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N.Y.
Comp. Codes R. & Regs. Tit. 18, § 431.18
OFFICIAL
COMPILATION OF CODES, RULES AND REGULATIONS OF THE STATE OF NEW
YORK
TITLE
18. DEPARTMENT OF SOCIAL SERVICES
CHAPTER
II. REGULATIONS OF THE DEPARTMENT OF SOCIAL SERVICES
SUBCHAPTER
C. SOCIAL SERVICES
ARTICLE
2. FAMILY AND CHILDREN'S SERVICES
PART
431. CARE AND PROTECTION OF CHILDREN
Section 431.18 Care and protection of Indian children.
(a) Definitions. For purposes of this section, the following
definitions shall apply:
(1) Indian child means any unmarried person:
(i) who either (a) is under the
age of 18 years, or (b) is between the ages
of 18 and 21 years, is in foster care, and
is a student attending a school, college or university or
regularly attending a course of vocational or technical training designed
to fit him or her for gainful employment or lacks
the skills or ability to live independently; and
(ii) who either (a) is a member
of an Indian tribe, or (b) is eligible for membership
in an Indian tribe, or (c) is the biological child
of a member of an Indian tribe who resides on
or is domiciled within the reservation of such tribe.
(2) Indian tribe shall mean any tribe, band,
nation or other organized group or community of Indians recognized
as eligible for the services provided to Indians by the
Secretary of the Department of the Interior or by the
State of New York or by any other state because
of their status as Indians.
(3) Indian child's tribe shall mean the Indian
tribe of which an Indian child is a member or
is 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 child has the more significant contacts. The determination
of the tribe with which a child has the more
significant contacts shall be made by the court in which
any child custody proceeding with respect to the Indian child
is pending. Such determination shall be made after the appropriate
social services district presents proof to the court concerning, among
other things:
(i) the length of residence on or
near the reservations of each tribe and the frequency of
contacts with each tribe;
(ii) the child's participation in activities of
each tribe;
(iii) the child's fluency in the language
of each tribe;
(iv) the tribal membership of a custodial
parent or an Indian custodian; and
(v) residence on or near one of
the tribes' reservations by the child's relatives.
(4) Child custody proceedings shall include the following:
(i) foster care placement, which shall mean
any action to remove an Indian child from his or
her parent or Indian custodian for temporary placement in a
foster home or institution or the home of a guardian
or conservator;
(ii) the termination of parental rights, which
shall mean any action to terminate the parent-child relationship; and
(iii) an adoptive placement, which shall mean
the permanent placement of an Indian child for adoption, including
any action for a final decree of adoption.
Such term or terms shall not apply where an Indian
child is found to be a juvenile delinquent pursuant to
article 3 of The Family Court Act or in a
divorce proceeding, upon an award of custody to one of
the parents.
(5) A qualified expert witness, which shall mean
an expert qualified to speak on whether continued custody by
the parents of an Indian child or an Indian custodian
is likely to result in serious physical or emotional harm
to the child. Persons with the following characteristics are most
likely to meet the
requirements for a qualified expert witness:
(i) 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;
(ii) a lay expert witness having substantial
experience in the deilvery 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; and
(iii) a professional person having substantial education
and experience in the provision of services to Indian children
and families.
(b) Each social services district must consider:
(1) according to section 101(e) of the Indian
Child Welfare Act of 1978 (P. L. 95-608), no foster
care placement of an Indian child may be ordered by
a court unless there is a determination, supported by clear
and convincing evidence, including testimony of a qualified expert witness,
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; and
(2) according to section 101(f) of the Indian
Child Welfare Act of 1978 (P. L. 95-608), no termination
of parental rights of an Indian child may be ordered
by a court unless there is a determination, supported by
evidence beyond a reasonable doubt, including testimony of a qualified
expert witness, 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.
(c) In any child custody proceeding initiated by a
social services official pursuant to section 384-b of the Social
Services Law or article 10 of The Family Court Act
which involves an Indian child, the official shall notify the
child's parent or Indian custodian and the Indian child's tribe,
by registered mail with return receipt requested of the pending
proceeding and of their right to intervene in such proceeding.
