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11.The express policy of the ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .

25 U.S.C. § 1902. One method by which the ICWA implements this policy is to provide preferences for the adoptive placement of Indian children.

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.

25 U.S.C. § 1915(a). A court is required to order an adoptive placement of an Indian child in accordance with these preferences unless it concludes that good cause exists to deviate from them. Thus, the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in an Indian home in conformance with the § 1915 placement preferences. Matter of Adoption of Riffle (1996), 277 Mont. 388, 393-94, 922 P.2d 510, 514 (Riffle II).

12.The ICWA does not define the term "good cause" as used in 25 U.S.C. § 1915(a); nor does it set forth factors to be considered in determining whether good cause exists. However, the Department of the Interior, via the Bureau of Indian Affairs (BIA), promulgated Guidelines for State Courts; Indian Child Custody Proceedings (the guidelines) to assist in the interpretation and application of the ICWA. See 44 Fed. Reg. 67,584 to 67,595 (1979). We previously have determined that these guidelines are persuasive and we apply them when interpreting the ICWA. See, e.g., Matter of Adoption of H.M.O., 1998 MT 175, 30, 289 Mont. 509, 30, 962 P.2d 1191, 30; Matter of Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545; Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

13.The BIA's statement of policy regarding the ICWA and the guidelines is as follows:

Congress through the [ICWA] has expressed its clear preference for keeping Indian children with their families, deferring to tribal judgment on matters concerning the custody of tribal children, and placing Indian children who must be removed from their homes within their own families or Indian tribes. Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences. The [ICWA], the federal regulations implementing the [ICWA], the recommended guidelines and any state statutes, regulations or rules promulgated to implement the [ICWA] shall be liberally construed in favor of a result that is consistent with these preferences.

44 Fed. Reg. 67,585-86. With regard to the "good cause" exception to the adoptive placement preferences in 25 U.S.C. § 1915(a), the guidelines provide:

(a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference . . . shall be based on one or more of the following considerations:

(i) The request of the biological parents or the child when the child is of sufficient age.

(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.

(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

(b) The burden of establishing the existence of good cause not to follow the order of preferences . . . shall be on the party urging that the preferences not be followed.

44 Fed. Reg. 67,594. The BIA's commentary to the guidelines further addresses the consideration of an Indian child's extraordinary physical and emotional needs as constituting good cause. In a few cases a child may need highly specialized treatment services that are unavailable in the community where the families who meet the preference criteria live. Paragraph (ii) recommends that such considerations be considered as good cause to the contrary. 44 Fed. Reg. 67,594.

in 1994, the Minnesota Supreme Court rejected a white couple’s petition to adopt three Ojibwe sisters. The court held that non-Indian families may adopt Indian children if they prove there is "good cause", but good cause can’t be based on "a European value of family permanence".

¶ We have stated that a tribe's right to intervene in a proceeding is not impaired if it does not intervene promptly after receiving notice. Riffle I, 273 Mont. at 241, 902 P.2d at 544. However, timeliness aside, the Tribes' argument fails to recognize the fundamental difference between transferring a case to an entirely different court system, on the one hand, and granting participation by way of intervention in ongoing proceedings in the state court that already has had a substantial and lengthy involvement in various aspects of the case, on the other. As discussed in the BIA guidelines at 44 Fed. Reg. 67590 (1979):

This section specifies that requests are to be made promptly after receiving notice of the proceeding. . . . While the Act permits intervention at any point in the proceeding, it does not explicitly authorize transfer requests at any time. Late interventions do not have nearly the disruptive effect on the proceeding that last minute transfers do. A case that is almost completed does not need to be retried when intervention is permitted. . . . Although the Act does not explicitly require transfer petitions to be timely, it does authorize the court to refuse to transfer a case for good cause. When a party who could have petitioned earlier waits until the case is almost complete to ask that it be transferred to another court and retried, good cause exists to deny the request.

See also People in Interest of J.J. and S.J. (S.D.1990), 454 N.W.2d 317 (tribal motion to intervene in an extant proceeding was granted; but appropriate, though untimely, § 1911(b) motion to transfer was denied because, citing the BIA guidelines, intervention is far different than transfer and would subject children to potentially dangerous situations and not be in their best interest).

