# Title 27 — Judicial Branch of Government

## Chapter 27-19.1 — Indian Child Welfare

### § 27-19.1-01. Active efforts and procedures - Definitions.

1. As used in this chapter:
a. "Active efforts" means affirmative, active, thorough, and timely efforts intended
primarily to maintain or reunite an Indian child with the Indian child's family. If an
agency is involved in the child custody proceeding, active efforts must involve
assisting the parent or a parent or Indian custodian with the steps of a case plan
and including accessing or developing the resources necessary to satisfy the
case plan. To the maximum extent possible, active efforts should be provided in a
manner consistent with the prevailing social and cultural conditions and way of
life of the Indian child's tribe and should be conducted in partnership with the
Indian child and the Indian child's parents, extended family members, Indian
custodians, and tribe. Active efforts are to be tailored to the facts and
circumstances of the case. The term includes:
(1) Conducting a comprehensive assessment of the circumstances of the Indian
child's family, with a focus on safe reunification as the most desirable goal,
with ongoing timely assessment to determine when the threat is resolved
and placement of the Indian child can be returned to the custodian.
(2) Identifying appropriate services and helping a parent or Indian custodian to
overcome barriers, including actively assisting a parent or Indian custodian
in obtaining such services.
(3) Identifying, notifying, and inviting representatives of the Indian child's tribe to
participate in providing support and services to the Indian child's family and
in family team meetings, permanency planning, and resolution of placement
issues.
(4) Conducting or causing to be conducted a diligent search for the Indian
child's extended family members, and contacting and consulting with
extended family members to provide family structure and support for the
Indian child and the Indian child's parent or Indian custodian.
(5) Offering and employing available and culturally appropriate family
preservation strategies and facilitating the use of remedial and rehabilitative
services provided by the Indian child's tribe.
(6) Taking steps to keep siblings together, if possible.
(7) Supporting regular visits with a parent or Indian custodian in the most
natural setting possible as well as trial home visits of the Indian child during
any period of removal, consistent with the need to ensure the health, safety,
and welfare of the Indian child.
(8) Identifying community resources, including housing, financial, transportation,
mental health, substance abuse, and peer support services and actively
assisting the Indian child's parent or Indian custodian or, as appropriate, the
Indian child's family, in utilizing and accessing those resources.
(9) Monitoring progress and participation in services.
(10) Considering alternative ways to address the needs of the Indian child's
parent or Indian custodian and where appropriate, the family, if the optimum
services do not exist or are not available.
(11) Providing post-reunification services and monitoring.
b. "Adoptive placement" means the permanent placement of an Indian child for
adoption.
c. "Extended family member" means a relationship defined by the law or custom of
the Indian child's tribe or, in the absence of such law or custom, means an
individual who has reached the age of eighteen and who is the Indian child's
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece
or nephew, first or second cousin, or stepparent.