If the identity or location of the parent or Indian
custodian and the tribe cannot be determined, such notice shall
be given to the Secretary of the Interior and the
Department of Social Services by registered mail with return receipt
requested. Such notice shall be forwarded to the Secretary of
the Interior at: Eastern Area Director, Bureau of Indian Affairs,
1951 Constitution Avenue, N.W., Washington, DC 20245. The notice forwarded
to the child's parent, custodian, Indian tribe or the Secretary
of the Interior shall contain the following information, if known:
(1) the Indian child's name, date of birth
and place of birth;
(2) the Indian child's tribal affiliation;
(3) the name of the Indian child's parents
or custodian, including the date of birth and place of
birth of such parents and the mother's maiden name;
(4) a copy of the petition, complaint or
other document filed with the court to
initiate the child custody proceeding;
(5) a statement of the rights of the
biological parents or Indian custodians and the child's tribe to
intervene in the proceeding;
(6) a statement of the right under Federal
law to court-appointed counsel; and
(7) the location, mailing address and telephone number
of the court.
(d) In any child custody proceeding initiated by a
social services official pursuant to section 358-a or 384-b of
the Social Services Law or article 7 or 10 of
The Family Court Act which involves an Indian child, the
social services official shall demonstrate to the court that prior
to the commencement of such proceeding, reasonable efforts were made
to alleviate the need to remove the Indian child from
his home. Such efforts shall involve and use available resources
of the child's extended family, the tribe, Indian social services
agencies and individual Indian care givers.
(e) In any child custody proceeding initiated by a
social services official pursuant to section 358-a or 384-b of
the Social Services Law or article 10 of The Family
Court Act, the social services official shall routinely inquire whether
the child is a Indian and notify the Family Court
in writing where there is reason to believe the child
involved is an Indian.
(f)
(1) A social services official which provides an
Indian child with foster care
or an authorized agency which provides foster care to an
Indian child pursuant to a purchase of service agreement with
such district shall in the absence of good cause to
the contrary, place the child according to the following preferences:
(i) first, with a member of the
Indian child's extended family, as such term is defined by
the law or custom of the Indian child's tribe or,
in the absence of such law or custom, with a
person who has reached the age of 18 and who
is the child's grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or second cousin
or stepparent;
(ii) second, in a foster home licensed,
approved or specified by the Indian child's tribe and approved
by the appropriate social services district;
(iii) third, with Indian foster parents who
have been licensed or certified by an authorized agency to
provide foster care services; and
(iv) fourth, in an institution for children
approved by an Indian tribe or operated by a Indian
organization which has a program suitable to meet the needs
of the child.
(2) Good cause not to follow the order
of preference set forth in paragraph (1) of this
subdivision shall be based on one or more of the
following considerations:
(i) the request of the biological parents
or of the child when the child is of
sufficient age to make decisions concerning where he or she
should reside;
(ii) the extraordinary physical or emotional needs
of the child which, as attested to be a qualified
expert witness as defined in paragraph (a)(5) of this section,
do not permit the child to be placed according to
the preferences set forth in paragraph (1) of this subdivision;
(iii) the unavailability of suitable families for
placement after a diligent search has been completed for families
meeting the preference criteria established by paragraph (1) of this
subdivision. A diligent attempt to find a suitable family shall
include at a minimum, contact with the child's tribal social
service program, a search of all State or county listings
of available Indian homes and contact with nationally or locally
known Indian programs with available placement resources; or
(iv) the tribe concurs that the best
interests of the child require placement with a non-Indian family
or in another setting not within the order of preference
set forth in paragraph (1) of this subdivision.
(3) If the Indian child's tribe has established
by resolution an order of preference different than that established
in paragraph (1) of this subdivision, the social services official
or authorized agency shall follow the order of preference established
by the resolution, provided the placement would be in the
least restrictive setting appropriate to the particular needs of
the child.