¶ Here, as to the foster care placements and termination of parental rights, A.P.'s case was not "almost completed," but, rather, these proceedings had been completed and closed for a month when the Tribes' transfer motion was filed. Even if § 1911(b) allowed transfer at that point in time (which it does not), the disruptive effect of transfer to an entirely new court system for more litigation and possible retrial is manifest and is hardly in the best interest of the parents or the child.

¶ We conclude that the District Court properly denied the Tribes' § 1911(b) transfer motion inasmuch as it was filed at a time when there was no foster care placement nor termination of parental rights proceedings before the court, those proceedings having been completed. Moreover, we conclude that, in the context of a preadoptive placement following the termination of parental rights, the court properly determined that § 1911(b) is inapplicable. Accordingly, we hold that the District Court's denial of the Tribes' motion to transfer jurisdiction of A.P.'s case to Tribal Court was correct as a matter of law.

This section [25 U.S.C. 1911(c)] specifies that requests are to be made promptly after receiving notice of the proceeding . . .While the Act permits intervention at any point in the proceeding, it does not explicitly authorize transfer requests at any time. Late interventions do not have nearly the disruptive effect on the proceeding that last minute transfers do . . . . Although the Act does not explicitly require transfer petitions to be timely, it does authorize the court to refuse to transfer a case for good cause. When a party who could have petitioned earlier waits until the case is almost complete to ask that it be transferred to another court and retried, good cause exists to deny the request.

In re A.P., ¶ 26 (quoting 44 Fed. Reg. 67590 (1979)) (emphasis added). The mother's motion to continue stated that she wanted the "Fort Belknap Tribe to intervene and assume jurisdiction in the matter," and that she "wishes to have questions regarding care and custody of . . . [T.A.G.] decided by the Fort Belknap Tribal Court." Such language indicates that the mother wanted not only intervention but ultimate transfer to the Tribal court.

¶28. In this case, the District Court had good cause to deny the mother's request. Ample evidence existed that the Tribes declined to intervene and would do so again if asked by the mother. Additionally, the mother had more than sufficient time to request the Tribes to intervene. Finally, and perhaps most importantly, as the court stated at the commencement of the termination hearing, proceeding with the matter was in the best interests of T.A.G.

¶29. We conclude that the District Court did not abuse its discretion when it denied the mother's motion to continue.

¶12.The ICWA does not define the term "good cause" as used in 25 U.S.C. § 1915(a); nor does it set forth factors to be considered in determining whether good cause exists. However, the Department of the Interior, via the Bureau of Indian Affairs (BIA), promulgated Guidelines for State Courts; Indian Child Custody Proceedings (the guidelines) to assist in the interpretation and application of the ICWA. See 44 Fed. Reg. 67,584 to 67,595 (1979). We previously have determined that these guidelines are persuasive and we apply them when interpreting the ICWA. See, e.g., Matter of Adoption of H.M.O., 1998 MT 175, ¶ 30, 289 Mont. 509, ¶ 30, 962 P.2d 1191, ¶ 30; Matter of Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545; Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

¶13.The BIA's statement of policy regarding the ICWA and the guidelines is as follows:

44 Fed. Reg. 67,585-86. With regard to the "good cause" exception to the adoptive placement preferences in 25 U.S.C. § 1915(a), the guidelines provide:

(i) The request of the biological parents or the child when the child is of sufficient age.

(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.

(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

(b) The burden of establishing the existence of good cause not to follow the order of preferences . . . shall be on the party urging that the preferences not be followed.

44 Fed. Reg. 67,594. The BIA's commentary to the guidelines further addresses the consideration of an Indian child's extraordinary physical and emotional needs as constituting good cause.

In a few cases a child may need highly specialized treatment services that are unavailable in the community where the families who meet the preference criteria live. Paragraph (ii) recommends that such considerations be considered as good cause to the contrary.

¶15.Briefly stated, the pertinent facts relating to C.H.'s physical and emotional condition, as set forth in the District Court's findings of fact, are as follows. C.H. currently is developing normally for a child of her age and is thriving. Although she may have been exposed to drugs and alcohol in utero, she exhibits no symptoms of fetal alcohol syndrome or effect; nor are there indications of other physical or psychological problems. However, as a result of the possible drug and alcohol exposure, she is at high risk for neurodevelopmental problems and emotional disorders which may not surface until later in her life.

