: 5103.03, 5153.16
Prior Effective Dates: 4/1/87, 2/1/03

5101:2-53-04 Emergency removal of the Indian child.

(A) The public children services agency (PCSA) shall provide temporary emergency care for an Indian child in accordance with rules 5101:2-42-04, 5101:2-39-01 and 5101:2-39-12 of the Administrative Code or rule 5101:2-39-12.1 or , if applicable, 5101:2-39-03 of the Administrative Code when such care is necessary to protect the child from immediate or threatened harm.

(B) The agency can take emergency protective custody of any Indian child pursuant to paragraph (B) in rule 5101:2-39-01 of the Administrative Code regardless of the jurisdictional status of his or her tribe as long as the child is in danger of imminent physical damage or harm.

(C) When emergency removal of a child from his or her own home is necessary, the PCSA shall consider the child's racial or ethnic background to determine Indian heritage. In such cases where the circumstances during the removal are not favorable to identify or inquire if a child is of Indian heritage, upon the agencies initial contact the case worker shall take the required steps to determine the Indian status of eligibility and membership. The agency shall act in accordance with the requirements set forth in paragraph (A) in rule 5101:2-53-03 of the Administrative Code.

(D) The agency shall obtain a court order authorizing continued protective custody within twenty-four hours of the removal or placement. The petition filed in such proceeding shall contain information required by rule 5101:2-39-05 of the Administrative Code and the following information:

(1) The name, age, tribal affiliation(s) and last known address of the Indian child.

(2) The name and address of the child's parent(s) and/or Indian custodian(s), if any, and tribe. The agency shall provide a detailed explanation of active efforts made to locate the parents, Indian custodian and/or the Indian child's tribe.

(3) A detailed account of the circumstances which led the agency to conclude that the child would suffer imminent physical damage or harm.

(4) A specific plan of action the agency is following, including services provided, to restore the child to his or her parent(s) or Indian custodian, or to transfer the child to the jurisdiction of the appropriate Indian tribe.

(E) If the tribe has not taken exclusive jurisdiction and the agency determines continuous placement needs for an Indian child, the agency shall explore available placement resources which meet the placement requirements in rule 5101:2-53-08 of the Administrative Code.

Replaces: 5101:2-42-57

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.16, 2151.31
Rule Amplifies: 5103.03, 5153.16, 2151.31
Prior Effective Dates: 4/1/87, 1/1/90, 2/1/03

5101:2-53-05 Voluntary placement for temporary custody of Indian child.

(A) A public children services agency (PCSA) or private child placing agency (PCPA) may accept a voluntary placement agreement for temporary custody of an Indian child from a parent, guardian or Indian custodian for the purpose of placing the child in substitute care only if the agreement is executed upon an JFS 01645 "Agreement for Temporary Custody of Child" (rev. 4/2006) and is recorded before a juvenile court, or a tribal court, if jurisdiction has been transferred there.

(B) The agency shall submit a notification of the voluntary placement agreement to the tribe's designated agent or tribal court. The tribe still retains the right to participate as an interested party or to intervene at any point, even if the tribe has declined to be involved.

(C) An agency shall abide by the agreement for temporary custody policies set forth in rules 5101:2-42-06, 5101:2-42-07 and 5101:2-42-08 of the Administrative Code, and shall observe and document in the child's case record that:

(1) The agreement for temporary custody was not executed until at least ten days after the birth of the Indian child. Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.

(2) The terms and consequences of the agreement for temporary custody shall be fully explained in detail. If the agency has reason to believe that the parent or Indian custodian will not understand the agreement for temporary custody because of possible limited English proficiency, a copy of the agreement shall be sent to the bureau of Indian affairs (BIA) area office nearest to the residence of that person, and a request is made of BIA to arrange for translation in the language that the parent or Indian custodian best understands.

(3) The terms and consequences of the agreement for temporary custody are recorded in the case record with the following information:

(a) The parent or legal guardian is requesting the agency take custody and provide services.

(b) The parent or legal guardian or custodian is immediately and temporarily unable to fulfill his or her parental responsibilities.

(i) The child cannot remain at home due to a temporary crisis in the family, and cannot safely stay with a member of the extended family or another responsible adult well known to the child.

