California Law on Adoption Placement of an India Child

Consistent with the provisions of Indian ICWA (Child Welfare Act of 1978, 25 U.S.C. 1915(a)), California law mandates that in any adoptive placement of an Indian child, preference is to be given to a placement with one of the following, in descending order of priority: (1) a member of the child's extended family, as defined in section 1903 of ICWA; (2) other members of the child's tribe; (3) another Indian family. ( 361.31, subd. (c).) ICWA defines "extended familymember" as "a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-inlaw, niece or nephew, first or second cousin, or stepparent." (25 U.S.C. 1903(2).) The Department must make active efforts to comply with the order of preference specified in section 361.31. ( 361.31, subd. (k).) Section 361.31, subdivision (d) instructs, however, that if the child's tribe has established a different order of placement preference, the court "shall follow the order of preference established by the tribe . . . ." (Accord Cal. Rules of Court, rule 5.484(b)(4).) The Chickasaw Nation Code provides for the following placement preferences, in descending order of priority: "1. the natural Parents, adoptive Parents, or Stepparents as the case may be; 2. any person over eighteen (18) years of age who is the Child's Grandparent, Aunt or Uncle, Brother or Sister, Brother-in-law or Sister-in-law, Niece or Nephew, first or second Cousin, and their spouse; 3. a Traditional Custodian and their spouse, if applicable; 4. a Foster Home licensed by the Department; 5. a Foster Home licensed by any other licensing authority within the state or an Indian Foster Home licensed by some other tribe; 6. an institution for Children licensed or approved by the Department with a program suitable to meet the Child's needs." (Chickasaw Nation Code, 6-201.9.) Significantly, the court may deviate from the placement preferences for good cause. ( 361.31, subd. (h).) The considerations that may support a good cause finding include the following: the requests of the parent, Indian custodian, or child (if of sufficient age), the "extraordinary physical or emotional needs of the Indian child as established by a qualified expert witness," or the "unavailability of suitable families based on a documented diligent effort to identify families meeting the preference criteria." (Cal. Rules of Court, rule 5.484(b)(2); see also Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67594, F.3 (Nov. 26, 1979) (former Guidelines) determination of good cause not to follow ICWA placement preferences "shall" be based on the same considerations; Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 643 in making its good cause evaluation, the court is not restricted to the three considerations contained in the guidelines.) "A court may find good cause when a party shows by clear and convincing evidence that there is a significant risk that a child will suffer serious harm as a result of a change in placement." (In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1354.)