19.13Preferred Placements of Indian Children

One of the primary purposes of the ICWA and the MIFPA is to ensure that the placement of Indian children reflects the unique values of the Indian child’s Tribal culture. 25 USC 1902; MCL 712B.5.

25 USC 1915, MCL 712B.23(1),¹ 25 CFR 23.129(a), 25 CFR 23.130(a), and 25 CFR 23.131(a) establish a standard order of preference for foster care and preadoptive placements of Indian children.² However, an Indian child’s Tribe³ may establish a different order of preference, and the DHHS or court making the placement must follow the tribe’s order of preference if it is the least restrictive setting that most approximates a family, meets the child’s special needs, and is in reasonable proximity to the child’s home. 25 USC 1915(c); MCL 712B.23(6); 25 CFR 23.130(b); 25 CFR 23.131(c).⁴ Tribal input on placements may also fall under a State-Tribal child welfare agreement. See 25 USC 1919(a).

Note: “Nothing in [the MIFPA] or [MCL 712B.23] prevents the emergency removal, protective custody, or subsequent placement of an Indian child who is a resident of or is domiciled on a reservation^[5] but is temporarily located off the reservation.” MCL 712B.23(9).

The DHHS or court must consider the preference of the child or parent when appropriate, and the DHHS or court must give weight to the parent’s desire for anonymity when applying either the statutory or Tribal preferences. 25 USC 1915(c); 25 CFR 23.129(b); 25 CFR 23.130(c). See Section 19.4(A)(3) for a detailed discussion of confidentiality.

“[T]he prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties[,]” must be considered when meeting the preference requirements. 25 USC 1915(d); MCL 712B.23(8); MCR 3.965(B)(13)(b); MCR 3.967(F).

The Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, H.3 (2016), “recommends that the State agency or other party seeking placement conduct a diligent search for placements that comply with the placement preferences. The diligent search should be thorough, on-going and in compliance with child welfare best practices. A diligent search should also involve:

•Asking the parents for information about extended family, whether members of an Indian Tribe or not;

•Contacting all known extended family, whether members of an Indian Tribe or not;

•Contacting all Tribes with which the child is affiliated for assistance in identifying placements;

•Conducting diligent follow-up with all potential placements;

•Contacting institutions for children approved or operated by Indian Tribes if other preferred placements are not available.”

“It is recommended that the State agency (or other party seeking placement) document the search, so that it is reflected in the record.” Guidelines for Implementing the Indian Child Welfare Act, supra at H.3.

That state courts and agencies are required to adhere to the order of preferred placements does not violate the Tenth Amendment (powers not delegated to the federal government by the Constitution and not prohibited by it to the States, are reserved to the States or to the people). Haaland v Brackeen, 599 US ___, ___ (2023). The “diligent search” mentioned in 25 CFR 23.132(c)(5) “applies to both private and public parties”; the petitioners in Haaland did not show that the “diligent search” requirement “demand[ed] the use of state sovereign authority.” Haaland, 599 US at ___. “Instead, [when placement is at issue,] the burden is on the tribe or other objecting party to produce a higher-ranked placement.” Id. at ___.

A.Foster Care or Preadoptive Placements

“In any foster-care or preadoptive placement of an Indian child under State law, including changes in foster-care or preadoptive placements, the child must be placed in the least-restrictive setting that:

(1) Most approximates a family, taking into consideration sibling attachment;

(2) Allows the Indian child’s special needs (if any) to be met; and

(3) Is in reasonable proximity to the Indian child’s home, extended family, or siblings.” 25 CFR 23.131(a). See also 25 USC 1915(b) and MCL 712B.23(1), which contain similar requirements.

Unless the Indian child’s Tribe has established a different order of preference,⁶ MCL 712B.23(6) and 25 CFR 23.131(b), or good cause is shown to the contrary, MCL 712B.23(1) and 25 CFR 23.129(c), placement of an Indian child accepted for foster care or preadoptive placement must be in the following order of preference:

“(a) A member of the Indian child’s extended family.^[7]

[Note: “[I]f [an Indian child’s] sibling is age 18 or older, that sibling is extended family and would qualify as a preferred placement.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, H.2 (2016).]

(b) A foster home licensed, approved, or specified by the Indian child’s tribe.

(c) An Indian foster home licensed^[8] or approved by the [DHHS⁹].

(d) An institution for children approved by an Indian tribe or operated by an Indian organization^[10] that has a program suitable to meet the Indian child’s needs.” MCL 712B.23(1). See also 25 USC 1915(b)(i)-(iv), MCR 3.965(B)(13)(b), MCR 3.967(F), and 25 CFR 23.131(b), which contain substantially similar language.