(ii) The child needs to be placed outside the home due to problems in the family that could compromise the safety of a family member, and a placement of limited duration with assistance from the agency providing intensive services that are likely to reunite the family and reduce the safety concerns.

(D) Any parent or Indian custodian may withdraw consent to a foster care placement under law at any time, orally or by written notification and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.

(E) If a parent or Indian custodian request the termination of the voluntary agreement and the agency has reason to believe the child will be unsafe if returned home to the parent or Indian custodian, the agency shall submit a request to the juvenile court requesting temporary or permanent custody.

Replaces: 5101:2-42-55

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5103.15, 5153.16
Rule Amplifies: 5103.03, 5103.15, 5153.16
Prior Effective Dates: 4/1/87, 1/1/90, 2/1/03

5101:2-53-06 Involuntary custody of Indian children.

(A) Prior to an involuntary custody court proceeding, the public children services agency (PCSA) or private child placing agency (PCPA) shall provide the court with information which either proves or suggests a child is a member of an Indian tribe and is eligible to be within the jurisdiction of a tribal court pursuant to rule 5101:2-53-03 of the Administrative Code.

(B) All juvenile court proceedings are to be notified to the tribe's designated agent or tribal court by the agency or every proceeding affecting their tribal member even if the tribe has declined to be involved. The tribe still retains the right to participate as an interested party or to intervene at any point in the proceeding.

(C) Notices shall be sent by the agency to the parents or Indian custodian and the Indian child's tribe, region director at the bureau of Indian affairs (BIA), and the U.S. secretary of the interior. A notice shall be sent by registered mail with "return receipt requested" and the notice shall include:

(1) The name of the Indian child.

(2) The Indian child's tribal affiliation.

(3) A copy of the petition, complaint, or other document by which the proceeding was initiated.

(4) The name of the petitioner and the name and address of the petitioner's attorney.

(5) A statement of the right of the parent or Indian custodian and the child's tribe to intervene in the proceeding.

(a) If there is a reason to believe that the parent or Indian custodian will not understand the notice because of possible limited English proficiency, a copy of the notice shall be sent by the agency to the BIA area office nearest to the residence of that person, and a request made of BIA to arrange for translation in the language that the parent or Indian custodian best understands.

(b) The PCSA or PCPA shall document the request for translation in the file.

(6) A statement of the right of the parent or Indian custodian and the Indian child's tribe that no temporary or permanent court commitment proceeding or permanent court commitment proceeding shall be held until at least ten days after the parent or Indian custodian and the Indian child's tribe have received notice of the agency's intention to commence such an involuntary court action. This statement shall also include the provision that, upon request, the parent or Indian custodian or the Indian child's tribe shall be granted up to twenty additional days to prepare for the proceedings.

(7) The location, mailing address, and telephone number of the court.

(8) A statement of the right of the parent or Indian custodian or the Indian child's tribe to petition the court to transfer the proceeding to the Indian child's tribal court.

(9) A statement of the potential legal consequences of an adjudication on future custodial rights of the parents or Indian custodians.

(10) A statement in the notice to the Indian tribe that since child custody proceedings are usually conducted on a confidential basis, tribal officials should keep confidential the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe's right under the act.

(D) If the identity or location of the parent or Indian custodian and the tribe cannot be determined, the agency shall send the same type of notification identified in paragraph (B) of this rule in the same manner to the region director at BIA and U.S. secretary of the interior, who shall have fifteen days after receipt to notify the parents or Indian custodian and the tribe.

(E) The agency shall be able to document with clear and convincing evidence, including testimony by one or more qualified witnesses, that the continued custody by the parent or Indian custodian would likely result in serious physical or emotional harm to the child. To be clear and convincing, the evidence shall show:

(1) The existence of particular conditions in the home that are likely to result in serious emotional or physical damage to the particular child who is the subject of the proceeding.

(2) The evidence shall show the causal relationship between the conditions that exist and the damage that is likely to result.

(F) When the agency recommends foster placement, an affidavit documenting active efforts shall be submitted to the court and contains all of the following information and record in the case record:

(1) A description of active efforts to reunify the family since the last disposition or review hearing and if those efforts were not successful, an explanation regarding why.

