Cody Elkins and the Cherokee Nation of Oklahoma v. Arkansas Department of Human Services and Minor Child

Cite as 2024 Ark. App. 204
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-23-642

CODY ELKINS AND THE CHEROKEE Opinion Delivered March 13, 2024
NATION OF OKLAHOMA
APPELLANTS APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. 66FJV-21-352]

ARKANSAS DEPARTMENT OF HONORABLE DIANNA HEWITT
HUMAN SERVICES AND MINOR LADD, JUDGE
CHILD
APPELLEES
REVERSED AND REMANDED

WAYMOND M. BROWN, Judge

Appellants Cody Elkins and the Cherokee Nation of Oklahoma (Cherokee Nation)

appeal from the Sebastian County Circuit Court’s permanency-planning order and the

subsequent order terminating Elkins’s parental rights to his son, M.C., born on November

30, 2018. Appellants argue that the circuit court’s decision to change the case’s goal

following the permanency-planning hearing (PPH) to solely adoption after termination was

premature under the Indian Child Welfare Act’s (ICWA’s) protections. They also argue that

the circuit court erred in denying a placement hearing for months, contrary to state law,

requiring that placement be considered every six months and following through with the

termination hearing. Finally, appellants argue that the termination order should be reversed

because it was not in M.C.’s best interest. We reverse and remand.
M.C. was taken into the custody of Arkansas Department of Human Services (DHS)

on October 5, 2021, while M.C. was living with his mother, Siearra Vaun Tucker-Trammel,

who threatened to kill herself and M.C., tried to run away from family members with M.C.,

subsequently jumped out of a vehicle on her way to seek treatment for suicidal and homicidal

ideation, and did not participate in mental-health treatment. Additionally, M.C. was found

to have bruising inconsistent with the history provided by Tucker-Trammel. DHS filed a

petition for dependency-neglect and emergency custody on October 7, and the circuit court

entered an ex parte order for emergency custody that same day.1 The circuit court

subsequently found probable cause existed for DHS to remove M.C. from Tucker-Trammel

and continued to exist so that it was in the best interest of M.C. to remain in DHS’s custody.

M.C. was adjudicated dependent-neglected in an order filed on December 20. The

circuit court specifically found that M.C. was at substantial risk of serious harm as a result

of neglect and parental unfitness that was caused by Tucker-Trammel at the time of DHS’s

involvement.

On March 3, 2022, DHS gave notice to the Cherokee Nation of the custody

proceeding involving M.C., an Indian child, and advising it of its right to intervene. A

paternity test filed on March 25 showed that appellant Elkins is M.C.’s father. The Cherokee

Nation responded on March 28, verifying that M.C. is an Indian child and requiring that all

the safeguards of the federal ICWA be applied.

1
Elkins was incarcerated at the time of M.C.’s removal.

2
The circuit court filed a review order on April 26, finding that M.C.’s parents were

not in compliance with the case plan. The Cherokee Nation filed a notice of intervention

on April 28 and a second notice was filed on May 3. An attorney was appointed to Elkins

on May 27. The circuit court filed a review order and an order establishing paternity on

August 8. In that order, the circuit court found that based on the testimony regarding ICWA

compliance by Cherokee Nation’s representative, Renee Gann, M.C. “should remain with

the department and that return of [M.C.] to the parents would likely result in serious

emotional or physical damage[.]” The circuit court also found that, although M.C.’s current

placement was not ICWA compliant, it “was the least restrictive and in the best interest of

[M.C.] and that the Department had made active efforts to prevent the breakup of the Indian

family.” DHS was ordered to continue to make active efforts to reunify the family. The

circuit court continued the concurrent goal of reunification along with adoption following

termination. DHS was also ordered to provide copies of the ICPC home study to all

attorneys upon receipt from Oklahoma. The circuit court indicated that it was not moving

forward with the ICPC placement prior to the start of play therapy and the subsequent

recommendation for M.C. The circuit court found that there should be no sibling visitation

between M.C. and his siblings at the time. The circuit court found that Elkins was presently

incarcerated in a facility where services are not provided. Elkins was ordered to immediately

begin completion of services when he is released to a facility that provides services and to

work the case plan and comply with the circuit court’s orders. A permanency planning

hearing (PPH) was scheduled for October 18.

