G. Statutory Placement Preferences for Indian Child

ICWA mandates that placements for foster care and adoption be made according to statutory preferences in most circumstances. The updated Guidelines also specify that it is inappropriate to conduct an independent analysis, inconsistent with ICWA’s placement preferences, of the ‘‘best interest’’ of an Indian child.[82]

The statutory preferences are as follows:

•   Foster care or pre-adoptive placement

◦   a member of the child’s extended family;

◦   a foster home licensed, approved, or specified by child’s tribe;

◦   an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or

◦   an institution for children approved by the tribe or operated by an Indian organization which has a program suitable to meet the child’s needs.[83] 25 U.S.C. § 1915(b).

•   For an adoptive placement

◦   a member of the child’s extended family;

◦   other members of the child’s tribe; or

◦   other Indian families. 25 U.S.C. § 1915(a).

1. Tribe Can Modify

The tribe can by resolution alter the order of preferences for foster care, pre-adoptive, and adoptive placements. [84] The tribe’s preference should then be followed as long as it is still the least restrictive setting appropriate to the needs of the child. 25 U.S.C. § 1915(c).

2. Good Cause Exception

According to the updated Guidelines, the reasons for a good cause exception must be stated on the record or in writing and made available to the parties to the proceeding and the Indian child’s tribe. The party seeking departure from the preferences bears the burden of proving by clear and convincing evidence the existence of ‘‘good cause’’ to deviate from the placement preferences.

A determination of good cause to depart from the placement preferences must be based on one or more of the following considerations:

•   The request of the parents, if both parents attest that they have reviewed the placement options that comply with the order of preference.

•   The request of the child, if the child is able to understand and comprehend the decision that is being made.

•   The extraordinary physical or emotional needs of the child, such as specialized treatment services that may be unavailable in the community where families who meet the criteria live, as established by testimony of a qualified expert witness; provided that extraordinary physical or emotional needs of the child does not include ordinary bonding or attachment that may have occurred as a result of a placement or the fact that the child has, for an extended amount of time, been in another placement that does not comply with the Act. The good cause determination does not include an independent consideration of the best interest of the Indian child because the preferences reflect the best interests of an Indian child in light of the purposes of the Act.

•   The unavailability of a placement after a showing by the applicable agency in accordance with section F.1. of the BIA Guidelines,[85] and a determination by the court that active efforts have been made to find placements meeting the preference criteria, but none have been located. For purposes of this analysis, a placement may not be considered unavailable if the placement conforms to the prevailing social and cultural standards of the Indian community in which the Indian child’s parent or extended family resides or with which the Indian child’s parent or extended family members maintain social and cultural ties.

The court should consider only whether a placement in accordance with the preferences meets the physical, mental and emotional needs of the child; and may not depart from the preferences based on the socioeconomic status of any placement relative to another placement.[86]

3. Failure of Eligible Placement to Seek Placement

In the Baby Girl case, the U.S. Supreme Court held that the placement preferences do not apply if no party eligible for preference formally seeks placement. Baby Girl, 133 S.Ct. 2552. Under the current BIA Guidelines, the lack of a suitable family meeting the preference criteria can be considered good cause for an exception, but only if the court has found that active efforts were made to locate a conforming placement. The Guidelines further provide that a placement cannot be considered “unavailable” if it conforms to the prevailing social and cultural standards of the Indian community of the child’s parents or extended family.[87]