## Facts

- A mother arranged an adoptive placement before birth through a private agency and identified a possible father who was a member of the Cherokee Nation, making the child eligible as an “Indian child” under ICWA.
- The agency notified the Cherokee Nation, which provided names of Cherokee adoptive families, but the mother selected a non-Indian couple and declined to consider tribal placements.
- After the child’s birth, the agency petitioned to terminate both parents’ rights; the father (incarcerated) opposed termination and proposed placement with his mother.
- The agency did not meaningfully evaluate paternal relatives or the Nation’s proposed Indian families, largely deferring to the mother’s preference.
- The district court temporarily placed the child with the non-Indian couple, terminated the father’s parental rights, and found “good cause” to deviate from ICWA placement preferences based primarily on the mother’s preference and stated intent to withdraw consent if her choice was not honored.
- While the ICWA dispute was pending, a separate division of the district court finalized an adoption by the non-Indian couple without notice to the Cherokee Nation.
- The Cherokee Nation appealed the “good cause” deviation ruling.

## Issues

1. Whether the order authorizing deviation from ICWA placement preferences was appealable as a final order under Kansas adoption/probate appeal statutes, or alternatively reviewable under the collateral order doctrine.
2. Whether a biological mother’s preference for a non-Indian adoptive placement, coupled with a threat to withdraw consent, constitutes “good cause” to depart from ICWA’s adoptive placement preferences.

## Decision

- The Kansas Supreme Court held the deviation order was not a “final order” because it did not resolve the entire case or conclusively determine ultimate placement.
- The court exercised appellate jurisdiction under the collateral order doctrine because the deviation ruling conclusively decided an important question separate from the merits and risked becoming effectively unreviewable given the completed, separate adoption.
- On the merits, the court held the district court erred in finding “good cause” to deviate from ICWA based primarily on the mother’s placement preference and her threat to withdraw consent, without additional recognized supporting circumstances.
- The court rejected treatment of parental preference as dispositive and clarified that ICWA applies to voluntary adoptive placements involving an Indian child.

## Legal Principles

- Appellate jurisdiction in adoption-related matters is statutory; absent a final order, appellate review is generally unavailable unless a recognized exception applies.
- Under Kansas law, a “final decision” typically disposes of the entire merits and leaves no further action for the court on the matter at issue.
- The collateral order doctrine permits immediate appeal of a narrow class of rulings that (1) conclusively determine the disputed question, (2) resolve an important issue separate from the merits, and (3) would be effectively unreviewable after final judgment.
- ICWA’s adoptive placement preferences in 25 U.S.C. § 1915 apply when an Indian child is voluntarily placed for adoption, including when the placing parent is non-Indian.
- “Good cause” to depart from ICWA placement preferences requires more than a parent’s generalized preference for a non-Indian placement; parental preference is, at most, a factor and is not sufficient standing alone, especially absent an anonymity-based justification or other record-supported grounds.
- Courts and agencies must not circumvent ICWA’s placement hierarchy by deferring to a single parent’s choice without a substantiated, multifactor basis consistent with ICWA’s purposes.

## Conclusion

The Kansas Supreme Court allowed interlocutory review under the collateral order doctrine and held that a mother’s preference for a non-Indian adoptive couple, even when coupled with a threat to withdraw consent, does not by itself establish “good cause” to depart from ICWA’s placement preferences.


In re T.S.W., 276 P.3d 133 (Kan. 2012)