3
The PPH took place as scheduled. During preliminary matters, Bridgett Cornett, a

family service worker in foster care for DHS, testified that other than DNA testing, Elkins

had not completed any services in connection with this case. She indicated that the ICPC

process had been started but was held up because DHS was transitioning between ICPC

workers and “it got lost with them.” As a result, the documentation had to be resent, and

since the grandparents had moved to a new residence at that time, it was further held up.

She further testified, “[T]here is another case that has a sibling and Oklahoma is using those

ICPC results from those home studies, from the background checks, everything that they are

doing, and they will apply it to this ICPC instead of conducting other new things that go

with them.” However, she testified that it was not yet complete. She said that it was DHS’s

intention to move forward with ICPC placement. She stated that DHS was recommending

that reunification services continue to be offered. She testified that Oklahoma will send the

ICPC results to DHS once it has been completed, regardless of whether it is approved. She

stated that the home study was conducted on Chandra Reed, the paternal grandmother. She

said that M.C. has two half siblings and one full blooded sibling and that the half siblings

are the subject of the ICPC in Oklahoma. She stated that M.C. has been visiting with Reed

and her husband via Zoom.

Gann testified that the Cherokee Nation’s position at the beginning of a case is

reunification. She stated that as far as placement, they first prefer extended family members,

second, a home designated by the child’s tribe, and third, a home of another federally

recognized tribe. She indicated that she had communicated the preferences to DHS and

4
that she was aware of DHS’s plan to pursue the ICPC placement with M.C.’s grandparents.

She testified that DHS’s plan complied with the federal guidelines and that DHS was making

active efforts to try to reunify the family. She asked that DHS continue to look at relative

placement in an ICWA-compliant placement. Gann also acknowledged that there were

other Indian family members that DHS was looking at. She stated that the Cherokee Nation

does not perform its own home study for placements, especially if the homes are in ICPC.

She stated that they accept the ICPC studies and review them. Gann stated that the

Cherokee Nation did not have a problem with M.C.’s therapist making a recommendation

before M.C. could be moved to an ICPC placement.

As Heather Olsen, M.C.’s therapist, was being questioned about whether it was

necessary for her to meet the grandparents in the Oklahoma ICPC before she could make a

recommendation about M.C.’s living with them, M.C.’s attorney ad litem, Robert Kelly,

objected to the line of questioning, contending that it was “predicated on a future event,”

the parties did not know whether it was going to even happen, and the therapist’s statement

was “speculative.” He further argued that the testimony was not relevant and contended

that they were getting into “some shaky area” and that they first needed to get the ICPC

home study back. DHS stated that based on Gann’s testimony about relative placement, it

was moving forward to accomplishing that goal. Olsen was subsequently withdrawn as a

witness.

Gann testified that return of M.C. to either of his parents at this time would most

likely result in serious emotional and/or physical damage to M.C. Gann stated that,

5
although M.C.’s current placement was not ICWA compliant, the Cherokee Nation did not

object to it because it was the least restrictive and in M.C.’s best interest at that time. She

opined that M.C. could not return home to his parents within the next ninety days.

At the conclusion of the hearing, DHS recommended that the case’s goal remain

reunification with a concurrent goal of adoption following termination. Elkins’s attorney

indicated that Elkins wanted M.C. returned to Tucker-Trammell “while he works out his

situation.” He asked, alternatively, that Elkins’s parents be considered as a placement for

M.C. He also asked for visitation with M.C., even though Elkins was still incarcerated. The

attorney informed the circuit court that it was his understanding that the grandparents’

ICPC home study had been approved. The ad litem requested that M.C. remain in DHS’s

custody. He stated that the parents had not proved by a preponderance of the evidence that

they had made any significant, measurable progress toward remedying the conditions that

caused removal, and as such, he opined that the case’s goal should be adoption following

termination. He further stated:

With regard to some of the arguments that were made by counsel, relative placements
are a preference in the state of Arkansas, but they’re not mandatory. It is what’s in
. . . the best interest of a child. It’s what’s in the best interest of a child based on
their age, based on their sense of development, their sense of belonging, their
attachments. There’s [sic] various factors that are listed out with regard to what’s in
the child’s best interests, but just because there are relatives out there, does not mean
that it’s in the child’s best interest to be placed there.