¶16.The District Court further found that, as a result of C.H.'s emotional bond with the Alberdas and the abuse she experienced early in life, she is at risk for developing an attachment disorder should she be removed from the Alberdas' home. Although there was extensive testimony regarding attachment disorders in general, none of the expert witnesses testified that C.H. was certain to develop an attachment disorder should she be moved or that any emotional harm resulting from a change in custody would be irreparable. The record reflects that, to date, C.H. has shown great emotional resiliency.

Furthermore, DPHHS determined that C.H.'s abuser, although never actually identified, was an immediate family member. On that basis, the District Court found that, because the Ehrets are extended family members, the potential exists that C.H. would come into contact with her abuser in the future should she be placed in their home.

¶19.The guidelines provide that a determination of good cause to avoid the preferences "shall be based on one or more of" three stated factors. 44 Fed. Reg. 67,594. At least one court has held that this language indicates that the determination of whether good cause exists to deviate from the ICWA placement preferences must be limited to consideration of the three factors set forth in the guidelines. See Matter of Custody of S.E.G. (Minn. 1994), 521 N.W.2d 357, 363. We agree with the Minnesota Supreme Court that, in light of the plain language used in the guidelines, the three expressly stated factors cannot be interpreted as merely illustrative of the circumstances which may constitute good cause. Rather, they are the only circumstances constituting good cause to avoid the § 1915(a) adoptive placement preferences. We conclude the District Court erred in determining that the factors set forth in the guidelines and the BIA's related commentary are merely examples, and not an exhaustive listing, of circumstances which constitute good cause.

¶22.The District Court then determined that "[i]f the competing factors are balanced, the scale weighs heavily, by clear and convincing evidence, in favor of retention in the Alberda home . . ." and that the listed factors "favor a finding of good cause" to avoid the ICWA placement preferences. The court's application of a balancing test weighing the benefits and detriments of placing C.H. with the Alberdas as opposed to the Ehrets is, in essence, a straightforward determination of C.H.'s best interests. See In re J.J.G., 1998 MT 28, ¶ 25, 287 Mont. 313, ¶ 25, 954 P.2d 1120, ¶ 25. However, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is improper to apply a best interests standard when determining whether good cause exists to avoid the ICWA placement preferences, because the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in conformance with the preferences. Riffle II, 277 Mont. at 393-95, 922 P.2d at 514-15. Consequently, the District Court's conclusion that the stated factors weigh in favor of a determination that good cause exists is an incorrect application of the law. As a result, we conclude that the District Court's fourth conclusion of law does not support a determination that good cause exists to avoid the § 1915(a) placement preferences.

. Indeed, the emotional attachment between a non-Indian custodian and an Indian child should not necessarily outweigh the interests of the Tribe and the child in having that child raised in the Indian community. See Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 54, 109 S.Ct. 1597, 1611, 104 L.Ed.2d 29, 50; see also In re Adoption of M.T.S. (Minn. App. 1992), 489 N.W.2d 285, 288. Moreover, a conclusion that an Indian child should be placed with a non-Indian foster parent because of a strong emotional bond is essentially a determination that it is in the child's best interests to be so placed. See M.T.S., 489 N.W.2d at 288. As stated above, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in accordance with the statutory preferences.

¶33.The District Court also concluded that C.H.'s need to be protected from the family member who abused her constituted an extraordinary physical or emotional need and that, if placed with the Ehrets, who are extended family members, the potential exists that she would come into contact with her abuser. In this regard, the Idaho Supreme Court has held that the need to avoid contact with a family member which could result in emotional or physical damage to a child can be an extraordinary physical or emotional need justifying placement outside the ICWA placement preferences. See Matter of Baby Boy Doe, 902 P.2d at 488.

