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Video Transcribed: If you’ve been watching my videos on the Indian Child Welfare Act good cause findings, this is probably the video you’ve been waiting on. This is the one where I talk about what is good cause.
My name is Ryan Cannonie, I am the Tahlequah Child Neglect Attorney for Wirth Law Firm in Tahlequah. I’ve done some other videos. We talked about the Indian Child Welfare Act. We talked about how to move through the tiers of placement preferences, you have to show good cause. If you have questions, if you just stumbled upon this video first, back up. Go watch the others. Otherwise, you’ll be lost right now.
So I have my cheat sheet up here in front of me, so don’t judge me, but I’ve got it to help go through all of this to each one of the different ways good cause has been found per the BIA Indian Child Welfare Act guidelines. Now, these are put out there to give courts some guidance. Most of this has already been incorporated in case of law or in some places, a statute. So I’m just going to go through these.
So your first one is one that I think I might have talked about in a previous video, probably like a year ago coming up on now, where we talked about the parents’ placement preference. So parents do get a choice, especially native parents, remember, this is all Native American children, parents do get some choice in this. Now, one problem you see come up is where parents say, “Hey, I want to pick this placement,” and that’s it.
That’s not what the guidelines actually say. The guidelines say the parents, that they reviewed placements, both the one they want and the one they don’t want, and then they can make a determination, that they can say, or kind of a recommendation to the court and that is a good cause. The court can take the parents’ recommendation after they’ve reviewed both placements and make that determination.
Now, here’s kind of a fun little twist on this is that it used to require both parents, but now under the new equal guidelines, it says the request of one or both. So you don’t actually have to have both parents making this. If one parent wants maybe their family to have the child in question, then they can make that statement to the court after they’ve reviewed both placement’s options. If maybe the other parent is not around, then this kind of gives a little bit more leeway for courts to look at what parents want.
A lot of times, parents want their extended family wants, aunts, uncles, brothers, sisters, grandparents to have the children, and that’s understandable. That keeps the child in the home, or not in the home of the parent, but in the home family group. So you have a child that has all those family connections and shared history.
But sometimes, and this is something that I went on training about a while back where when you have communities, especially in communities of color or minority communities who may not have all those blood relations, but you have other relationships, you have your aunties and your uncles that may not technically be blood-related, but they serve as almost like a godparent kind of situation. So this gives the parent a little more leeway to be able to try to find someone that they trust to have their children and their children trust to make this whole process a little easier on them.
Now, what’s the next one? So the request of the child if they are sufficient age and capacity to understand what they’re doing. So they have to be old enough to understand everything, but if you have, let’s say, a teenager, then they can go to the court and say, “Hey, this is where I want to be.”
Now, some states have put restrictions on this. Any child over 12, any child over 14. There are certain laws on that. You have to kind of talk to an attorney about the laws in your specific area. Extraordinary physical, mental, or emotional needs of the Indian child. Specialized treatment, is a child that either has emotional or mental needs that need to be met in a certain type of placement or physical needs if they have a lot of medical issues. That could also come into play here.
I’ve seen this with DHS a lot where there is a child that has substantial medical needs. They have to have specialized equipment, they have to have people trained, not just to use the equipment, but just how to watch and care for that child, and there’s not a suitable family member or tribal home that can accommodate this and the tribal will a lot of times agrees, say, “Hey, yes, we have a good cause reason to deviate from the placement preferences we’re supposed to pick and to put the child here.”
The unavailability of a suitable placement, so if there’s not home on that list that we’ve talked about, they have no extended family that either they don’t have any or they don’t have any that can watch them, or the extended family has reasons that they can’t take care of the kids, then this would be one that can come into play.
This one, actually, I saw more than anything else when I was a prosecutor just because of the lack of foster homes in general, but even more so the lack of tribal foster homes. So this one comes into play pretty often.
Now, one thing on this is that when we talk about unsuitable, DHS has their own policies and procedures of what is a suitable foster care placement. A lot of times, out of an abundance of caution, they don’t make sense to a lot of us. So I’ve seen people who have had maybe a case 20 years ago on maybe a possession of marijuana or maybe they were in a relationship and had a domestic incident when they were 18 years old and now, they’re in their forties and this is still popping up to keep them from being placement.
It doesn’t happen all the time, but sometimes that happens. So the caveat on this one is it’s not just that the place is on suitable per just some standard. It has to be unsuitable per the cultural standards of the Indian community where the child is from.
So if the tribe comes in and says, “Hey, look, this was a DUI incident that’s 15, 20 years old. The person doesn’t even drink anymore. This meets our standards of a safe environment,” then that whole unavailability kind of goes out the window. It’s something to kind of consider, even though DHS says, “No, you’re looking at cultural standards from the tribe.” The tribe may agree with DHS and they may not. So those are something to consider.
The other things about this that you probably need to know, socioeconomic status should not be part of the factor to depart from any of the placement preferences. You can’t just say someone is too poor to have the child. That doesn’t really work. If they can safely take care of the child for health, safety, welfare, all that, even if they’re not living in a mansion in an Edmond or wherever you want to pick, then it doesn’t have to be based on that. It can’t be based on socioeconomics.
Likewise, just normal family bonding can not be a reason to change. So if you have a child in a home that’s non-preference based and the tribe wants to come in and change it, this happens a lot, it sometimes makes the news, sometimes doesn’t where a tribe comes in, says, “Hey, we get it. This kid’s been with these people for over a year, two years, three years, but they were not, placement preference-wise, they’re not on the list.
We’re going into adoption or guardianship or something like that now. We want to move the child to another home.” Or parents that are still working on their treatment plan for DHS, we had a home that it’s a placement preference. It opened up, we’re going to move the child. You can’t say the child is just normally bonded to this foster parent and that’d be enough.
That said, there are certain cases out there where the Oklahoma Supreme Court has upheld certain cases where there was extensive bonding, where the child had been there for a considerable amount of time. The emotional bond was testified to. That has been used before. So there’s kind of a fine line you have to walk on that front. If you have questions about this, then please give us a call. Go to our website, tahlequahattorney.com.