d. "Foster care placement" means the removal of an Indian child from the home of
his or her parent or Indian custodian for temporary placement in a foster home,
qualified residential treatment program, residential care center for Indian children
and youth, or certified shelter care facility, in the home of a relative other than a
parent or Indian custodian, or in the home of a guardian, from which placement
the parent or Indian custodian cannot have the Indian child returned upon
demand. The term does not include an adoptive placement, a preadoptive
placement, an emergency change in placement under section 27-20.3-06, or a
placement pursuant to a criminal or delinquency proceeding.
e. "Indian" means an individual who is a member of an Indian tribe, or who is a
native and a member of a regional corporation as defined under 43 U.S.C. 1606.
f. "Indian child" means any unmarried individual who is under the age of eighteen
and is either a member of an Indian tribe or is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe.
g. "Indian child custody proceeding" means a proceeding brought by the state
involving:
(1) Foster care placement;
(2) A preadoptive placement;
(3) An adoptive placement; or
(4) A termination of parental rights under section 27-20.3-20 for an Indian child.
h. "Indian child's tribe" means the Indian tribe in which an Indian child is a member
or eligible for membership or, in the case of an Indian child who is a member of or
eligible for membership in more than one tribe, the Indian tribe with which the
Indian child has the more significant contacts.
i. "Indian custodian" means any Indian individual who has legal custody of an
Indian child under tribal law or custom or under state law or to whom temporary
physical care, custody, and control has been transferred by the parent of the
Indian child.
j. "Indian tribe" means an Indian tribe, band, nation, or other organized Indian group
or community of Indians recognized as eligible for services provided to Indians by
the United States secretary of the interior because of their status as Indians,
including any Alaska native village as defined in 43 U.S.C. 1602(c).
k. "Parent" means a biological parent or parents of an Indian child or an Indian
individual who has lawfully adopted an Indian child, including adoptions under
tribal law or custom. The term does not include the unwed father if paternity has
not been acknowledged or established.
l. "Preadoptive placement" means the temporary placement of an Indian child in a
foster home, home of a relative other than a parent or Indian custodian, or home
of a guardian after a termination of parental rights but before or in lieu of an
adoptive placement, but does not include an emergency change in placement
under section 27-20.3-06.
m. "Termination of parental rights" means any action resulting in the termination of
the parent-child relationship. It does not include a placement based upon an act
by an Indian child which, if committed by an adult, would be deemed a crime or a
placement upon award of custody to one of the Indian child's parents in a divorce
proceeding.
2. Before removal of an Indian child from the custody of a parent or Indian custodian for
purposes of involuntary foster care placement or the termination of parental rights over
an Indian child, the court shall find that active efforts have been made to provide
remedial services and rehabilitative services designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful. The court may not order
the removal unless evidence of active efforts shows there has been a vigorous and
concerted level of casework beyond the level that would constitute reasonable efforts
under section 27-20.3-26. Reasonable efforts may not be construed to be active
efforts. Active efforts must be made in a manner that takes into account the prevailing
social and cultural values, conditions, and way of life of the Indian child's tribe. Active

efforts must utilize the available resources of the Indian child's extended family, tribe,
tribal and other relevant social service agencies, and individual Indian caregivers.
3. The court may order the removal of the Indian child for involuntary foster care
placement only if the court determines, by clear and convincing evidence, that
continued custody of the Indian child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the Indian child. Evidence must show a
causal relationship between the particular conditions in the home and the likelihood
that continued custody of the Indian child will result in serious emotional or physical
damage to the particular Indian child who is the subject of the proceeding. Poverty,
isolation, custodian age, crowded or inadequate housing, substance use, or
nonconforming social behavior does not by itself constitute clear and convincing
evidence of imminent serious emotional or physical damage to the Indian child.
4. The court may order the termination of parental rights over the Indian child only if the
court determines, by evidence beyond a reasonable doubt that continued custody of
the Indian child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the Indian child.
5. In considering whether to involuntarily place an Indian child in foster care or to
terminate the parental rights of the parent of an Indian child, the court shall require that
a qualified expert witness must be qualified to testify regarding whether the Indian
child's continued custody by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the Indian child and should be qualified to testify as
to the prevailing social and cultural standards of the Indian child's tribe. An individual
may be designated by the Indian child's tribe as being qualified to testify to the
prevailing social and cultural standards of the Indian child's tribe. If the parties stipulate
in writing and the court is satisfied the stipulation is made knowingly, intelligently, and
voluntarily, the court may accept a declaration or affidavit from a qualified expert
witness in lieu of testimony. If one or more parties have been found to be in default
under the North Dakota Rules of Juvenile Procedure, the court may accept a
declaration or affidavit from a qualified expert witness without a stipulation in writing
from the defaulted parties. The court or any party may request the assistance of the
Indian child's tribe or the bureau of Indian affairs office serving the Indian child's tribe
in locating individuals qualified to serve as expert witnesses. The social worker
regularly assigned to the Indian child may not serve as a qualified expert witness in
child custody proceedings concerning the Indian child. The qualified expert witness
should be someone familiar with the particular Indian child and have contact with the
parent or Indian custodian to observe interaction between the parent or Indian
custodian, Indian child, and extended family members. The child welfare agency and
courts should facilitate access to the family and records to facilitate accurate
testimony.
6. If a court order authorizes the emergency removal of the Indian child from the parent
or Indian custodian of the child under state law, the order must be accompanied by a
declaration from the child welfare agency that includes:
a. The name, tribal affiliation, and address of the Indian child, each parent of the
Indian child, and the Indian custodian of the child, as applicable; and
b. A detailed account of the circumstances that led the agency responsible for
emergency removal of the child to take action.
7. An emergency removal or placement of an Indian child under state law must terminate
immediately when the removal or placement is no longer necessary to prevent
imminent physical damage or harm to the Indian child. If removal or placement is
determined to be no longer necessary, the child welfare agency shall terminate the
removal by returning the Indian child to the parent or Indian custodian and offer a
solution to mitigate the situation that gave rise to the need for emergency removal and
placement.
8. If an Indian child is the subject of a shelter care hearing, the party initiating the hearing
shall provide the court with a declaration that includes the specific actions that have
been taken to assist the parent or Indian custodian since the emergency removal so

