5. Placement Provisions of the Icwa

• Library: The Indian Child Welfare Act Handbook: A Legal Guide to Custody and Adoption (ABA) (2018 Ed.)

As part of the special relationship between Congress and Indian tribes and tribal members, it is the United States' responsibility, as trustee, to make sure that the protection of Indian children who are members of, or are eligible for membership in, an Indian tribe remains intact.¹ At the time of the Indian Child Welfare Act's (ICWA) enactment in 1978, an estimated 25 to 35 percent of all Indian children had been separated from their families and placed in foster care, adoptive homes, or in institutions, 90 percent of those placements with nonrelative, non-Indian families.² Recall that the ICWA serves to protect the best interests of Indian children by promoting the stability and security of Indian tribes and families and to establish minimum federal standards when removal is necessary to place those Indian children with families in homes that reflect the unique values and cultures of the Indian tribes.³ Congress also found that the wholesale removal of Indian children by nontribal governmental agencies constituted a serious threat to the tribe's existence as an ongoing self-governing sovereign.⁴ The placement preferences in the ICWA also codify the best practice in child welfare of favoring extended family placements, a practice now required for all children ever since the Fostering Connections to Success and Increasing Adoptions Act of 2008, and placement within a child's broader community and culture, whenever possible.⁵

However, for decades, various state courts and agencies have interpreted the ICWA in conflicting ways resulting in the ICWA being applied contrary to Congressional intent.⁶ Although progress has been made, the data indicates that Indian children continue to be placed in non-Indian homes in large numbers. Thus, the regulations sought to clarify issues relating to the placement preferences, particularly what constitutes good cause to deviate from those placement preferences.⁷ This chapter will focus on the ICWA's placement preferences set out in 25 U.S.C. § 1915 and will include a discussion of the regulations' interplay with the ICWA's statutory language and case law regarding the placement preferences. This chapter focuses on foster care placement and preadoptive placement preferences, adoptive placement preferences, tribal placement preferences, and good cause to deviate from the placement preferences.

The US Supreme Court addressed the essential nature of the statutory placement preferences and stated in Holyfield, "the most important substantive requirements imposed upon state courts" are the placement preferences expressed in § 1915 of the Act.⁸ Those provisions reflect Congressional realization that even if the Indian child's bond to the parents or Indian custodian is severed, state courts must make every effort not to dissolve that tie between the child and his or her tribe because that association will protect the integrity and future viability of the tribe itself and provide protective factors for that child.⁹ Although applying such a directive may seem awkward in situations in which the Indian child has not resided in an Indian family, the majority of courts have stated that the placement preference provisions must be followed, including, if relatives are not available, the preferences with tribal members and Indian families that connect the child with his or her Indian culture, provided that good cause to the contrary does not exist.¹⁰

The placement preferences in the ICWA and the regulations underscore that the best practice in child welfare cases where a child is removed from a parent favors placing the child with the extended family or within a child's broader kinship community, something which is true for all children, not just Indian children.¹¹

The ICWA placement preferences are listed in two precise paradigms—one paradigm sets forth foster care placements/preadoptive placements and one paradigm sets forth adoptive placements. Both paradigms are enumerated in an exact order of preference. A state court must make a finding that no placement exists at the top of the list before moving down the placement preferences list unless the court makes a detailed finding there is evidence to establish good cause to deviate from the placement preference paradigm.¹²

Tribes may vary with respect to the level of advocacy for a particular placement preference with some tribes remaining silent on the issue while other tribes fervently advocate for the placement of an Indian child in accordance with the provisions of § 1915, even despite a parental effort to avoid such a placement.¹³ Nevertheless, the placement provisions of the ICWA should never become subservient to the provisions regarding the removal of Indian children from their homes, as both areas were of equal importance to Congress.¹⁴ The ICWA's placement preferences do not explicitly apply in emergency proceedings. The guidelines recommend, however, that states make emergency placements in accordance with the ICWA's placement paradigms whenever possible and as soon as possible following removal of the Indian child as this may prevent subsequent disruptions.¹⁵