“The court must, where appropriate, also consider the preference of the Indian child or the Indian child’s parent.” 25 CFR 23.131(d). “This language does not require a court to follow a child[’s] or parent’s preference, but rather requires that it be considered where appropriate.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, H.2 (2016).

MCL 712B.9(5) requires “[t]he [DHHS] [to] exercise due diligence to determine, document, and contact the Indian child's extended family members in accordance with the [F]ostering [C]onnections to [S]uccess and [I]ncreasing [A]doptions [A]ct of 2008, Public Law 110-351. If applicable, determinations and documentation should be conducted in consultation with the child or parent’s tribe.”

“[A] preferred placement may not be excluded from consideration merely because the placement is not located in the State where the proceeding is occurring.” Guidelines for Implementing the Indian Child Welfare Act, supra at H.3.

B.Good Cause to Deviate From the Order of Preference

A court need not follow the order of preference for a foster care or preadoptive placement if it finds on the record that good cause exists to not follow the order of preference. 25 USC 1915(b); 25 CFR 23.129(c). See also MCL 712B.23(1). “[The] court’s determination of good cause to depart from the placement preferences must be made on the record or in writing[.]” 25 CFR 23.132(c).

Under MIFPA, “[t]he court’s determination of good cause to not follow the order of preference shall be based on 1 or more of the following conditions:

(a) A request was made by a child of sufficient age.

(b) A child has an extraordinary physical or emotional need as established by testimony of an expert witness.” MCL 712B.23(5).

However, effective December 12, 2016, ICWA regulations were updated, and a subsection was added specifying additional conditions a court should consider when determining whether good cause exists to deviate from the order of preference:

“(c) A court’s determination of good cause to depart from the placement preferences must be made on the record or in writing and should be based on one or more of the following considerations:

(1) 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;

(2) The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;^[11]

(3) The presence of a sibling attachment that can be maintained only through a particular placement;

(4) 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;

(5) The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been 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.” 25 CFR 23.132(c).

Note: “[I]f the agency relies on unavailability of placement preferences as good cause for deviating from the placement preferences, it must be able to demonstrate to the court on the record that it conducted a diligent search. This showing would occur at the hearing in which the court determines whether a placement or change in placement is appropriate.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, H.4 (2016).

“The determination of whether a ‘diligent search’ has been completed is left to the fact-finder and will depend on the facts of each case. As a best practice, a diligent search will require a showing that the agency made good-faith efforts to contact all known family members to inquire about their willingness to serve as a placement, as well as whether they are aware of other family members that might be willing to serve as a placement. A diligent search will also generally require good-faith efforts to work with the child’s Tribe to identify family-member and Tribal-community placements. If placements were identified but have not yet completed a necessary step for the child to be placed with them (such as filing paperwork or completing a background check), the fact-finder will need to determine whether sufficient time and assistance has been provided.” Guidelines for Implementing the Indian Child Welfare Act, supra at H.4.

Before 25 CFR 23.132(c) was created, the Michigan Court of Appeals stated that “good cause is limited to the conditions articulated in MCL 712B.23(5)[ (i.e., MIFPA).]” In re KMN, 309 Mich App at 290. However, MIFPA applies only to the extent that it “provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under [ICWA.]” See 25 USC 1921.

“[G]ood cause [under the MIFPA] is limited to the conditions articulated in MCL 712B.23(5) . . .[; t]herefore, a biological parent’s choice of an adoptive placement does not constitute good cause[.]” In re KMN, 309 Mich App 274, 290 (2015). But see 25 CFR 23.130(c) and 25 CFR 23.131(d), which require the court to consider, where appropriate, “the placement preference of the Indian child or the Indian child’s parent[,]” 25 CFR 23.132(c)(1), which sets out a condition (among others) for good cause to depart from the placement preferences at “[t]he request of one or both parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference[,]” and the Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, H.4 (2016), which states that 25 CFR 23.132(c)(1) “reflects that the request of the parent may provide a basis for a ‘good cause’ determination, if the court agrees.”

The party requesting the deviation “should bear the burden of proving by clear and convincing evidence that there is ‘good cause’ to depart from the placement preferences.” 25 CFR 23.132(b). See also MCL 712B.23(3). “If any party asserts that good cause not to follow the placement preferences exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing to the parties to the child-custody proceeding and the court.” 25 CFR 23.132(a).

Before the court deviates from the placement preferences, the court:

•“shall not find good cause to deviate from the placement preferences stated in [MCL 712B.23] without first ensuring that all possible placements required under [MCL 712B.23] have been thoroughly investigated and eliminated. All efforts made under [MCL 712B.23] must be provided to the court in writing or stated on the record. The court shall address efforts to place an Indian child in accordance with [MCL 712B.23] at each hearing until the placement meets the requirements of this section.” MCL 712B.23(4).

