(1)
If the parental rights of an Indian child's parents have not been terminated and the
Indian child is in need of placement or continuation in substitute care, the Indian
child must be placed in the least restrictive setting that:
(a) Most closely approximates a family, taking into consideration sibling
attachment;
(b) Allows the Indian child's special needs, if any, to be met;
(c) Subject to subsection (1)(d)(II)(C) of this section, is in reasonable proximity
to the Indian child's home, extended family, or siblings; and
(d) (I) Except as provided in subsection (3) of this section, is in accordance
with the order of preference established by the Indian child's tribe; or
(II) If the Indian child's tribe has not established placement preferences, is in
accordance with the following order of preference:
(A) The child's noncustodial parent;
(B) A member of the Indian child's extended family;
(C) A foster home licensed, approved, or specified by the Indian child's tribe;
(D) Another member of the Indian child's tribe;
(E) Another Indian family with whom the Indian child has a relationship;
(F) An Indian family from a tribe that is culturally similar or linguistically
connected to the Indian child's tribe;
(G) A foster home licensed or approved by a licensing authority in this state
and in which one or more of the licensed or approved foster parents is an Indian; or
(H) An institution for children that has a program suitable to meet the Indian
child's needs and is approved by an Indian tribe or operated by an Indian
organization.
(2) If the parental rights of the Indian child's parents have been terminated
or if an Indian child is in need of guardianship pursuant to part 2 of article 14 of title
15 or adoptive placement, except as provided for in subsection (3) of this section,
the Indian child must be placed:
(a) In accordance with the order of preference established by the Indian
child's tribe; or
(b) If the Indian child's tribe has not established placement preferences,
according to the following order of preference:
(I) With a member of the Indian child's extended family;
(II) With other members of the Indian child's tribe;
(III) With a member or citizen of an Indian tribe in which the Indian child is
eligible for membership or citizenship but that is not the Indian child's tribe;
(IV) With another Indian family with whom the Indian child has a relationship;
(V) With an Indian family from a tribe that is culturally similar or linguistically
connected to the Indian child's tribe; or
(VI) With another Indian family.
(3) (a) A party may file a motion with the court requesting authority to place
the Indian child contrary to the placement preferences set forth in subsection (1) or
(2) of this section. The motion must detail the reasons the party asserts that good
cause exists for placement contrary to the placement preferences set forth in
subsection (1) or (2) of this section.
(b) Upon the filing of an objection to a motion filed pursuant to subsection
(3)(a) of this section, the court shall set the time for a hearing on the objections.
(c) If the court determines that the moving party has established its burden
by clear and convincing evidence that there is good cause to depart from the
placement preferences set forth in subsection (1) or (2) of this section, the court
may authorize an alternative placement.
(d) The court's determination pursuant to subsection (3)(c) of this section:
(I) Must be in writing and based on one or more of the following factors:
(A) The preferences of the Indian child, if the Indian child is of sufficient age
and capacity to understand the decision that is being made;
(B) The presence of a sibling attachment that cannot be maintained through
a placement consistent with the placement preferences set forth in subsection (1)
or (2) of this section;
(C) Any extraordinary physical, mental, or emotional needs of the Indian child
that require specialized treatment services if, despite active efforts, those services
are unavailable in the community where families who meet the placement
preferences set forth in subsection (1) or (2) of this section reside;
(D) A finding based on the testimony of the child placement agency or the
petitioning or filing party that a diligent search has been conducted and that a
placement meeting the placement preferences set forth in subsection (1) or (2) of
this section is unavailable, as determined by the prevailing social and cultural
standards of the Indian community in which the Indian child's parent or extended
family resides or maintains social and cultural ties; or
(E) The placement request of the Indian child's parent, after the Indian
child's parent has reviewed the placement options, if any comply with the
placement preferences set forth in subsection (1) or (2) of this section;
(II) Must allow the court to retain discretion to find that good cause does not
exist even if one or more of the factors in subsection (3)(d)(I) of this section are
present;
(III) Must, in applying the placement preferences set forth in subsection (1) or
(2) of this section, give weight to the Indian child's parent's request for anonymity if
the placement is an adoptive placement to which the Indian child's parent has
consented; and
(IV) May not be based:
(A) On the socioeconomic conditions of the Indian child's tribe;
(B) On any perception of the tribe's or federal bureau of Indian affairs's
social services or judicial systems;
(C) On the distance between a placement that meets the placement
preferences set forth in subsection (1) or (2) of this section that is located on or near
a reservation and the Indian child's parent, except if the placement would
undermine reunification efforts; or
(D) Solely on the ordinary bonding or attachment between the Indian child
and a non-preferred placement arising from time spent in the non-preferred
placement.
(4) The court, on the court's own motion or the motion of any party, shall
make a determination pursuant to this section regarding the Indian child's
placement if the court or the moving party has reason to know that the Indian child
was placed contrary to the placement preferences set forth in subsection (1) or (2)
of this section without good cause. A motion made pursuant to this subsection (4)
may be made in writing or orally on the record.
(5) To ensure that this article 1.2 is fully implemented and that all Indian
children have the opportunity to maintain strong connections to their culture, if the
household into which an Indian child is placed for adoption or guardianship does not
include a parent who is a member of the Indian child's tribe, the court shall require
the parties to the adoption to enter a cultural compact at the discretion of the
Indian child's tribe, or otherwise develop a plan that documents the parties'
agreement regarding how the Indian child will continue to actively participate in the
Indian child's cultural learning and activities, and engagement with family
members. Each cultural compact or plan must be specific to the Indian child; must
consider the Indian child's mental, physical, and emotional needs, including the
Indian child's preferences; and must take into account the Indian child's
understanding as the Indian child grows and matures. The cultural compact or plan
is considered a post-adoption contact agreement in accordance with section 19-5-208 (4.5) and enforceable in accordance with section 19-5-217.
(6) A confidentiality requirement, if any, does not relieve the court or any
petitioners in an adoption proceeding from the duty to comply with the placement
preferences set forth in this section if the child is an Indian child.
(7) A confidentiality requirement, if any, does not prevent an adult adoptee,
adult descendant of an adoptee, or another eligible party from obtaining
unredacted copies of adoption records pursuant to section 19-5-305.