Or. Admin. R. 413-115-0090

Current through Register Vol. 63, No. 8, August 1, 2024

Section 413-115-0090 - Placement of Indian Children

(1) The Department must conduct a search for an appropriate placement, which includes, at a minimum:

(a) Contact with the appropriate representative from the Indian child's tribe;

(b) A search for available Oregon Indian foster homes;

(c) Contact with any Indian tribe and Indian organization that may have a viable placement resource; and

(d) Contact with the Indian child's extended family to the sixth degree of consanguinity.

(2)Foster care placement preferences.

(a) In determining the appropriate placement for an Indian child, the Department must contact the Indian child's tribe to determine if the tribe has established an order of placement preference.

(b) If the Indian child's tribe has established a different order of placement preference than that specified in subsection (c) of this section for Indian children of the tribe, the tribe's placement preferences apply, so long as the placement is the least- restrictive setting appropriate to the particular needs of the Indian child, as provided in subsection (d) of this section.

(c) If the Indian child's tribe has not established a different order of preference, the parental rights of the Indian child's parents have not been terminated, the Indian child is in need of placement or continuation in substitute care, and the court has not determined on the record that there is good cause to depart from the ORICWA prescribed placement preferences, preference must be given, in descending order as listed below, to a foster placement of the Indian child with:

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

(B) A foster home that is licensed, certified, approved, or specified by the Indian child's tribe;

(C) A foster home licensed or approved by a licensing authority in this state and in which one or more of the licensed or approved resource parent is an Indian foster home; or

(D) 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) The Indian child must be placed in the least restrictive setting that:

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

(B) Allows the Indian child's special needs, if any, and cultural needs to be met; and

(C) Is in reasonable proximity to the Indian child's home, a member of the Indian child's extended family, or siblings.

(e) The Department must inform the substitute caregiver that the child is an Indian child.

(3)Guardianship and Adoptive Placements.

(a) If the parental rights of the Indian child's parents have been terminated, or if an Indian child is in need of a guardianship or adoptive placement, and the court has not determined on the record that there is good cause to depart from the ORICWA prescribed placement preferences, the Indian child must be placed in descending order as listed below:

(A) In accordance with the order of preference established by the Indian child's tribe; or

(B) If the Indian child's tribe has not established placement preferences, according to the following order of preference:

(i) With a member of the Indian child's extended family;

(ii) With other members of the Indian child's tribe; or

(iii) With other Indian families.

(b) In determining the appropriate guardianship or adoptive placement for an Indian child, the Department must contact the Indian child's tribe to determine if the tribe has established an order of placement preference or has placement resources different those described in this section for Indian children of the tribe.

(4) Change of Placement.

(a) When an Indian child is moved from one placement setting to another or if the resource parent moves, the placement preferences outlined in this rule must be followed for each subsequent placement, unless the Indian child is returned to the parent or Indian custodian from whose custody the Indian child was originally removed.

(b) The Department must notify the parent, Indian custodian, and the Indian child's tribe in writing prior to a change in placement or before the foster family moves, as required in OAR 413-115-0050.

(c) The Department must inform the substitute caregiver that the child is an Indian child.

(5) Records of Placement.

(a) The Department must maintain a written record of each placement for each Indian child in the Department's information system.

(b) The Department must document, in detail, in the Department's information system, the efforts to comply with the order of placement preferences established by the tribe and ORICWA.

(c) When the Department moves the court to depart from the order of placement preferences established by the tribe or ORICWA, the Department bears the burden of providing to the court, by clear and convincing evidence, that there is good cause to depart from the order of placement preferences established by the tribe or ORICWA.

(d) Upon the request of the Indian child's tribe or the Department of the Interior, the Department must make available the record of every foster care, pre-adoptive, and adoptive placement of an Indian child for which the Department has records.

Or. Admin. R. 413-115-0090

CWP 2-2017(Temp), f. & cert. ef. 2-7-17 thru 8-5-17; CWP 9-2017, f. 8-5-17, cert. ef. 8/6/2017; CWP 123-2018, amend filed 12/12/2018, effective 12/12/2018; CWP 148-2020, temporary amend filed 12/31/2020, effective 1/1/2021 through 6/29/2021; CWP 16-2021, amend filed 06/29/2021, effective6/29/2021; CWP 32-2021, amend filed 12/30/2021, effective 1/1/2022

Statutory/Other Authority: ORS 418.005 & ORS 409.050

Statutes/Other Implemented: ORS 418.005, ORS 419.627, ORS 419B.171 & ORS 419B.192