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:

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a.    An extended family member of the Indian child;    b.    Another member of the Indian child’s tribe; c.    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

d.    The tribe’s statutory adopted placement preferences.

2.    An Indian child who is accepted for a foster care or nonfoster 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 or nonfoster 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 home of an extended family member of the Indian child; b.    A foster home licensed, approved, or specified by the Indian child’s tribe; c.    An Indian foster home licensed or approved by the department; or

d.    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 or nonfoster 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 or nonfoster 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.