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

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

(A) When the public children services agency (PCSA) or private child placing agency (PCPA) has custody of an Indian child, it shall select the least restrictive substitute care setting that :

(1) Most approximates a family, taking into consideration sibling attachment;

(2) Allows the Indian child's special needs to be met; and

(3) Is in reasonable proximity to the Indian child's home, extended family, or siblings.

(B) In any substitute or pre-adoptive placement of an Indian child where the Indian child's tribe has not established a different order of preference pursuant to paragraph (D) of this rule, the agency shall give preference in the following order to placement of the child with:

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

(2) A foster home that is 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; or

(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.

(C) The agency shall attempt to place siblings in the same home unless it is not in the child's or siblings' best interest.

(D) When the Indian child's tribe establishes a different order of preference by resolution for a non-adoptive substitute care placement , the agency shall abide by the tribe's order so long as the placement is the least restrictive setting appropriate to the particular needs of the child.

(E) In any adoptive placement of an Indian child, where the Indian child's tribe has not established a different order of preference pursuant to paragraph (F) of this rule, placement preference shall be given in the following order to placement of the child with:

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

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

(3) Other Indian families; or

(4) Other non-Indian prospective adoptive families.

(F) When the Indian child's tribe establishes a different order of preference by resolution for an adoptive placement, the agency shall abide by the tribe's order.

(G) In any substitute, pre-adoptive, or adoptive placement, where appropriate, the agency shall also consider the preference of the Indian child or the Indian child's parent.

(H) 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 one or both of the Indian child's parents upon their review of the placement options;

(2) The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;

(3) The presence of a sibling attachment that can be maintained only through a particular placement;

(4) The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live, as determined by a qualified expert witness;

(5) The unavailability of a suitable placement after a determination by the court that a diligent search has been conducted.

(I) 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.

(J) A placement of an Indian child shall not depart from the preferences based on:

(1) The socioeconomic status of any placement relative to another placement; or

(2) Ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of the Indian Child Welfare Act (ICWA) (1978).

(K) The agency shall maintain a record of every voluntary or involuntary foster care, preadoptive, and adoptive placement of an Indian child and make the record available within fourteen days of a request by an Indian child's tribe or the secretary. The record shall contain, at a minimum, the petition or complaint, all substantive orders entered in the child custody proceeding, the complete record of the placement determination, and if the placement departs from the placement preferences, detailed documentation of the efforts to comply with the placement preferences.

Effective: 2/1/2018
Five Year Review (FYR) Dates: 10/12/2017 and 02/01/2023
Promulgated Under: 119.03
Statutory Authority: 5103.03, 5153.166
Rule Amplifies: 5103.03, 5153.16
Prior Effective Dates: 03/20/1987, 04/20/2008, 02/01/2014