The ICWA's Statutory Mandate Regarding Placement Preferences

The ICWA's placement preferences are listed in descending order starting with the most preferred and moving to the least preferred.¹⁶ Each placement preference should be considered in the order the ICWA requires and state agencies and other placement agencies must make efforts to identify and assist extended family and tribal members with preferred placements.¹⁷ Giving a preference means more than prioritization and connotes the active bestowal of advantages of some over others.¹⁸ Thus, the state should provide individuals with preferred placement status with at least enough information about the ICWA proceeding to allow the person(s) to avail themselves of the placement preferences.¹⁹

It should be noted that § 1915(b) directs a state court, state agency, or private agency to place an Indian child in the least restrictive setting that closely approximates his or her family, including taking into account sibling attachment, and that is within a reasonable proximity to his or her home.²⁰ Presumably the proximity requirement is designed to promote reunification with the child's parent(s), which is the first priority when a child is removed (see discussion of active efforts requirement in Chapter 4).

The ICWA's 1915(e) requires the states to maintain records evidencing the diligent search efforts to comply with the placement preferences and that those records be made available at any time upon request of the Secretary or the Indian child's tribe,²¹ and this requirement is underscored in situations where a party seeks good cause to deviate from the ICWA placement preferences based upon unavailability.²² The agency must document the searches made and an explanation as to why the higher priority placement could not be met.²³ The fact that no federally recognized tribe is located within a state does not equate to no family members or members of tribes residing within a state.²⁴ Further, the standards for determining whether a placement preference is unavailable must conform to the prevailing social and cultural standards of the Indian community.²⁵

Tribes may supplant tribal placement preferences in the place of the ICWA's placement preferences.²⁶ If an Indian child's tribe establishes a different order of placement preferences by tribal resolution, the agency or court effecting the placement shall follow the tribal placement preferences so long as the placement is the least restrictive setting appropriate to the needs of the child, as provided in subsection (b) of 25 U.S.C. § 1915. Thus, the order of placement preferences established by a tribal resolution or by a tribal-state agreement could change the placement preference structure set out in the ICWA.²⁷ Although some have asserted that a tribe may eliminate the good cause exception to the ICWA placement preferences when it passes a resolution since the language in the ICWA statute regarding a tribal resolution setting forth a tribal placement preference is unqualified, dicta in the recent Supreme Court case of Adoptive Couple v. Baby Girl suggests that this might not be the case.²⁸ A few courts have also refused to abide by a tribal resolution in a couple of instances, notwithstanding the broad language in the ICWA statute and regulations, specifically cases where the tribal resolution has prohibited the adoption of tribal members by non-Indians.²⁹

The ICWA's Foster Care and Preadoptive Placement Preferences

The placement preference provisions for foster care and preadoptive placements are set out at § 1915(b) of the ICWA.³⁰ These provisions apply to both voluntary and involuntary foster care placements, placements in contemplation of a termination of parental rights and preadoptive placements.³¹

In the absence of good cause to the contrary discussed as follows, and taking into account the requirement that a child be placed in a family setting within reasonable proximity to his or her home, in any foster care or preadoptive placement an Indian child shall be placed with

(1) a member of the Indian child's extended family;

(2) a foster home licensed, approved, or specified by the Indian child's tribe;

(3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or

(4) an institution for children approved by an Indian tribe or operated by an Indian organization, which has a program suitable to meet the Indian child's needs.³²

The preference of a parent may be considered where appropriate (see good cause discussion as follows) and a court shall "give weight" to a parent's request for anonymity in applying the preferences.³³

An Indian tribe plays a vital role in the implementation of the foster care placement preferences not only because many of the preferences refer to homes or institutions licensed by the tribe but also because an Indian...