the child may be safely returned to the custody of the parent or Indian custodian, and
the specific actions the initiating party intends to take so the Indian child may be
returned safely without initiating an Indian child custody proceeding.
9. To facilitate the intent of this chapter, the agency, in cooperation with the Indian child's
tribe of affiliation, unless a parent objects, shall take steps to enroll the Indian child in
the tribe with the goal of finalizing enrollment before termination.
### § 27-19.1-02. Jurisdiction over custody proceedings.

1. This chapter includes requirements that apply if an Indian child is the subject of:
a. A child custody proceeding, including:
(1) An involuntary proceeding;
(2) A voluntary proceeding that could prohibit the parent or Indian custodian
from regaining custody of the Indian child upon demand; and
(3) A proceeding involving status offenses if any part of the proceeding results
in the need for out-of-home placement of the child, including a foster care,
preadoptive or adoptive placement, or termination of parental rights.
b. An emergency proceeding.
2. This chapter does not apply to:
a. A tribal court proceeding;
b. A proceeding regarding a delinquent act;
c. An award of custody of the Indian child to one of the parents, including an award
in a divorce proceeding; or
d. A voluntary placement that either parent, both parents, or the Indian custodian
has, of his or her or their free will, without a threat of removal by a state agency,
chosen for the Indian child and that does not operate to prohibit the Indian child's
parent or Indian custodian from regaining custody of the Indian child upon
demand.
3. If a proceeding under subsection 1 concerns an Indian child, this chapter applies to
that proceeding. In determining whether this chapter applies to a proceeding, the state
court may not consider factors such as the participation of a parent or the Indian child
in tribal cultural, social, religious, or political activities; the relationship between the
Indian child and the Indian child's parent; whether the parent ever had custody of the
Indian child; or the Indian child's blood quantum.
4. If this chapter applies at the commencement of a proceeding, this chapter does not
cease to apply solely because the Indian child reaches age eighteen during the
pendency of the proceeding.
5. An Indian tribe has exclusive jurisdiction over an Indian child custody proceeding
involving an Indian child who resides or is domiciled within the reservation of the tribe,
except if that jurisdiction is otherwise vested in the state by federal law. If an Indian
child is a ward of a tribal court, the Indian tribe retains exclusive jurisdiction regardless
of the residence or domicile of the Indian child.
6. In an Indian child custody proceeding under this chapter involving an Indian child who
is not residing or domiciled within the reservation of the Indian child's tribe, the court
assigned to exercise jurisdiction under this chapter, upon the petition of the Indian
child's parent, Indian custodian, or tribe, shall transfer the proceeding to the jurisdiction
of the tribe unless any of the following apply:
a. A parent of the Indian child objects to the transfer.
b. The Indian child's tribe does not have a tribal court, or the tribal court of the
Indian child's tribe declines jurisdiction.
c. The court determines good cause exists to deny the transfer. In determining
whether good cause exists to deny the transfer, the court may not consider any
perceived inadequacy of the tribal social services department or the tribal court of
the Indian child's tribe. The court may determine good cause exists to deny the
transfer only if the person opposing the transfer shows by clear and convincing
evidence the evidence or testimony necessary to decide the case cannot be
presented in tribal court without undue hardship to the parties or the witnesses

