Rule 321 - ICWA Placement Preferences(a) Placement Preferences.This rule applies in determining placement of an Indian child, including in any dependency, foster care, guardianship, pre-adoption, or adoption proceeding. If a tribe has established preferences, those preferences apply. See ICWA § 1915 and 25 C.F.R. §§ 23.131 through 23.132. Otherwise, placement preferences for an Indian child, in descending order, are as follows: (1) with a member of the child's extended family;(2) in a licensed family foster home approved by or specified by the child's tribe;(3) in an Indian foster home licensed or approved by an authorized non-Indian licensing authority;(4) in an institution approved by the Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs pursuant to 25 U.S.C. Chapter 21.(b)Deviation from ICWA Placement Preferences. Under 25 C.F.R. §§ 23.131 and 23.132, the determination to depart from the placement preferences in ICWA § 1915 must be made in the following manner:(1)Statement of Good Cause. In any foster care, guardianship, pre-adoptive, or adoptive placement, if any party asserts that there is good cause not to follow the placement preferences, the reasons for that belief or assertion must be stated orally on the record or provided in writing to the parties and the court.(2)Burden of Proof. The party seeking departure from the placement preferences bears the burden of proving by clear and convincing evidence that there is good cause to depart from the placement preferences.(3)Court's Determination. A court's determination of good cause to depart from the placement preferences must be in a signed minute entry or order and should be based on one or more of the following: (A) the request of one or both of the Indian child's parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference;(B) the request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;(C) the presence of a sibling attachment that can be maintained only through a particular placement;(D) the extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; or(E) the unavailability of a suitable placement, if the court determines that a diligent search was conducted to find suitable placements meeting the preference criteria, but none was located. For purposes of this analysis, the standards for determining whether a placement is unavailable must conform 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.(4)Socioeconomic Status. A placement may not depart from the preferences based on the socioeconomic status of any placement relative to another placement.(5)Time in a Non-Preferred Placement. A placement may not depart from the preferences based solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement if that placement was made in violation of ICWA.Adopted Dec. 8, 2021, effective 7/1/2022.COMMENT TO 2022 AMENDMENT
The Regulations provide that good cause to deviate from placement preferences should be based on one of the five factors, but leave open the possibility that a court may determine, given the particular facts of an individual case, that there is good cause to deviate from the placement preferences for some other reason. Although the rule provides this flexibility, courts should avail themselves of it only in extraordinary circumstances, as Congress intended the good cause exception to be "narrow and limited in scope." 81 Fed. Reg. §§ 38778, 38839 (June 14, 2016).