Tuesday, May 2, 2006

Case Law Development: Standard of Review of Good Cause Deviation from Placement Preferences of the ICWA

The Kansas Court of Appeals adopts a "substantial abuse of discretion" standard for review of trial court decisions on a good cause deviation from the preference for placement with Native Americans in the Indian Child Welfare Act.  The court reviewed the decisions of other states and concluded that "our standard of review of the good cause finding to deviate from the Indian Child Welfare Act's placement preferences is substantial abuse of discretion. Substantial discretion is abused when the district court fails to properly apply the ICWA factors in making its findings of fact rendering the findings clearly erroneous."

Turning to the trial court's decision in this case, the court noted taht the trial court had based its decision on two factors: "the unavailability of suitable families offered by the Tribe for placement" and the birth mother's preference as to the child's placement. Concluding that it was not an abuse of discretion to find that good cause existed to deviate from ICWA's placement preferences on theses bases, the Supreme Court affirmed the placement. 

In re Adoption of B.G.J., 2006 Kan. LEXIS 22 (April 28, 2006)
Opinion on the web (last visited April 29, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/05/case_law_develo_1.html

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