And so, I think the Court has wisely, judiciously chosen to move with caution,
particularly with the placement of [M.C.], based on the ICPC home study. And I
would ask that the Court continue its order that no placement occur, based on that
ICPC home study, without the involvement and the recommendation of the therapist
or [M.C.’s] therapist specifically.

6
Elkins’s attorney reminded the circuit court that the issues concerning termination or

allowing M.C. to be placed with his grandparents were ultimately the circuit court’s call,

regardless of the therapist’s recommendation. The circuit court orally announced that the

case’s goal would remain reunification with a concurrent goal of adoption following

termination of parental rights. It found that the parents had failed to prove they had made

significant, measurable progress in remedying the conditions that caused removal and noted

that Elkins had done nothing in terms of complying with the case except for the DNA test.

It found that return of custody to the “parent or the Indian custodian is likely to result in

serious emotional or physical damage to [M.C.].” The circuit court also declined to grant

any Zoom visits between Elkins and M.C.2 It reiterated that “no placement shall occur

pursuant to the ICPC that’s currently in process, out of that prior Tulsa, Oklahoma ICPC

home study, without the involvement and recommendation of [M.C.’s] therapist.” Elkins’s

attorney then asked the circuit court if it could add a third goal of relative placement since

the circuit court mentioned the Tulsa situation. The circuit court declined to address the

question, stating,

[The] ICPC study was talked about and testified at the -- at the ju -- let me -- hang on -
- at that July 26th hearing, almost identically like it was today, by Ms. Cornett. It was
almost virtually the exact same testimony. Not much had changed at all. It is still in
the works today, like it was in the works in July. It is something that is to be
considered. It is -- it is -- I didn’t hear anything different. It’s out there. It’s being
processed by the Department as a consideration, as a possible future placement
consideration. There’s – it’s just out there, Mr. Arnold. There’s nothing to be

2
When in-person visitation was being discussed, Elkins stated that he did not want to
put M.C. through that.

7
considered yet. When it happens, the therapist is – it’s my order that the therapist
will be involved. There will be a staffing. It’s -- there -- the therapist will be involved,
and there will be a recommendation by the therapist, and we’ll go from there.

....

I’m not laying the ultimate decision making on the therapist. It – there’s just going
to be a recommendation that I’ll consider.

The permanency-planning order was filed on October 25 in which the circuit court made its

findings by a preponderance of the evidence. The order reiterated the circuit court’s oral

ruling; however, the order listed only one case goal––adoption following termination.

DHS filed a petition for the termination of parental rights on December 1, 2022. On

January 27, 2023, M.C.’s foster parents filed a motion to intervene in the action and a

motion for the circuit court to find good cause to deviate from the placement preferences of

the ICWA. DHS filed an amended petition for the termination of parental rights on

February 2. A second amended petition was filed on February 3. DHS responded to the

motion to intervene on February 7, asking the circuit court to deny it. The ad litem

responded to both motions on February 17; as for intervention, it asked that any decision

concerning placement be held in abeyance until after termination of parental rights, set for

April 18, and addressed in a separate hearing. In response to the good-cause motion, it

stated that the foster parents should “provide a more definite statement of their intentions

in seeking to intervene in this matter.” It again asked the circuit court to hold any decision

in abeyance pending the conclusion of the termination hearing.

8
The circuit court filed an order on March 15, granting the foster parents the right to

intervene. An attorney for the Cherokee Nation entered her appearance on April 13. On

April 14, the Cherokee Nation filed a motion for a continuance of the termination hearing

and a motion for a placement hearing. In the motion, the Cherokee Nation informed the

circuit court that since the last hearing, a member of its nation, who is also a relative of M.C.

and the foster-care placement of M.C.’s siblings, had been approved for placement by the

State of Oklahoma through an ICPC home study. It noted that the circuit court ordered

that M.C. could not be moved from his current placement without a court order. It stated

that the placement and continued contact with the Cherokee Nation tribal family and

biological family is of paramount concern to the Cherokee Nation and is of the most

paramount concern for the best interest of M.C. and for the preservation of M.C. with his

Native American family than a termination hearing. It further stated that it did not believe

that it was in M.C.’s best interest to lose the legal status of his biological and Native American

relatives at a termination hearing prior to ensuring the protection and preservation of the

Native American family as a result of state law, even if federal protections remain. The

Cherokee Nation asked that the termination hearing set for April 18 be changed to a

placement hearing instead. The circuit court filed an order on April 14 granting the

Cherokee Nation’s motion.

