(a) The court must not order a foster-care placement of an Indian child unless clear and convincing evidence is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(b) The court must not order a termination of parental rights for an Indian child unless evidence beyond a reasonable doubt is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(c) For a foster-care placement or termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.
(d) Without a causal relationship identified in paragraph (c) of this section, evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.
Notes of Decisions
Oliver N. v. Dep't of Health, 444 P.3d 171 (Alaska 2019).
· cites it 4× “termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the…”
State of Alaska, DHSS, OCS v. C.A. (Mother) & B.R. (Father), State of Alaska, DHSS, OCS v. L.S. (Mother) & M.D. (Father), 513 P.3d 999 (Alaska 2022).
· cites it 2× “23 BIA Commentary, supra note 19, at 38,829; see also 25 C.F.R. § 23.121 (b)-(d). 24 BIA 2016 Guidelines, supra note 21, at 53.”
San Diego Cnty. Health & Human Servs. Agency v. H.S. (In re Collin E.), 236 Cal. Rptr. 3d 220 (Cal. Ct. App. 5th 2018).
· cites it 2× “" ( 25 C.F.R. § 23.121 (2016).) Without a causal relationship, "evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself…”
Dept. of Human Servs. v. T. J., 462 P.3d 315 (Or. Ct. App. 2020).
· cites it 2× “120 ; 25 CFR § 23.121 (a); OAR 413-115- 0060; OAR 413-115-0130(1)(a).”
In re Dependency of G.J.A., 489 P.3d 631 (Wash. 2021).
“25 C.F.R. § 23.121 (d). Also, disproportionately high levels of poverty in Native communities often create barriers to engagement.”
People ex rel. L.L., 395 P.3d 1209 (Colo. Ct. App. 2017).
“§ 1912 (e), (f) (2012) (the State must submit proof by clear and convincing evidence when seeking foster care placement, and proof beyond a reasonable doubt when seeking termination of parental rights); 25 C.”
State Ex Rel. CYFD v. Douglas B. & State Ex Rel. CYFD v. Sara E., 2022 NMCA 028 (N.M. Ct. App. 2021).
· cites it 3× “{31} Subsections (c) and (d) of 25 C.F.R. § 23.121 (2016) illuminate the evidentiary standard a proffered ICWA expert testifying about potential emotional or physical damage to the child must meet: (c) For a foster-care placement or termination of parental rights, the evidence…”
Interest of A.A., A.T., & A.A., 2021 S.D. 66 (S.D. 2021).
· cites it 2× “See 25 C.F.R. § 23.121 (c) (“the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage”).”
Dept. of Human Servs. v. A. R. E., 340 Or. App. 73 (Or. Ct. App. 2025).
“and a causal relationship between “the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage” to the child, and further include that: “Without a causal relationship identified in paragraph (c)…”
Melius v. Songer, 2025 S.D. 51 (S.D. 2025).
· cites it 2× “evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence .”
— 25 C.F.R. § 23.121(b) — 1 case
— 25 C.F.R. § 23.121(c) — 1 case
— 25 C.F.R. § 23.121(d) — 2 cases
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