We posted recently about the Supreme Court’s contempt for Congress. In this case that looks like an active efforts case, but turns into a long opinion interpreting many provisions of ICWA (active efforts, foster care placement, emergency removal) out of Oklahoma, it appears this contempt isn’t limited to the Supreme Court. This could be particularly harmful in ICWA cases. Opinion here.

From the trial court regarding active efforts in foster care placement:

The juvenile court announced his conclusion of ′′a lack of congressional intent in seeking foster care placement that active efforts have been proven unsuccessful. I think that was meant just for termination of parental rights proceeding.′′ Commenting ′′other courts have attempted to make rather constrained ways of finding active efforts have been met,′′ the court found ′′there has been offering of parenting classes to Father, even the placement of these children with their mothers is certainly an attempt to prevent the breakup of the Indian family, although they are not in [Father’s] care and he can’t have them returned to him on his demand.′′ After he acknowledged the opinion testimony of the qualified expert witness, Ms. Watashe, that ′′[active efforts] don’t apply but they have been met,′′ the court found ′′those things allow the Court to go forward with a finding that active efforts have been met here. I don’t find that they’ve been proven unsuccessful, but I don’t know how they could be at this stage. Again poor wording by Congress. Take that up.′

Footnote 10

And a troubling use of Baby Girl from the Oklahoma Appellate Court (this is a case where the children were with father, and removed on an abuse charge. NOT the fact pattern of Baby Girl):

Our decision to affirm is supported by the U.S. Supreme Court’s recent interpretation of ¶ 1912(d) in an adoption proceeding opposed by the Indian child’s biological father, a member of the Cherokee Nation who was never married to the child’s mother. See Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 2562- 2563 (June 25, 2013). In pertinent part, a majority of
the U.S. Supreme Court interpreted ¶ 1912(d) to apply ′′only in cases where an Indian family’s ′′breakup′′ would be precipitated by the termination of the parent’s rights,′′ and found such interpretation was confirmed by ¶ 1912(d)’s ′′placement next to ¶ 1912(e) and ¶ 1912(f), both of which condition the outcome of proceed- ings on the merits of an Indian child’s ’continued cus- tody’ with his parent.′′ (Emphasis added.) Id. Construing these adjacent provisions together, the Court further found:
None of the provisions create parental rights for unwed fathers where no such rights would otherwise exist. Instead, Indian parents who are already part of an ′′Indian family′′ are provided with access to ′′remedial services and rehabilitative programs′′ under ¶ 1912(d) so that their ′′custody′′ might be ′′continued′′ in a way that avoids foster-care placement under ¶ 1912(e) or termination of parental rights under ¶ [**59] 1912(f). In other words, the provision of ′′remedial services and rehabilitative programs′′ under ¶ 1912(d) supports the ′′continued custody′′ that is protected by ¶ 1912(e) and ¶ 1912(f). (Emphasis added; citation and footnote omitted.)
In this contested deprived child proceeding subject to ICWA, even if State had provided Father access to the specific services and programs after the show cause hearing and he had successfully commenced those programs, foster care placement could not have been avoided in light of the clear and convincing evidence supporting the juvenile court’s ¶ 1912(e)’s finding, i.e. at this stage of the proceeding Father’s continued custody was likely to result in serious emotional or physical damage to the children.