3-4-17. PLACEMENT AND CUSTODY OF CHILDREN - AMENDMENT

1. Least Restrictive Setting. If the court determines that a child should not be returned home, the child shall be placed in the least restrictive setting which best serves the interests of the child and where the child’s special needs, if any, may be met. The child shall also be placed within reasonable proximity to his home, taking into account any special needs of the child. Placement in a home shall be preferable to a placement in a child care facility or other institutional placement. A child will be placed in a child care facility or other institutional placement only if a placement in a home is unavailable or inappropriate to the needs of the child, in light of the child’s best interests.
2. Order of Preference. Whenever appropriate, a child shall be placed in a home with the following characteristics, which shall be given preference in the following order:
   1. Members of the extended family;
   2. An Indian family of the same tribe as the child;
   3. People who have a relationship with the child, but who are not related to the child;
   4. An Indian family;
   5. Any other family which can provide a suitable home for such a child.
3. Restrictions on Placement of Minors in Need of Care. A child alleged to be neglected or abused shall not be detained in a jail or other facility intended or used for the incarceration of adults charged with criminal offenses or for the detention of children alleged to be juvenile offenders, but may be placed or detained in the following community-based shelter care facilities:
   1. Licensed Foster Home. A licensed foster home otherwise authorized under the law to provide foster care, group care, protective residence; or
   2. Other Licensed Facility. A facility operated by a licensed child welfare services agency; or
   3. Relatives. With a relative of the child who is willing to guarantee to the court that the child will not be returned to the alleged abusive or neglectful parent, guardian or custodian without prior approval of the court.
4. Changes of Placement.
   1. Notice of Change of Placement. If, at any time after the court has granted temporary custody of a child to a person or an agency and the custodian seeks to change the placement of the child, the custodian will give prior notice of its intention to the Respondent, to the Tribe, and to the Court, if circumstances permit prior notice without posing a danger to the child or others. If emergency circumstances do not permit prior notice and the custodian places the child in another setting without providing prior notice, the party or agency having temporary custody of the child will give notice to the Respondent, to the Tribe, and the Court within seventy-two (72) hours after the child has been moved to another placement.
   2. Right to a Hearing. If a Respondent objects to the change of placement, that party may inform the court of its objection in writing. The Court shall then order a hearing regarding such change of placement.
   3. Out-of-State Placement. Except in a case of emergency circumstances, a child shall not be placed outside the State of South Dakota without the prior approval of the Court, after giving notice and an opportunity for a hearing to the parent or guardian and to the Tribe. If emergency circumstances require removal to an out-of-state placement, notice shall be given to the parent or guardian and to the Tribe within three (3) court days after the placement. The court shall then hold a hearing as soon as practicable to determine if the out-of-state placement is in the best interests of the child.