The circuit court held a review hearing on April 18 and accepted the Oklahoma ICPC

home study into evidence. The circuit court subsequently agreed that the hearing was a

placement hearing. The circuit court took testimony and allowed the foster parents to

9
actively participate in the hearing. The hearing lasted longer than anticipated, and the circuit

court stated that it would provide the parties with another date in which to finish. The

hearing resumed on April 25. Prior to the beginning of the hearing, the Cherokee Nation

moved for reconsideration and for a corrected order. In the motion, the Cherokee Nation

asked that the order granting the foster parents a right to intervene be set aside and that the

circuit court enter a corrected permanency-planning order indicating that the case’s goal

remained reunification with a concurrent goal of adoption following termination. The

circuit court heard responses from all the parties and then ordered that the intervening issue

be briefed. A new hearing date of June 6 was scheduled.

The ad litem filed a petition for termination of parental rights on April 27. It alleged

several grounds to support the termination of Elkins’s parental rights: (1) twelve months,

failure to remedy; (2) willfully failing to provide significant material support or maintain

meaningful contact; (3) subsequent factors; (4) aggravated circumstances; and (5) sentenced

in a criminal proceeding for a period of time that would constitute a substantial period of

M.C.’s life. The foster parents’ attorney filed a letter on May 2 conceding that his clients

could not intervene.

The Cherokee Nation filed a prehearing brief on June 5 outlining the purpose of

ICWA and its regulations. It also outlined the placement preferences applied in foster-care

or pre-adoptive placements as outlined in 25 CFR § 23.131 (b), which listed in order of

preference that must be followed (1) a member of the Indian child’s extended family; (2) a

foster home that is licensed, approved, or specified by the Indian child’s tribe; (3) an Indian

10
foster home licensed or approved by an authorized non-Indian licensing authority; or (4) an

institution for children approved by an Indian tribe or operated by an Indian organization

that has a program suitable to meet the child’s needs. The Cherokee Nation maintained

that M.C. should be placed with his extended family, the Reeds, so that he can grow up with

his five-year-old sibling, Minor Boy (M.B.). According to the Cherokee Nation, M.B. was

placed with the paternal grandparents on or about December 31, 2022, pursuant to the same

ICPC home study that was received on October 27, regarding M.C. The Cherokee Nation

stated that the ICPC study contemplated both M.C. and M.B. residing together with the

Reeds and that, according to the ICPC progress report, M.B., the Reeds, and the other

children placed there are doing well and has not been disrupted. The Cherokee Nation

reminded the circuit court that it could only depart from the placement preference following

a determination of good cause, which must be made on the record or in writing, according

to 25 C.F.R § 25.132. The Cherokee Nation noted that it had not identified a single basis

for the circuit court to deviate from the first preferred placement. The Cherokee Nation

also asked the circuit court to follow this state’s law as it relates to preferences as outlined in

Arkansas Code Annotated section 9-27-355, calling for preferential consideration to be given

for placement if the relative meets all relevant protective standards and it is in the best

interest of the child to be placed with the relative or fictive kin. It also noted that this

preferential consideration should be given at all stages of the case and that the statute

requires the circuit court to make specific findings in writing regarding the considerations

given if the circuit court denies placement with a relative. The Cherokee Nation also stated

11
that the statute prevents the circuit court from basing its decision to place the child solely

upon consideration of the relationship formed between the child and a foster parent. The

Cherokee Nation cited Ellis v. Arkansas Department of Human Services,3 to show that the state

law preference for placement with relatives should be applied. The Cherokee Nation also

cited other cases and asked that the issue of relative placement be addressed before the

termination of parental rights. The ad litem sent an email on June 5 stating that it intended

to proceed on its petition for the termination of parental rights on June 6, despite the recent

motions filed by the Cherokee Nation in response to an email by the Cherokee Nation

inquiring about the nature of the June 6 hearing. The circuit court sent an email later that

day granting the ad litem’s request to proceed on its termination petition.

The Cherokee Nation objected to the circuit court’s proceeding with the termination

hearing since the record on the April hearings had not been closed and the circuit court

failed to follow the statutory requirement that a review hearing be held every six months.