and that the tribal court is unable to mitigate the hardship by making
arrangements to receive the evidence or testimony by use of telephone or live
audiovisual means, by hearing the evidence or testimony at a location that is
convenient to the parties and witnesses, or by use of other means permissible
under the tribal court's rules of evidence.
7. An Indian child's tribe may intervene at any point in an Indian child custody
proceeding.
8. The state shall give full faith and credit to the public acts, records, and judicial
proceedings of an Indian tribe which are applicable to an Indian child custody
proceeding to the same extent that the state gives full faith and credit to the public
acts, records, and judicial proceedings of any other governmental entity.
### § 27-19.1-03. Court proceedings.

1. In a proceeding involving the foster care placement of or termination of parental rights
to an Indian child whom the court knows or has reason to know may be an Indian
child, the party seeking the foster care placement or termination of parental rights, for
the first hearing of the proceeding, shall notify the Indian child's parent, Indian
custodian, and tribe, by registered mail, return receipt requested, of the pending
proceeding and of the parties' right to intervene in the proceeding and shall file the
return receipt with the court. Notice of subsequent hearings in a proceeding must be in
writing and may be given by mail, personal delivery, facsimile transmission, or
electronic mail. If the identity or location of the Indian child's parent, Indian custodian,
or tribe cannot be determined, that notice shall be given to the United States secretary
of the interior in like manner. The first hearing in the proceeding may not be held until
at least ten days after receipt of the notice by the parent, Indian custodian, and tribe or
until at least fifteen days after receipt of the notice by the United States secretary of
the interior. On request of the parent, Indian custodian, or tribe, the court shall grant a
continuance of up to twenty additional days to enable the requester to prepare for that
hearing.
2. Each party to a child custody proceeding of an Indian child has the right to examine all
reports or other documents filed with the court upon which a decision with respect to
the out-of-home care placement, termination of parental rights, or return of custody
may be based.
### § 27-19.1-04. Voluntary proceedings - Consent - Withdrawal.

1. A voluntary consent by a parent or Indian custodian to a foster care placement of an
Indian child is not valid unless the consent or delegation is executed in writing,
recorded before a judge, and accompanied by a written certification by the judge that
the terms and consequences of the consent or delegation were fully explained in detail
to and were fully understood by the parent or Indian custodian. The judge also shall
certify the parent or Indian custodian fully understood the explanation in English or that
the explanation was interpreted into a language the parent or Indian custodian
understood. Any consent or delegation of powers given under this subsection before or
within ten days after the birth of the Indian child is not valid. A parent or Indian
custodian who has executed a consent or delegation of powers under this subsection
may withdraw the consent or delegation for any reason at any time, and the Indian
child must be returned to the parent or Indian custodian. A parent or Indian custodian
who has executed a consent or delegation of powers under this subsection also may
move to invalidate the out-of-home care placement.
2. A voluntary consent by a parent to a termination of parental rights under subdivision d
of subsection 1 of section 27-20.3-20 is not valid unless the consent is executed in
writing, recorded before a judge, and accompanied by a written certification by the
judge that the terms and consequences of the consent were fully explained in detail to
and were fully understood by the parent. The judge also shall certify the parent fully
understood the explanation in English or that the explanation was interpreted into a
language that the parent understood. Consent given under this subsection before or

within ten days after the birth of the Indian child is not valid. A parent who has
executed a consent under this subsection may withdraw the consent for any reason at
any time before the entry of a final order terminating parental rights, and the Indian
child must be returned to the Indian child's parent.
### § 27-19.1-05. Placement preferences.

