Here is the opinion in In re D.W.
The Court’s first holding:
The “clear and convincing” standard appears to be the better-reasoned approach. It is consistent with both the congressional intent in adopting ICWA and this Court’s precedent. Therefore, we conclude that deviations from the ICWA placement preferences require a showing of good cause by clear and convincing evidence.
And the second:
Aside from Girlfriend, neither DSS nor the Tribe located another viable placement option within the ICWA preferences. DSS explored placement options for over three and a half years, during which time Child was without a permanent home environment. The circuit court was within its discretion to determine that a diligent search had been performed and that a suitable ICWApreferred placement could not be found. See BIA Guidelines, 44 Fed. Reg. 67584, ¶ F.3. The court’s findings of fact support its conclusion that at least one of the factors indicating good cause to deviate from the ICWA placement preferences existed in this case. Therefore, the circuit court did not abuse its discretion in finding by clear and convincing evidence that good cause existed to place Child outside the ICWA placement preferences.
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