Additionally, the Cherokee Nation argued that the termination hearing should not come

before a decision on placement. DHS agreed that if termination took place first, M.C.’s

family would lose the preference given it via the ICWA. Elkins’s attorney asked that the

circuit court consider guardianship with the parental grandparents instead of termination so

that M.C. could be with his siblings. The ad litem disagreed with the arguments and stated

that he had been involved in several cases in which a child was adopted by a relative following

3
2016 Ark. 441, 505 S.W.3d 678.

12
termination of parental rights. The circuit court ruled that the termination would take place

first, and if time permitted, the placement hearing would follow.

Cornett testified that it was DHS’s recommendation that termination of parental

rights be granted and for M.C. to be placed for adoption in a relative placement. She stated

that termination of parental rights was in M.C.’s best interest. She said that as far as

placement preferences are concerned, DHS prefers to place a child with relatives, first, or

with their siblings, second. She testified that even after termination, DHS will consider

relatives as a placement.

Elkins testified that he is currently incarcerated and serving a five-year prison sentence

for possession of stolen merchandise, possession of methamphetamine and cocaine,

possession of drug paraphernalia, and second-degree forgery. He also stated that he is

subjected to 135 years’ suspended sentence. He said that he is at the Mississippi County

Work Release Center, where he has been for the past five months. He stated that he was

looking forward to being paroled in November. He acknowledged that the Arkansas

Department of Correction does offer certain classes; however, he stated that the work-release

program he is in does not offer the classes. He said that he has three other children who are

with his mother, one of which is M.C.’s whole sibling, and two are M.C.’s half siblings. He

opined that it is in M.C.’s best interest to be placed with the Reeds, where M.C.’s other

siblings are. Elkins said that he applied to the work-release program because he believed that

the program would help him get out of prison quicker and allow him to do the things

required to get his children back.

13
Gann testified that Elkins has not completed any services. She agreed that DHS had

made active efforts to prevent the breakup of the Indian family. Gann admitted that M.C.

could not be returned to Elkins at that time; however, she stated that there should be a

permanent plan for M.C. before parental rights are terminated. She also said that they were

asking the circuit court to follow the first placement preference under ICWA because there

is an appropriate relative. She reiterated the Cherokee Nation’s objection to the termination

of parental rights. Gann testified that return of M.C. to either parent would result in serious

physical or emotional harm to him. She stated that she did not recall ever testifying in a

proceeding and recommending termination where the Indian child was not in a permanent

placement. Gann told the circuit court that the Cherokee Nation did not object to M.C.’s

placement in October because it was the least restrictive at the time since the ICPC home

study had not yet been approved. However, she stated that after the approved home study,

it was the Cherokee Nation’s recommendation that M.C. be placed with his relative and

other siblings. She said that this was not only the federal law but it was also in M.C.’s best

interest. She stated that the Cherokee Nation’s permanency plan for M.C. if parental rights

are terminated is to be placed with a relative.

The ad litem asked the circuit court to find beyond a reasonable doubt that

termination is in M.C.’s best interest. DHS agreed that termination was the right outcome;

however, it indicated that it disagreed with how they got there. Tucker-Trammell voluntarily

relinquished her parental rights at the hearing. Elkins’s attorney asked that the termination

petition be denied and that M.C. be placed with his siblings. The Cherokee Nation’s

14
attorney argued that termination was not in M.C.’s best interest and that M.C. should be

placed with his relative prior to any termination determination. The attorney also argued

that M.C. was not provided with the protections requiring that his placement be reviewed

every six months, since the last hearing took place in October. The ad litem argued that the

Cherokee Nation did not have cleans hands because it was the motion filed by it that

changed the original termination hearing into a placement hearing. The Cherokee Nation’s

attorney responded that, either way, there had not been a complete hearing on M.C.’s

placement since October. The circuit court informed the parties that it would issue a

decision about termination before the scheduled placement hearing of June 13. The circuit

court filed a letter opinion on June 9 finding beyond a reasonable doubt that termination

should be granted based on all grounds alleged by the ad litem.