(2) A description of active efforts to coordinate with the child's tribe or any Indian organization in assisting the Indian parent or Indian custodian with services needed to avoid the need for placement, and an explanation of why these services were unsuccessful.

(3) An explanation of why the child cannot be protected from serious emotional or physical harm if the child remains in the home even if services are provided to the child and family.

(4) An explanation of the diligent efforts made to contact the child's extended family about providing a placement for the child or, if any members are not known, diligent efforts made to contact the child's tribe and other local Indian organizations for assistance in identifying and contacting extended family, other tribal members, or Indian families for placement.

(5) That efforts were made by the agency to ensure the child's visitation with extended family, or with other tribal members, to ensure the child's ongoing participation in his/her culture.

(6) That efforts were made by the agency for the child to attend significant cultural and familial events. These arrangements are to be coordinated with the child's tribe.

(G) The agency shall submit a report that contains the following information at the review hearing:

(1) A statement of family changes needed to correct the problems necessitating intervention, with timetables for accomplishing them.

(2) A description of services to be provided to assist the family, specifically identifying those made available with assistance from the tribe or an Indian organization.

(3) A description of services to be provided to ensure the child's ongoing connection to his/her culture while placed outside of his/her family, including attendance at significant cultural events.

(4) A description of actions to be taken by the parents to correct the identified problems, and of the parents' compliance with the case plan thus far.

(5) The agency shall be able to document that active efforts have been made to provide services to rehabilitate or prevent the breakup of the Indian family and that these efforts were not successful.

(H) The agency shall act in accordance with the requirements and policies set forth in rule 5101:2-42-95 of the Administrative Code. When the agency submits a report requesting termination of parental rights to the court, the following items should be included:

(1) The description of circumstances supporting the grounds for termination.

(2) A description of the active efforts made to provide remedial services and rehabilitative programs as coordinated efforts to prevent the breakup of the family and why these efforts were unsuccessful.

(3) A description of the active efforts made to assist the Indian parent or custodian with services needed to avoid termination of parental rights and an explanation of why these efforts were unsuccessful.

(4) An explanation of why the child cannot be protected from the identified problems in the home.

(5) Tribal correspondence or supporting documentation sent to the agency and a summary of the agency's understanding of the tribe's position regarding the permanency plan.

(6) An explanation of the active efforts sought in the placement preference and contacting the child's tribe, extended family, or other local Indian organizations about providing an appropriate placement for the child.

(7) If the child is not placed within the Indian tribe's preference, an explanation of why the child cannot be moved to a placement that meets the preferences established within the Indian Child Welfare Act (ICWA).

(8) A description of arrangements made by the agency to ensure visitation is protected and all efforts made to support the child's cultural connections.

(9) A permanency plan for the child.

(I) In accordance with 25 U.S.C. section 1912(f) (2001) , no termination of parental rights may be ordered in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(J) Upon the agency's determination that there are compelling reasons not to pursue terminating parental rights, the agency shall submit a planned permanent living arrangement to the court. The planned permanent living arrangement report shall include the following:

(1) Documented facts and circumstances refuting the grounds for termination of parental rights. The agency has to show that although the child cannot be returned home, termination of parental rights is not in the child's best interest.

(2) A description of why the planned permanent living arrangement is in the child's best interest.

(3) A description of the active efforts made to provide remedial services and rehabilitative programs as coordinated efforts to prevent the breakup of the family and why these efforts were unsuccessful.

(4) An explanation of the active efforts made to contact the child's tribe, extended family, and other local Indian organizations for assistance in identifying a culturally appropriate placement for the child.

(5) If the child is not placed following the tribes placement preference, an explanation of why the child cannot be moved to a placement that meets the preferences established within ICWA.

(6) A description of arrangements made by the agency to ensure visitation with extended family, or, if there is no extended family, with other tribal members, to support the child's cultural connections.

(7) A summary of the tribe's position regarding the permanency plan, including any attachments or supporting documents sent by the tribe to the agency.

(8) A plan to ensure the stability of the planned permanent living arrangement.

Replaces: 5101:2-42-53

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.16
Rule Amplifies: 5103.03, 5153.16
Prior Effective Dates: 3/20/87, 2/1/03

5101:2-53-07 Permanent surrender or parental consent to adoptive placement of Indian children.

