43-1508. Placement guidelines; preferences; records.

(1) In any adoptive placement of an Indian child under state law, a preference shall be given, in the absence of good cause to the contrary, to a placement with the following in descending priority order:

(a) A member of the Indian child's extended family;

(b) Other members of the Indian child's tribe or tribes;

(c) Other Indian families; or

(d) A non-Indian family committed to enabling the child to have extended family time and participation in the cultural and ceremonial events of the Indian child's tribe or tribes;

(2) Any child accepted for foster care or preadoptive placement or a voluntary foster care placement shall be placed in the least restrictive setting which most approximates a family and in which his or her special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with one of the following in descending priority order:

(a) A member of the Indian child's extended family;

(b) Other members of the Indian child's tribe or tribes;

(c) A foster home licensed, approved, or specified by the Indian child's tribe or tribes;

(d) An Indian foster home licensed or approved by an authorized non-Indian licensing authority;

(e) A non-Indian family committed to enabling the child to have extended family time and participation in the cultural and ceremonial events of the Indian child's tribe or tribes;

(f) An Indian facility or program for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs; or

(g) A non-Indian facility or program for children approved by an Indian tribe.

(3) In the case of a placement under subsection (1) or (2) of this section, if the Indian child's primary tribe shall establish a different order of preference by resolution or in the absence thereof the order established by resolution of the Indian child's other tribes, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (2) of this section. When appropriate, the preference of the Indian child or parent shall be considered, except that, when a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.

(4) The standards to be applied in meeting the preference requirements of this section shall be the 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. Good cause to deviate from the placement preferences in subsections (1) through (3) of this section includes: (a) The request of the biological parents or the Indian child when the Indian child is at least twelve years of age; (b) the extraordinary physical or emotional needs of the Indian child as established by testimony of a qualified expert witness; or (c) the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria. The burden of establishing the existence of good cause to deviate from the placement preferences and order shall be by clear and convincing evidence on the party urging that the preferences not be followed.

(5) A record of each such placement, under state law, of an Indian child shall be maintained by the state, evidencing the efforts to comply with the order of preference specified in this section. Such record shall be made available at any time upon the request of the secretary or the Indian child's tribe or tribes.

Source

Annotations

The lower standard of proof under subsection (3) of section 43-279.01 for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the Nebraska Indian Child Welfare Act does not violate the equal protection rights of parents of non-Indian children. In re Interest of Phoenix L. et al., 270 Neb. 870, 708 N.W.2d 786 (2006).

The placement preferences delineated in this section may yield to the wishes of the parent or for other good causes shown. In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992).

Good cause for deviation from the statutory placement preferences was not shown where the record showed that the Department of Health and Human Services was unsuccessful in locating relative placements for the children but did not detail what efforts had been made, the record did not show why the children had not been placed with intervenor grandmother, the grandmother made no argument that such placement should occur and did not assert that the children's nonrelative placements were not in their best interests, and the record did not show if the children's placements met any of the other statutory claims of preference. In re Interest of Enrique P. et al., 19 Neb. App. 778, 813 N.W.2d 513 (2012).