Washington Court of Appeals Case on Active Efforts [ICWA]

Here.

It took me a while to read this whole opinion and there are a lot of issues. But to start, I’d note that unlike some arguments in another unnamed federal ICWA case (Brackeen, it’s Brackeen), this case is yet another every day example where a state has to prove the best interests of the child standard and the ICWA standard–the ICWA standard didn’t supplant BIOC.

That said, there is some unnecessary Michigan trash talking in this case as the Court happily finds active efforts is more than reasonable efforts, but unhappily choses to adopt a “futility doctrine” for the active efforts finding. The futility “doctrine” for active efforts is a judicially created standard to excuse the state from providing active efforts to the parent.

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.

***

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.

***

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.

***
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.

Active Efforts and Transfer to Tribal Court Case out of Maine [ICWA]

Here.

This is a difficult case, but the opinion does a nice job of outlining how a state and Tribe can work together in a state court ICWA case to provide active efforts when reunification with the father would be essentially impossible (based on the facts provided). The Court also correctly identifies legal standards involved with the father’s attempt to transfer the case to tribal court.

Alaska Supreme Court on Active Efforts [ICWA]

Here.

I very nearly made an inadvertent broken record pun here, but seriously, I do talk about making a clean record a lot. OCS didn’t even manage to document state law requirements in this case. And in the continuing theme of this afternoon’s ICWA cases–the requirements of ICWA stand regardless of whether the agency finds the parents cooperative or not.

Like the superior court, we are underwhelmed by the quality of OCS’s testimony. We agree with the court’s observation that OCS “made a rather lackadaisical effort” and “put on a skeletal case about [its] required active efforts.” The superior court was rightly concerned to doubt OCS’s demonstration of active efforts. We acknowledge that the superior court concluded that OCS met its burden due in large part to “the consideration the Court is to give to the parents’ demonstration of an unwillingness to change or participate in rehabilitative efforts.” While this principle remains valid, the parents’ lack of effort does not excuse OCS’s failure to make and demonstrate its efforts. Even considering the parents’ lack of participation, there is simply insufficient evidence in the record to show that OCS made active efforts. It was legal error for the superior court to conclude by clear and convincing evidence that OCS made active efforts to reunify the family.

***
A related but distinct problem is OCS’s failure to document its active efforts in detail in the record. While documentation is related to OCS’s duty to make active efforts, documenting those efforts is a separate responsibility. The act of documentation is not itself an “active effort”; rather, it is a mechanism for OCS and the court to ensure that active efforts have been made. Documentation is required by ICWA and is critical to compliance with ICWA’s purpose and key protections. The CINA statute also requires OCS to document its provision of family reunification support services. But such documentation is woefully missing here.

Unpublished Nebraska Court of Appeals Case on Active Efforts (ICWA).

Here.

We rarely post unpublished ICWA cases because otherwise that’s all we would do. However, in this case involving an analysis of active efforts, the court found that:

Efforts made in this case included facilitating supervised visits, providing family support hours, drug testing, offering parenting classes to Nathaniel, placing Aviyanah in a NICWA-compliant foster home, and taking steps to enroll Aviyanah in the Rosebud Sioux tribe. Additionally, Nathaniel was provided transportation to visitations and during his job search.

Emphasis added.

This is not an active effort. This is the minimum requirement of 25 U.S.C. 1915 (placement preferences).

 

 

Article Out of Colorado on Keeping Kids in Foster Care in the Same School

While this article doesn’t talk about Native children populations, this is an aspect of foster care I always teach, and often law students find it surprising that children are moved out of their school district (and related sports teams, academic teams, IEPs, etc. etc.) when they are removed from their home. Federal law (not ICWA) requires kiddos who go into foster care to stay in the same school system, and yet:

When children are taken from their parents and placed in foster care, or when they change foster homes, caseworkers are required to convene a “best-interest determination” to decide whether the child should switch schools or stay put. The meeting includes teachers and school staff, parents, and in some cases, the child.

According to a state data sample of children who changed schools, that meeting happened before the school switch just 11 percent of the time in Colorado last year. More often than not, the meeting happened after the student had already transferred or didn’t happen at all.

Emphasis added. And this is in a state where the legislature ALLOCATED FUNDING for this federal requirement. To bring it into the ICWA world, while required by a separate federal law, I might still consider it active efforts to keep a kiddo in the same school district. It’s also just confounding to me the number of things required by both state and federal law that just simply do not happen in these cases (just in case you wondered what has Kate Fort cranky today. Also, this report which should be a totally different post about parents and active efforts and incarceration).

Placement Preferences/Active Efforts (ICWA) Case from South Dakota Supreme Court

InreMD

Footnote 4:

4. We are aware of the recent decision of the United States District Court for the Northern District of Texas holding parts of ICWA, including its placement preferences, unconstitutional. Brackeen v. Zinke, No. 4:17-cvoo868-0, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018). However, the decision may be appealed and ICWA has previously been upheld by the United States Supreme Court. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Moreover, we are not bound by the decision of the District Court in Texas and must presume that ICWA is constitutional. U.S. v. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561 (1963) (noting that Acts of Congress have “strong presumptive validity’); State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905 (“Statutes are presumed to be constitutional[.]”).

The Father argued the state failed to provide active efforts when the children were not placed within the placement preferences. The Court did not agree with his argument.

Nebraska Supreme Court ICWA Decision: Active Efforts

In re Micah H.

This case discusses how private parties (grandparents) can provide active efforts in a guardianship situation. This further develops this state case law in this area, most recently addressed in In re Micah H. (Neb. 2016), In re T.A.W. (Wash. 2016) and In re S.S. (Ariz. Ct. App. 2017):

In this case, Tyler was counseled by Linda concerning his drug and alcohol problems. The record shows that Linda suggested
multiple treatment programs in which Tyler could seek rehabilitation for his addiction. However, Linda and Daniel had no control with regard to forcing Tyler to seek treatment.

The record demonstrates that Linda and Daniel discussed proper parenting techniques and interactions with small children. Further, Linda and Daniel assisted with scheduling visitation
and the implementation of a parenting plan. Tyler demonstrated no need for housing, financial support, or transportation
to unite with Micah. Despite Tyler’s numerous criminal convictions involving drugs and alcohol, Tyler maintained that he
does not suffer from drug or alcohol addiction.

With the exception of completing parenting classes while in prison, Tyler has not sought to actively participate in drug and alcohol treatment or support programs. In fact, Tyler has attended only one Alcoholics Anonymous meeting while in prison, at the invitation of another, and suggested to the court
below that his presence at the meeting was for the purpose of supporting others in the program.

Based on the specific facts and circumstances of this case, we find that Linda and Daniel undertook active efforts to provide
remedial services and rehabilitative programs designed to unite Tyler and Micah.