1. Subject to subsections 3 and 4, in placing an Indian child for adoption or in delegating
powers, as described in a lawful executed power of attorney regarding an Indian child,
preference must be given, in the absence of good cause, as described in subsection 6,
to the contrary, to a placement with or delegation to one of the following, in the order of
preference listed:
a. The tribe's statutory adopted placement preference, if applicable;
b. An extended family member of the Indian child;
c. Another member of the Indian child's tribe;
d. Another Indian family with whom the Indian child has a relationship or an Indian
family from a tribe that is culturally similar to or linguistically connected to the
Indian child's tribe; or
e. Another Indian family.
2. An Indian child who is accepted for a foster care placement or a preadoptive
placement must be placed in the least restrictive setting that most approximates a
family that meets the Indian child's special needs, if any, and which is within
reasonable proximity to the Indian child's home, taking into account those special
needs. Subject to subsections 4 and 6, in placing an Indian child in a foster care
placement or a preadoptive placement, preference must be given, in the absence of
good cause, as described in subsection 6, to the contrary, to a placement in one of the
following, in the order of preference listed:
a. The tribe's statutory adopted placement preference, if applicable;
b. The home of an extended family member of the Indian child;
c. A foster home licensed, approved, or specified by the Indian child's tribe;
d. An Indian foster home licensed or approved by the department; or
e. A qualified residential treatment facility or residential care center for children and
youth approved by an Indian tribe or operated by an Indian organization that has
a program suitable to meet the needs of the Indian child.
3. An Indian child who is the subject of an emergency removal or placement under a
child custody determination under section 27-20.3-06 must be placed in compliance
with foster care placement or preadoptive placement preferences, unless the person
responsible for determining the placement finds good cause, as described in
subsection 6, for departing from the order of placement preference under subsection 2
or finds that emergency conditions necessitate departing from that order. When the
reason for departing from that order is resolved, the Indian child must be placed in
compliance with the order of placement preference under subsection 2.
4. In placing an Indian child under subsections 1 and 2 regarding an Indian child under
subsection 1, if the Indian child's tribe has established, by resolution, an order of
preference that is different from the order specified in subsection 1 or 2, the order of
preference established by that tribe must be followed, in the absence of good cause,
as described in subsection 6, to the contrary, so long as the placement under
subsection 1 is appropriate for the Indian child's special needs, if any, and the
placement under subsection 2 is the least restrictive setting appropriate for the Indian
child's needs as specified in subsection 2.
5. The standards to be applied in meeting the placement preference requirements of this
subsection must be the prevailing social and cultural standards of the Indian
community in which the Indian child's parent, Indian custodian, or extended family
members reside or with which the Indian child's parent, Indian custodian, or extended
family members maintain social and cultural ties.

6. a. If a 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 bears 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 must be based on one or more of
the following considerations:
(1) The request of the Indian child's parent, if they attest that they have
reviewed the placement options, if any, that comply with the order of
preference.
(2) The request of the Indian child, if the Indian child is of sufficient age and
capacity to understand the decision 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, Indian custodian, or extended
family resides or with which the Indian child's parent, Indian custodian, 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 nonpreferred placement
that was made in violation of this chapter.
f. The burden of establishing good cause to depart from the order of placement
preference is on the party requesting that departure.
7. The department or a child welfare agency shall maintain a record of each adoptive
placement, foster care placement, preadoptive placement, and delegation of powers,
made of an Indian child, evidencing the efforts made to comply with the placement
preference requirements specified in this section, and shall make that record available
at any time on the request of the United States secretary of the interior or the Indian
child's tribe.
### § 27-19.1-06. Adoptee information.

1. The state court entering a final adoption decree or order in any voluntary or involuntary
Indian child adoptive placement must furnish a copy of the decree or order within thirty
days to the Bureau of Indian Affairs, as prescribed by the Bureau of Indian Affairs,
along with the following information, in an envelope marked "Confidential":
a. The birth name and birth date of the Indian child, and tribal affiliation and name of
the Indian child after adoption;
b. The names and addresses of the biological parents;
c. The names and addresses of the adoptive parents;
d. The name and contact information for any agency having files or information
relating to the adoption;
e. Any affidavit signed by the biological parent or parents requesting the parent's
identity remain confidential; and
f. Any information relating to tribal membership or eligibility for tribal membership of
the adopted Indian child.

2. The court shall give the birth parent of an Indian child the opportunity to file an affidavit
indicating that the birth parent wishes the United States secretary of the interior to
maintain the confidentiality of the birth parent's identity. If the birth parent files that
affidavit, the court shall include the affidavit with the information provided to the United
States secretary of the interior under subsection 1, and that secretary shall maintain
the confidentiality of the birth parent's identity.
