Active Efforts Case out of Montana [ICWA]

In re K.L.

Just yesterday, a colleague mentioned an article I wrote a few years ago in the Federal Lawyer about ICWA and military families, and I said, yes, we really need to update that. And today, I read this case:

Father was present at the March 23, 2017 adjudication hearing and stipulated to
adjudication of Child as a YINC and stipulated to the proposed treatment plan.1 At this time, Father was participating in the Veterans’ Treatment Court (VTC). As the Department did not want to duplicate services, the Department agreed that tasks Father successfully completed in VTC would satisfy tasks delineated in his treatment plan.

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Father continued to participate in VTC. Throughout his participation and beyond
his successful graduation from VTC on August 7, 2018, CPS repeatedly reported Father was doing well and did not indicate dissatisfaction with Father’s compliance with his treatment plan or level of engagement with the Department.

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In the permanency plan filed with the court on February 2, 2018, the Department
wrote “the permanency plan for the child is reunification with the birth father once he has completed Veterans Court.” Approximately one month later, the Department abruptly changed course. On March 22, 2018, CPS and his supervisor met with Father to discuss reunification and gave him a letter, advising Father that he needed to step-up his parenting by April 19 or the Department would file for termination. . . . This letter basically advised Father it was time to sink or swim as a parent. Here, over a year into the case, was the first time the Department expressed that Father was not meeting the Department’s expectations in terms of compliance with his treatment plan and engagement with the Department.

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Less than two months later, on September 7, 2018, the Department filed to terminate Father’s parental rights for failure to complete his court-ordered treatment plan.

In the accompanying affidavit, CPS listed the following efforts he considered to be active efforts taken by the Department:

(a) Investigation into the current report;
(b) Review of prior reports/investigation;
(c) Interviews with collateral contacts;
(d) Communication with Benefis Labor and Delivery / NICU;
(e) Ongoing Collaboration with placement, [M.D.];
(f) Conducted diligent search to locate extended family;
(g) Ongoing communication with Allen Lanning, counsel for birth father;
(h) Communication with Probation and Parole.

Prior to filing the termination petition, there is nothing in the record evidencing the Department had even referred Father to any ancillary services required by the treatment plan—parenting classes, mental health assessment or anger management classes—or assisted father in addressing the transportation, daycare, or housing deficiencies asserted by the Department in its March letter.

In “good” news, the Court held the Department did not accomplish active efforts and reversed the termination order, as it should, because none of those things listed above are active efforts, and frankly are not even reasonable efforts.