The ad litem responded to the Cherokee Nation’s prehearing brief on June 9

stipulating that the ICWA law set out in the Cherokee Nation’s brief was accurate. However,

the ad litem argued that the Cherokee Nation was estopped from claiming that M.C.’s

bonding with his foster parents cannot be used as a reason to deviate from the placement

preferences and that the circuit court is not limited to the five preferences listed in 23 CFR

§ 25.132 in determining whether good cause exits to depart from the placement preferences

of ICWA. The ad litem also contended that the circuit court should deem the April 18 and

25 hearings a nullity and proceed with the June 13 placement hearing.

The termination order, filed on June 27, granted the ad litem’s petition to terminate

Elkins’s parental rights on all grounds alleged. The order stated that the circuit court found

15
beyond a reasonable doubt that termination was in M.C.’s best interest considering his

adoptability and the potential harm he would face if returned to his parents. The circuit

court specifically found that return of M.C. “to the parent or Indian custodian is likely to

result in serious emotional or physical damage to [M.C.] . . . and Mr. Elkins remains

incarcerated.” Elkins and the Cherokee Nation filed timely notices of appeal. The circuit

court entered an order on July 18 outlining the case history. In this order, the circuit court

stated that it had “set aside the Order for placement hearing and ruled that the placement

hearing that initially began on April 18, 2023, was a nullity such that the Court will not

consider evidence or testimony presented.” 4 Appellants timely filed amended notices of

appeal to include the July 17 order.

Both appellants argue some variation that the circuit court erred by changing the goal

following the PPH to solely adoption following termination of parental rights without first

considering a goal of relative placement.5 Our review from a permanency-planning hearing

is de novo, and we will not reverse unless the circuit court’s findings are clearly erroneous.6

4
We cannot find anywhere in the record where the circuit court made such a finding
other than the statement in this order.
5
The ad litem incorrectly argues that appellants’ appeal of the permanency-planning
order is untimely or somehow waived. Appellants timely included the permanency-planning
order and the transcript from that hearing in their notices of appeal. Therefore, an appeal
from that order is properly before us. See Gyalog v. Ark. Dep’t of Hum. Servs., 2015 Ark. App.
302, 461 S.W.3d 734.

6
Yelvington v. Ark. Dep’t of Hum. Servs., 2019 Ark. App. 337, 580 S.W.3d 874.

16
As to issues of law, however, we give no deference to the circuit court. 7 Ordinarily, the

burden of proof in a PPH is a preponderance of the evidence. 8 However, if the ICWA

applies, the burden is clear and convincing evidence.9

Congress passed the ICWA in response to the “rising concern in the mid-1970s over

the consequences to Indian children, Indian families, and Indian tribes of abusive child

welfare practices that resulted in the separation of large numbers of Indian children from

their families and tribes through adoption or foster care placement, usually in non-Indian

homes.”10 The ICWA applies to all state child-custody proceedings involving an Indian child

when the court knows or has reason to know an Indian child is involved.11 “Child custody

proceeding” means, and includes, foster care placement, termination of parental rights,

preadoptive placement, and adoptive placement.12 An Indian child is defined by the ICWA

as an “unmarried person who is under age eighteen and is either (a) a member of an Indian

tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a

7
Gould v. Gould, 2023 Ark. App. 118, 662 S.W.3d 676.
8
Ark. Code Ann. § 9-27-325(h)(2)(A)(ii) (Supp. 2023).
9
Ark. Code Ann. § 9-27-325(h)(2)(B)(i).

10
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).
11
25 U.S.C.A. § 1912(a) (WL current through P.L. 118-39).
12
25 U.S.C.A. § 1903(1) (WL current through P.L. 118-39).

17
member of an Indian tribe.”13 Congress has stated that “there is no resource that is more

vital to the continued existence and integrity of Indian tribes than their children.”14

When a state court adjudicates child-custody proceedings involving Indian children,

ICWA governs from start to finish.15 Pursuant to the ICWA, in any foster-care or

preadoptive placement of an Indian child under state law, where the Indian child’s tribe has

not established a different order of preference under a separate part of this section,

preference must be given, in descending order to the following: (1) a member of the Indian

child’s extended family; (2) a foster home that is licensed, approved, or specified by the

Indian child’s tribe; (3) an Indian foster home licensed or approved by an authorized non-

Indian licensing authority; or (4) an institution for children approved by an Indian tribe

operated by an Indian organization that has a program suitable to meet the child’s needs.16

The court must, where appropriate, also consider the preference of the Indian child’s

parent.17 ICWA requires state courts to place an Indian child with an Indian caretaker, if

13
25 U.S.C.A. § 1903(4).

