H. Placement Preferences

ICWA mandates that placements for foster care and adoption be made according to statutory preferences, unless good cause is shown to deviate from the preferences. 25 U.S.C. § 1915; 25 C.F.R. § 23.129-131. The court must consider the preference of the Indian child or child's parent, where appropriate. 25 C.F.R. § 23.131(d); 25 C.F.R. 23.132(b). In a voluntary proceeding, if a parent requests anonymity, the court must give weight to that request in applying the preferences. 25 C.F.R. § 23.129(b).

All placements must be in the least restrictive setting that:

•   Most approximates a family, taking sibling attachment into consideration;

•   Allows any special needs to be met; and

•   Is in reasonable proximity to the child's home, extended family, and siblings. 25 C.F.R. § 23.131.

The statutory preferences give priority as follows:

1. 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. 25 U.S.C. § 1915(b); 25 C.F.R. § 23.131(b).[75]

2. 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); 25 C.F.R. § 23.130.

3. Departing from ICWA Preferences

The tribe can by resolution alter the order of preferences. 25 U.S.C. § 1915(c). 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.

Good cause to depart from the placement preferences must be shown by clear and convincing evidence, on the record or in writing, and be based on one or more of the following factors:

•   The request of the Indian child's parent;

•   Request of the child of sufficient age and capacity;

•   Ability of placement to maintain sibling attachment;

•   The "extraordinary physical or emotional needs of the child"; and

•   The unavailability of a placement (despite a diligent search and active efforts to locate one). 25 C.F.R. § 23.132(c).

Neither the relative socioeconomic status of a placement nor ordinary bonding flowing from time spent in a non-preferred placement made in violation of ICWA will support deviation from preferences. 25 C.F.R. § 23.132(d), (e).

This creates yet another incentive to identify a child subject to ICWA quickly, to avoid a child bonding with a caretaker before a placement consistent with these preferences can be made.

In the Baby Girl case, the Supreme Court held that if no party eligible for preference formally seeks placement, the placement preferences do not apply. Adoptive Couple v. Baby Girl, 133 S.Ct. 2552. This shifts the burden to a potential placement to seek placement, which is at odds with the best placement practices for child protection. Regardless of a child's ethnicity, DFPS does not wait for placements to come forward but seeks out extended family, fictive kin and other placement resources. When an Indian child is identified, the tribe is notified and may also identify potential placements. Any appropriate potential placement is assessed and a placement selected consistent with the statutory preferences and good casework practice. As a result, a potential placement's failure to make a formal request would not impact the selection process in a DFPS child protection suit.