(a) 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.
(b) The party seeking departure from the placement preferences should bear the burden of proving by clear and convincing evidence that there is “good cause” to depart from the placement preferences.
(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;
(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.
(d) A placement may not depart from the preferences based on the socioeconomic status of any placement relative to another placement.
(e) 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 that was made in violation of ICWA.
Notes of Decisions
Cited in
23
cases (
12 in the last 5 years), 2016–2026 · leading case:
Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).
Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).
· cites it 9× “” 25 C.F.R. § 23.132 (b). The district court determined that Congress unambiguously intended the ordinary preponderance-of-the- evidence standard to apply and that the BIA’s imposition of a higher standard was therefore not entitled to Chevron deference.”
Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
· cites it 5× “at 38 ,838 ; see also 25 C.F.R. § 23.132 (b). The Final Rule further provides that state courts "may not consider factors such as the participation of the parents or Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian…”
Haaland v. Brackeen, 599 U.S. 255 (2023).
“Petitioners assert that the Department of the Interior understands § 1915 this way, 25 CFR § 23.132 (c)(5), and the Tribes who intervene in proceedings governed by ICWA share that understanding—for example, “the Librettis' adoption of Baby O was delayed because the Ysleta del…”
Blythe P. v. State of Alaska, DHSS, OCS, 524 P.3d 238 (Alaska 2023).
· cites it 3× “25 C.F.R. § 23.132 . For example, a determination of good cause may not be based “solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA.”
In re Dependency of K.W., 504 P.3d 207 (Wash. 2022).
· cites it 2× “25 C.F.R. § 23.132 (a), (b). One reason a court may conclude that there is good cause to depart from the placement preference is the unavailability of a suitable placement, but “the standards for determining whether a placement is unavailable must conform to the prevailing…”
Los Angeles Cnty. Dep't of Child. & Fam. Servs. v. J.E., 1 Cal. App. 5th 331 (Cal. Ct. App. 2016).
“38874; 25 C.F.R. § 23.132 (c)(3) (2016).) We acknowledge the R’s seek an abuse of discretion standard of review, because a court making a good cause determination must make factual findings and then apply the facts to legally relevant factors.”
Chad Brackeen v. David Bernhardt, 937 F.3d 406 (5th Cir. 2019).
“See 25 C.F.R. § 23.132 (“The party seeking departure from the placement preferences should bear the burden of proving by clear and convincing evidence that there is ‘good cause’ to depart from the placement preferences.”
Haaland v. Brackeen, 599 U.S. 255 (2023).
“Petitioners assert that the Department of the Interior understands §1915 this way, 25 CFR §23.132 (c)(5), and the Tribes who intervene in proceedings governed by ICWA share that understanding—for example, “the Librettis’ adoption of Baby O was delayed because the Ysleta del Sur…”
Interest of M.D., 2018 SD 78 (S.D. 2018).
· cites it 2× “" 25 C.F.R. § 23.132 (c)(5) (2016). DSS's unsuccessful efforts to find a suitable placement for child with father's family due to the family's lack of response are recounted above.”
In Re Dependency of M.K. (Ariz. Ct. App. 2026).
· cites it 18× “According to 25 C.F.R. § 23.132 (c), a court’s finding of good cause to depart from the ICWA placement preferences “should be based on one or more of the following”: (1) The request of one or both of the Indian child’s parents, if they attest that they have reviewed the…”
Interest of C.R.W., 2021 S.D. 42 (S.D. 2021).
“118 (b); See 25 C.F.R. § 23.132 (c)(2). [¶38.] “There is a strong presumption against federal preemption.”
Alexandra K. v. Dcs (Ariz. Ct. App. 2019).
· cites it 11× “In an eight-page ruling, the court addressed the factors in 25 C.F.R. § 23.132 (c) and also considered other circumstances, which it found together supported good cause to deviate from the ICWA placement preference.”
— 25 C.F.R. § 23.132(b) — 1 case
Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
“at 38 ,838 ; see also 25 C.F.R. § 23.132 (b). The Final Rule further provides that state courts "may not consider factors such as the participation of the parents or Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.