14
25 U.S.C.A. § 1901(3) (WL current through P.L. 118-39); Haaland v. Brackeen, 599
U.S. 255 (2023) (where U.S. Supreme Court upheld the constitutionality of certain ICWA
provisions).
15
Haaland, supra.
16
25 C.F.R. § 23.131(b).
17
25 C.F.R. § 23.131(d).

18
one is available; that is so even if the child is already living with a non-Indian family and the

state court thinks it’s in the child’s best interest to stay there.18

No one challenges the circuit court’s finding that the non-ICWA compliant

placement of M.C. with his foster parents was the least-restrictive placement at the time of

the PPH. However, appellants argue that since the circuit court was aware of the pending

ICPC home study of M.C.’s paternal grandparents, it should have taken that information

into account and made relative placement part of the case’s goal instead of just adoption

following termination. The evidence adduced at the PPH showed that, although there was

an ICPC home study being performed, it had not yet been completed. One reason for the

delay was due to changes in DHS’s staff, causing documents to be lost in the process and

leading to new documents having to be sent; also, by that time, the grandparents had moved.

DHS stated that it was its intention to move forward with ICPC placement; however, the ad

litem spoke against placing M.C. without the recommendation of his therapist. Gann,

speaking for the Cherokee Nation, also informed the circuit court that M.C. should

ultimately be placed with his extended relatives. The circuit court found by a preponderance

of the evidence that adoption following termination of parental rights should be the case’s

sole goal.

Appellants cite Ellis,19 for their proposition that the circuit court erred in changing

the case’s goal to solely adoption following termination. In Ellis, the father appealed a

18
25 U.S.C.A. §§ 1901 et seq.; Haaland, supra.
19
Supra.

19
permanency-planning order that denied his motion to consider placing his child with his

brother, the child’s uncle. The circuit court refused to consider the uncle’s satisfactory home

study, although DHS had recommended that the child be placed with the uncle. Instead,

the circuit court ordered that the child remain in the foster home and changed the case goal

to adoption. On appeal, the father argued that the court’s refusal to place the child with the

uncle violated the state’s public policy to preserve and strengthen the juvenile’s family ties

when it is in the child’s best interest. Our supreme court agreed with the father and held

that the circuit court erred when it did not consider the home study and did not apply the

statutory preference for relative placement given the completed and satisfactory relative

home study. Here, it must be noted that Ellis was not an ICWA case, but its rationale still

holds true for the issues presented in this case. While the home study in this case had not

yet been approved at the time of the PPH, the evidence showed that there were relatives

willing to take custody of M.C. upon approval of the home study, which was held up by no

fault of appellants or the extended family. The same relatives already had custody of M.C.’s

siblings from a separate juvenile case and were already enjoying visitation with M.C. via

Zoom. Additionally, everyone except the ad litem felt that M.C. should ultimately be placed

in his grandparents’ custody. The circuit court found by a preponderance of the evidence

that the goal should be changed to solely adoption following termination.20 We hold that

20
We must note that this was the incorrect burden of proof as required under the
statute when dealing with ICWA cases. See Ark. Code Ann. § 9-27-325(h)(2)(B)(1) (requiring
the burden of proof in a permanency-planning hearing involving the ICWA to be by clear
and convincing evidence).

20
the circuit court clearly erred by changing the case’s goal to solely adoption following

termination in contravention of the preferences mandated by the ICWA. Accordingly, we

reverse and remand the permanency-planning order for the circuit court to follow the

standards as required under the ICWA and to enter an order consistent with this opinion.

Because we reverse and remand on this issue, we necessarily also reverse any subsequent

orders entered by the circuit court in this case.21

Reversed and remanded.

KLAPPENBACH and HIXSON, JJ., agree.

Leah Lanford, Arkansas Commission for Parent Counsel, for separate appellant Cody

Elkins.

Dusti Standridge, for separate appellant Cherokee Nation.

Kaylee Wedgeworth, Ark. Dep’t of Human Services, Office of Chief Counsel, for

appellee.

Dana McClain, attorney ad litem for minor child.

21
We do not reach appellants’ other issues on appeal because we are reversing and
remanding at the permanency-planning stage.

21