Rule 5.485.Placement of an Indian child

Division 2. Rules Applicable in Family and Juvenile Proceedings · Chapter 2. Indian Child Welfare Act · Last amended 2020 · Last verified September 10, 2026

In one sentenceRule 5.485 sets the evidentiary standard for placing an Indian child and the placement preferences the court must work through in order.

Full Text of Rule 5.485

Text sizeJump to: (a) (b) (c)

(a) Evidentiary burdens

In any child custody proceeding listed in rule 5.480, the court may not order placement of an Indian child unless it finds by clear and convincing evidence that continued custody with the parent or Indian custodian is likely to cause the Indian child serious emotional or physical damage and it considers evidence regarding prevailing social and cultural standards of the child’s tribe, including that tribe’s family organization and child-rearing practices.

(1) Testimony by a “qualified expert witness,” as defined in Welfare and Institutions Code section 224.6, Family Code section 177(a), and Probate Code section 1459.5(b), is required before a court orders a child placed in foster care or terminates parental rights.

(2) Stipulation by the parent, Indian custodian, or tribe, or failure to object, may waive the requirement of producing evidence of the likelihood of serious damage only if the court is satisfied that the person or tribe has been fully advised of the requirements of the Indian Child Welfare Act and has knowingly, intelligently, and voluntarily waived them. Any such stipulation must be agreed to in writing.

(3) Failure to meet non-Indian family and child-rearing community standards, or the existence of other behavior or conditions that meet the removal standards of Welfare and Institutions Code section 361, will not support an order for placement absent the finding that continued custody with the parent or Indian custodian is likely to cause serious emotional or physical damage.

(b) Standards and preferences in placement of an Indian child

(1) All placements of an Indian child must be in the least restrictive setting that most approximates a family situation and in which the child’s special needs, if any, may be met.

(2) Unless the court finds by clear and convincing evidence that there is good cause to deviate from them, whenever it is known or there is reason to know the child is an Indian child, all placement in any proceeding listed in rules 5.480 and 5.484 must follow the specified placement preferences in Family Code section 177(a), Probate Code section 1459(b), and Welfare and Institutions Code section 361.31.

(3) The court must analyze the availability of placements within the placement preferences in descending order without skipping. The court may deviate from the preference order only for good cause, which may include the following considerations:

(A) The requests of the parent or Indian custodian if they attest that they have reviewed the placement options, if any, that comply with the order of preference;

(B) The requests of the Indian child, when of sufficient age and capacity to understand the decision being made;

(D) The extraordinary physical, mental, or emotional needs of the Indian child, including specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; or

(E) The unavailability of a suitable placement within the placement preferences based on a documented diligent effort to identify placements meeting the preference criteria. The standard 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 or extended family resides or with which the Indian child’s parent or extended family members maintain social and cultural ties.

(4) The placement preferences must be analyzed and considered each time there is a change in the child’s placement. A finding that there is good cause to deviate from the placement preferences does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.

(5) The burden of establishing good cause for the court to deviate from the preference order is on the party requesting that the preference order not be followed. A placement may not depart from the preferences based on the socioeconomic status of any placement relative to another or solely on the basis of ordinary bonding or attachment that flowed from time spent in a nonpreferred placement that was made in violation of the Indian Child Welfare Act.

(6) The tribe, by resolution, may establish a different preference order, which must be followed if it provides for the least restrictive setting.

(7) The preferences and wishes of the Indian child, when of sufficient age, and the parent must be considered, and weight given to a consenting parent’s request for anonymity.

(8) When no preferred placement is available, active efforts must be made and documented to place the child with a family committed to enabling the child to have visitation with “extended family members,” as defined in 25 United States Code section 1903(2), and participation in the cultural and ceremonial events of the child’s tribe.

In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made, in any proceeding listed in rule 5.480, to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful. These active efforts must include affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite the child with his or her family, must be tailored to the facts and circumstances of the case, and must be consistent with the requirements of Welfare and Institutions Code section 224.1(f).

(1) The active efforts must be documented in detail in the record.

(2) The court must consider whether active efforts were made in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe.

(3) Active efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.

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Plain-English Summary

Placement requires clear and convincing evidence that continued custody with the parent or Indian custodian is likely to cause the child serious emotional or physical damage — and the court must consider evidence of the prevailing social and cultural standards of the child’s tribe, including its family organization and child-rearing practices. Testimony from a qualified expert witness is required before foster care placement or termination of parental rights.

One provision guards against the standard being applied by comparison: failure to meet non-Indian family and child-rearing community standards will not support a placement order absent the finding of likely serious damage. A stipulation or failure to object waives the evidence requirement only where the court is satisfied the person or tribe was fully advised and knowingly, intelligently and voluntarily waived it, in writing.

The placement preferences are worked through in descending order without skipping, and the court may deviate only for good cause on clear and convincing evidence. Good cause may include the requests of a parent or Indian custodian who attests to having reviewed the complying options, the child’s own request where old enough, a sibling attachment maintainable only through a particular placement, extraordinary needs requiring specialized services, or unavailability established by documented diligent effort — measured against the prevailing standards of the Indian community, not the court’s.

Two exclusions are explicit: a placement may not depart from the preferences based on the socioeconomic status of one placement relative to another, or solely on ordinary bonding that flowed from time spent in a non-preferred placement made in violation of ICWA. The preferences must be reconsidered at every change of placement, and a tribe may set a different order by resolution.

Active efforts run alongside all of this: affirmative, active, thorough and timely efforts to maintain or reunite the family, tailored to the case, documented in detail in the record, and consistent with the prevailing social and cultural conditions of the child’s tribe — including pursuing any steps needed to secure tribal membership for a child who is eligible.

Frequently Asked Questions

What must the court find before placing an Indian child?

By clear and convincing evidence, that continued custody with the parent or Indian custodian is likely to cause serious emotional or physical damage — supported by qualified expert witness testimony, and considering the prevailing social and cultural standards of the child’s tribe.

Can the court skip down the placement preference list?

No. The court must analyze availability within the preferences in descending order without skipping, and may deviate only for good cause shown by clear and convincing evidence.

Can a child stay where they are because they have bonded there?

Not by itself. A placement may not depart from the preferences solely on the basis of ordinary bonding or attachment flowing from time spent in a non-preferred placement made in violation of ICWA.

What are "active efforts"?

Affirmative, active, thorough and timely efforts intended primarily to maintain or reunite the child with their family, tailored to the case, documented in detail in the record — including pursuing steps to secure tribal membership for an eligible child and using the resources of extended family, the tribe, and Indian social services.

Amendment History

Rule 5.485 renumbered and amended effective January 1, 2020; adopted as rule 5.484 effective January 1, 2008; previously amended effective January 1, 2013.

(Subd (a) amended effective January 1, 2013.) (Subd (b) amended effective January 1, 2020; previously amended effective January 1, 2013.) (Subd (c) amended effective January 1, 2020; previously amended effective January 1, 2013.)

Source & verification. Rule text is reproduced verbatim from the Judicial Council of California. Adopted by the Judicial Council of California. Last verified September 10, 2026. · Official source

Also known as: ICWA placement preferences Californiaactive efforts ICWAqualified expert witness ICWAgood cause deviate placement preference