•“may not depart from the preferences based on the socioeconomic status of any placement relative to another placement.” 25 CFR 23.132(d).

•“may not depart from the preferences based solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of [the] ICWA.” 25 CFR 23.132(e).

See In re KMN, 309 Mich App at 292 (finding that “the trial court erred with regard to the application of MCL 712B.23(4)” where “the trial court did nothing to ensure . . . possible placement [with the Indian child’s relatives] had been realized, investigated, and eliminated[ (even though the Indian child’s relatives had not yet filed an adoption petition),] . . . [and] the trial court did nothing to ensure that any other possible listed placements were realized, investigated, and eliminated[]”).

C.Using Tribe’s Order of Preference Where Tribe Sets Its Own Order

In addition, the Tribe may set a different order of preference. 25 USC 1915(c); MCL 712B.23(6); 25 CFR 23.130(b); 25 CFR 23.131(c). Both the ICWA and the MIFPA require the court or agency¹² to follow the Tribe’s preference. 25 USC 1915(c); MCL 712B.23(6); 25 CFR 23.130(b); 25 CFR 23.131(c). However, the ICWA requires “the placement [to be in] the least restrictive setting appropriate to the particular needs of the child[.]” 25 USC 1915(c) (providing for adoptive, foster-care, or preadoptive placement to be in the least restrictive setting appropriate to the particular needs of the Indian child as set out in 25 USC 1915(b)); 25 CFR 23.131(c) (providing for foster-care or preadoptive placement to be the least restrictive setting appropriate to the particular needs of the Indian child as set out in 25 CFR 23.131(a)). See also MCL 712B.23(1), which also requires certain placements to be “in the least restrictive setting that most approximates a family and in which his or her special needs, if any, may be met.”

Although the issue was not before, and thus, not decided by the Court, “it may be the case that an Indian child’s tribe could alter [the] preferences [in 25 USC 1915] in a way that includes a biological [parent] whose rights were terminated, but who has now reformed. See [25 USC 1915(c)]. If a tribe were to take such an approach, however, the court would still have the power to determine whether ‘good cause’ exists to disregard the tribe’s order of preference.” See [25 USC 1915(a); 25 USC 1915(c); In re Adoption of TRM, 525 NE2d 298, 313 (Ind 1988).” Adoptive Couple v Baby Girl, 570 US 637, 654 n 11 (2013). See also MCL 712B.23(1) and MCL 712B.23(6) for the MIFPA provisions that correlate to the cited ICWA provisions; 25 CFR 23.130(a)-(b) and 25 CFR 23.131(b)-(c) for the Code of Federal Regulations provisions that correlate to the cited ICWA provisions.

D.Maintenance of Placement Records

Michigan must maintain a record of every Indian child’s voluntary and involuntary foster care and preadoptive placement, which must be made available to the Indian child’s Tribe¹³ or the Secretary of the Interior within 14 days of a request. 25 USC 1915(e); 25 CFR 23.141(a). Although 25 USC 1915(e) does not specify whether the records are to be retained by a state court or a state agency, “context makes clear that a ‘record of each such placement’ refers to the state court’s placement determination.” Haaland v Brackeen, 599 US ___, ___ n 7 (2023).

Each record must at least contain “the petition or complaint, all substantive orders entered in the child-custody proceeding, the complete record of the placement determination (including, but not limited to, the findings in the court record and the social worker’s statement), and, if the placement departs from the placement preferences, detailed documentation of the efforts to comply with the placement preferences.”¹⁴ 25 CFR 23.141(b). “It is recommended that the record include any documentation of preferred placements contacted and, if any were found ineligible as a placement, an explanation as to the ineligibility.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, J.1 (2016).

The MIFPA also requires:

•“A record of each placement of an Indian child [to] be maintained by the [DHHS]^[15] or court evidencing the efforts to comply with the order of preference specified in [MCL 712B.23]. The record shall be made available at any time upon the request of the [S]ecretary [of the Interior]^[16] or Indian child’s tribe.” MCL 712B.23(7).

•“All efforts made to identify, locate, and place a child according to [MCL 712B.23] [to] be documented and, upon request, made available to the court, tribe, Indian child, Indian child’s lawyer-guardian ad litem, parent, or Indian custodian.” MCL 712B.23(10).

E.Change in Foster Care Placement

When an Indian child is removed from foster care for the purpose of further foster care, preadoptive, or adoptive placement,¹⁷ placement must be in accordance with the placement preferences and the provisions of the ICWA, except when the Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed. 25 USC 1916(b).