(4) Where a parent of an Indian child
has voluntarily consented to the transfer of care and custody
of the child to an authorized agency and has expressed
a desire to the agency for anonymity, the social services
official or authorized agency shall consider the desire for anonymity
in applying the preferences established in paragraph (1) of this
subdivision or the preferences established by resolution of the child's
Indian tribe.
(5) All foster care placements made by social
services officials or authorized agencies pursuant to this subdivision shall
be made in homes or institutions which have been certified
or approved by an authorized agency or by the social
services district in which such homes or institutions are located.
(6) The standards to be applied by a
social services official or authorized agency in approving placements that
comply with the preference requirements of this subdivision shall be
the prevailing social and cultural standards of the Indian community
in which the parent or extended family resides or with
which the parent or extended family members maintain social and
cultural ties.
(g)
(1) A social services official who places an
Indian child in an adoptive home or an authorized agency
which provides adoption services to an Indian child
pursuant to a purchase of service agreement with such district
shall, in the absence of good cause to the contrary,
place the child according to the following preferences:
(i) first, with a member of the
Indian child's extended family, as such term is defined by
the law or custom of the Indian child's tribe or,
in the absence of such law or custom, with a
person who has reached the age of 18 and who
is the child's grandparent, aunt or uncle, brother or sister,
brother-in-law or sister-in-law, niece or nephew, first or second cousin
or stepparent;
(ii) second, with other members of the
Indian child's tribe; and
(iii) third, with other Indian families.
(2) Good cause not to follow the order
of preference set forth in paragraph (1) of this
subdivision shall be based on one or more of the
following considerations:
(i) the request of the biological parents,
or the child when the child is of sufficient age
to make decisions concerning where he or she should reside;
(ii) the extraordinary physical or emotional needs
of the child which, as attested by a qualified expert
witness as defined in paragraph (a)(5) of this section, do
not laced according to the preferences set forth in paragraph
(1) of this subdivision;
(iii) the unavailability of suitable families for
placement after a diligent search has been completed for families
meeting the preference criteria established by paragraph (1) of this
subdivision. A diligent attempt to find a suitable family shall
include at a minimum, contact with the child's tribal social
services program, a search of all State or county listings
of available Indian homes and contact with nationally or locally
known Indian programs with available placement resources;
(iv) the tribe concurs that the best
interests of the child require placement with a non-Indian family
or in another setting not within the order of preference
set forth in paragraph (1) of this subdivision.
(3) If the Indian child's tribe has established
by resolution an order of preference different than that established
in paragraph (1) of this subdivision, the social services official
or authorized agency shall follow the order of preference established
by the resolution, provided the placement would be in the
least restrictive setting appropriate to the particular needs of the
child.
(4) Where a parent of an Indian child
has voluntarily consented to the transfer of guardianship and custody
of the child to an authorized agency and has expressed
a desire to the agency for anonymity, the social services
official or authorized agency shall consider the desire for anonymity
in applying the preferences established in paragraph (1) of this
subdivision or the
preferences established by resolution of the child's Indian tribe.
(5) The standards to be applied by a
social services official or authorized agency in approving placements which
comply with the preference requirements of this subdivision shall be
the prevailing social and cultural standards of the Indian community
in which the parent or extended family resides or with
which the parent or extended family members maintain social and
cultural ties.
(h) When a local social services official is aware
that a child in receipt of foster care or adoption
services is an Indian child or that an application for
foster care or adoption services is being submitted on behalf
of an Indian child, the official shall determine to the
extent possible whether the child is a resident, domiciliary or
ward of a tribal court in New York State or
another state. If the child is a resident, domiciliary or
ward of a tribal court in New York State or
another state, the local social services official shall advise the
Family Court that the child should be returned to the
jurisdiction of the tribal court. In the event that the
court orders the child returned to the jurisdiction of the
appropriate tribal court, the social services official may provide social
services and/or foster care services to the child for 30
days after such order. The services provided to the child
during this period shall be subject to reimbursement in accordance
with the provisions of section 153 of the Social Services
Law.
Historical
Note
Sec.
filed Dec. 22, 1986; amd. filed Sept. 27, 1988 eff. Oct. 12, 1988. Amended
(a)(1).
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