(A) A public children services agency (PCSA) or private child placing agency (PCPA) may accept a permanent surrender of an Indian child by a parent or Indian custodian only if the surrender is executed on a JFS 01666 "Permanent Surrender of Child" (rev. 6/2006) and is recorded before a juvenile court, or a tribal court if jurisdiction has been transferred there.

(B) The agency shall act in accordance by the permanent surrender requirements set forth in rules 5101:2-42-09 and 5101:2-42-95 of the Administrative Code with the exception that a permanent surrender for an Indian child cannot be executed until at least ten days after his or her birth.

(C) All juvenile court proceedings are to be notified to the tribe's designated agent or tribal court by the agency of every proceeding affecting their tribal member even if the tribe has declined to be involved. The tribe still retains the right to participate as an interested party or to intervene at any point in the proceedings.

(D) The agency shall recognize and adhere to the following rights of parents of Indian children relative to the withdrawal of permanent surrender or parental consent to adoptive placements:

(1) A permanent surrender action or consent to adoption may be withdrawn at any time for any reason prior to the issuance of a final decree of adoption. Upon such withdrawal, the Indian child is to be returned to his or her parent or Indian guardian.

(2) Within two years after the entry of a final decree of adoption, the parent or Indian custodian may withdraw consent to adoption if the parent or Indian custodian can prove parental consent was obtained through fraud or duress. Upon court order, the Indian child is to be returned to the parent or Indian custodian.

(E) If the agency has reason to believe that the parent or Indian custodian will not understand the permanent surrender because of possible limited English proficiency, a copy of the JFS 01666 form shall be sent to the bureau of Indian affairs (BIA) area office nearest to the residence of that person, and a request is made of BIA to arrange for translation in the language that the parent or Indian custodian best understands.

Replaces: 5101:2-42-54

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.16
Rule Amplifies: 5103.03, 5153.16
Prior Effective Dates: 4/1/87, 2/1/03

5101:2-53-08 Placement preference of Indian children.

(A) The placement preference requirements shall be in accordance with the Indian Child Welfare Act (ICWA) (1978), based on the prevailing social and cultural standards:

(1) In which the parent or extended family resides; or

(2) With which the parent or extended family members maintain social and cultural ties.

(B) When an Indian child must be removed from his or her home and placed into substitute care (nonadoptive), the public children services agency (PCSA) or private child placing agency (PCPA) shall:

(1) Select the least restrictive setting, in a most family like setting to meet the child's needs.

(2) Place within reasonable proximity to his or her home, taking into account any special needs of the child.

(C) In any substitute or preadoptive placement consideration, the agency shall consider placement preference to the following in order from least restrictive to most restrictive:

(1) A member of the Indian child's extended family.

(2) A foster home licensed, approved, or specified by the Indian child's tribe.

(3) An Indian foster home certified by the Ohio department of job and family services (ODJFS) or another state agency with such authority.

(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.

(D) When the Indian child's tribe establishes a different order of preference by resolution for a substitute care placement (nonadoptive) or an adoptive placement, the agency or court effecting the placement shall abide by the tribe's order so long as:

(1) The placement is the least restrictive setting appropriate to the particular needs of the child.

(2) Where appropriate, in a voluntary placement agreement only, the preference of the Indian child or parent shall be considered. If a consenting parent evidences a desire for anonymity, the court shall give weight to such desire in applying the preferences.

(E) In any adoptive placement of an Indian child, a placement preference shall be given, to the following:

(1) A member of the child's extended family.

(2) Other members of the Indian child's tribe.

(3) Other Indian families.

(F) If the agency believes that there is good cause not to abide by the order of placement preference, then its findings shall be based on one or more of the following considerations:

(1) The request of the biological parents or, when age-appropriate, by the Indian child.

(2) The extraordinary physical or emotional needs of the child as determined by a qualified expert witness.

(3) The unavailability of preferred families after a diligent search for such families has been conducted.

(G) The burden of establishing the existence of good cause not to follow the order of placement preference is the responsibility of the agency, if the agency's decision is that the placement preference not be followed.

Replaces: 5101:2-42-56

Effective: 04/20/2008
R.C. 119.032 review dates: 02/01/2013
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.16
Rule Amplifies: 5103.03, 5153.16
Prior Effective Dates: 3/20/87