(a) Evidentiary burdens.
The court may only terminate parental rights to an Indian child or declare an Indian child free of the custody and control of one or both parents if at the hearing terminating parental rights or declaring the child free of the custody and control of one or both parents, the court:
(1) Finds by clear and convincing evidence that active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family were made; and
(2) Makes a determination, supported by evidence beyond a reasonable doubt, including testimony of one or more "qualified expert witnesses" as defined in Welfare and Institutions Code section 224.6 and Family Code section 177(a), that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
(b) When parental rights may not be terminated.
The court may not terminate parental rights to an Indian child or declare a child free from the custody and control of one or both parents if the court finds a compelling reason for determining that termination of parental rights would not be in the child's best interest. Such a reason may include:
(1) The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. For purposes of an Indian child, "relative" must include an "extended family member," as defined in the Indian Child Welfare Act (25 U.S.C. § 1903(2));
(2) Termination of parental rights would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights; or
(3) The child's tribe has identified tribal customary adoption, guardianship, long-term foster care with a fit and willing relative, or another planned permanent living arrangement for the child.
(Subd (b) amended effective January 1, 2020.)
Rule 5.486 renumbered and amended effective January 1, 2020; adopted as rule 5.485 effective January 1, 2008; previously amended effective January 1, 2013.