ICWA further advances its goals by preferring Indian adoptive parents over non-Indian adoptive parents. …factors that may convince state courts that good cause does exist to deviate from the ICWA preferences. [FN10] Although the guidelines are only persuasive and are neither exclusive nor binding, "this court has looked to them for guidance." [FN11] These factors include: (1) the extraordinary physical and emotional needs of the child as established by testimony of a qualified expert witness; (2) the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preferences requirements; and (3) parental preferences in favor of deviation. [FN12] Accordingly, we have held that courts may consider parental preference when determining whether there is good cause to deviate from ICWA preferences. [FN13]

*7 In its initial January 2002 decision approving Keith's adoption by the Wilsons, the superior court found that good cause existed for deviating from ICWA placement preferences and that the adoption was in the best interests of the child. Judge Reese relied on several factors for deviating from the ICWA placement preferences, including Andrea's preference expressed when she purportedly relinquished her parental rights; the open nature of the adoption, which would allow Andrea to visit with Keith and assist the Wilsons in attending to Keith's cultural identity; and the emotional bonding of Keith to the Wilsons. Thus, the findings of the trial court in this case mirror those in F.H., [FN56] where we affirmed the superior court's finding of good cause to deviate from the ICWA placement preferences based on, among other factors, the biological mother's preference for the placement, the bond between the adoptive parent and the child, and the "openness" of the proposed adoption. All of these factors are present in the case now before us.

The superior court's reliance on Andrea's preference to have Keith adopted by the Wilsons was central to its decision and "was an appropriate factor for the superior court to consider in its finding of good cause." [FN57] As we noted in F.H., "ICWA and the Guidelines indicate that courts may consider parental preference when determining whether there is good cause to deviate from ICWA preferences." [FN58] And although a pivotal factor in this case, it was not the only factor that the superior court took into account in its finding of good cause to deviate from the ICWA preferences.

After the tribe's intervention into the case, the superior court supplemented its findings of good cause by relying on factors other than the mother's preference. These included the open nature of the adoption. As we recognized in F.H., reliance on an adoption structure that will "ensure access" by the biological parent to the child is "a proper factor for the superior court to consider." [FN59] In its consideration of the importance of sensitivity by the adoptive parents in this case to cultural issues, the superior court characterized the open adoption as "a life raft." Although recognizing that the Wilsons "do not understand much about native culture," the court found that "[t]he open adoption offers relief," and that "[r]easonable contact with the birth family can take care of that."

8 Finally, the superior court relied on the bonding between Keith and the Wilsons to find good cause to deviate from ICWA's placement preferences. The trial court found that it was "clear" and "not contested" that "[Keith] ha[d] closely bonded to the [Wilsons]" at the time of the October 10, 2001 hearing on the adoption. Two years have elapsed, and that bond has undoubtedly strengthened with time. As we noted in F.H., bonding between the adoptive mother and the child was "a proper factor for the superior court to consider." [FN61]

The damage that can be done to children by disrupting psychological ties between adoptive parents and children is well recognized. As we stated in Hernandez v. Lambert, "[a]doptive custody results in the rapid development of lasting and powerful psychological ties between adoptive parents and children, especially young children. Once formed, these bonds can seldom be severed without irreparable damage to the child's well being."

….I believe that the condition in this case must be construed at all times to be subject to the overriding interest in the welfare of the child.

In In re Adoption of F.H. a relinquishment conditioned on adoption by particular prospective adoptive parents was employed. [FN23] An adoption in favor of these prospective parents would have amounted to a deviation from the ICWA preferences. [FN24] The superior court held that the conditional nature of the relinquishment was one reason why good cause existed for deviation from the ICWA preferences, because otherwise there would be much uncertainty concerning the child's future. [FN25] We upheld the court's reliance on the conditional nature of the relinquishment. [FN26]

…The only public policy reason offered by today's opinion for setting aside the relinquishment is in order to "disallow the circumvention of procedures" inherent in the "relatively lengthy parental withdrawal period" allowed for adoptions under the consent track. [FN54] Since the time for withdrawal as a matter of right is exactly the same under state law for relinquishments and consents, what the majority appears to be saying is that the longer periods for withdrawing relinquishments as a matter of right provided by ICWA are desirable as a matter of public policy.

My response to this is that the primary source of public policy employed by this court should be the Alaska Statutes. ICWA must be followed where it applies. But I do not think that ICWA should be regarded as a source for public policy based rulings where the periods it mandates do not apply and differ from the express provisions of Alaska law.

However, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is improper to apply a best interests standard when determining whether good cause exists to avoid the ICWA placement preferences, because the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in conformance with the preferences.

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