Active Efforts Case out of the Colorado Supreme Court

I did not realize how far behind I was on these. Here is a case from the end of June on active efforts from the Colorado Supreme Court.

2022-21sc245

To be honest, this case holding is one that most, if not all, states have come to agreement on either in case law, state law, or state policy.

The court concludes that ICWA’s “active efforts” is a heightened standard requiring a greater degree of engagement by agencies like DHS with Native American families compared to the traditional “reasonable efforts” standard.

Washington Supreme Court Opinion on Active Efforts

Catching up on posting the summer’s reported ICWA cases, so I’m starting with this Washington Supreme Court opinion on active efforts for the initial or shelter care hear.

JMWOpinion 

We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, we conclude that it did. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. We remand to the trial court for further proceedings consistent with this opinion.

This opinion is trying to find some clarity in what ICWA standards apply when. Here are the two questions the Court sought to answer:

First, whether the department is required to make active efforts to keep an Indian child with their family under such circumstances as presented here. Second, whether the trial court was required to make a formal finding at the interim shelter care hearing that continued placement out of the home was necessary to prevent imminent physical damage or harm to the child.

The section question is essentially asking if the emergency standard of 1922 should apply whenever a child is placed out of the home and there is no 1912 (active efforts, QEW) findings. Interim shelter care hearings often happen before a jurisdictional/adjudication hearing, and can sometimes (often) extend the time before  adjudication hearing happens. In many states the 1912 findings happen either at adjudication or even after that, at the disposition hearing.

Active Efforts Case from South Dakota Supreme Court [ICWA]

South Dakota is sending us into the weekend with a positive attitude with this decision. In a shocking development [not shocking] it turns out that if an agency “ceased providing any efforts toward reunification after the December 2019 hearing. This means that from December 2019 to September 2020 no efforts were made by DSS to provide Mother remedial services or rehabilitative programs and no efforts were made to reunite C.H. with Mother” then, “[t]he circuit court’s finding of fact to the contrary—that DSS ‘has been providing active efforts to this family since October 2, 2018; including in-home services to prevent placement, and ongoing services to allow safe return of the child to no avail’—is not supported by the record. To the extent this finding suggests that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is clearly erroneous.”

Unusually, I didn’t add any of the italics. That’s all the South Dakota Supreme Court. 

Also, anyone else get excited when a Court starts a paragraph like this: “Because this error [termination of parental rights] requires a remand, we take this opportunity to address additional errors that occurred below to prevent their reoccurrence.”?  _insert eating popcorn emoji_

So, in addition to not appointing the child an attorney despite state law requiring it, the Court also says “Second, although not raised as an issue on appeal, there are glaring defects involving ICWA mandates in the underlying proceeding that we cannot ignore.” The QEW testimony did not satisfy the evidentiary burden, and the court found that termination was not the least restrictive alternative given the child’s best interests. 

Mom did a ton of work on her own in this case despite and in spite of the state’s inaction. The Court’s recognition of this is a welcome change from most child welfare decisions. 

WA Supreme Court En Banc Decision on Active Efforts [ICWA]

Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. Trying to pull out one quote is nearly impossible–just go read from page 16 to the end. And her last paragraph may become on one of the most quoted in ICWA caselaw:

The history of the United States and its relationship with Native tribes, communities, and families tell a story of promises made and broken. We rely on the commitment made by Congress and the Washington State Legislature to decline to remove Native children from their families and communities unless absolutely necessary and to actively work toward reunification in those limited instances when the high standard for removal has been met. Today, we hold our state child welfare system and our courts to those promises. We reverse the dependency court’s finding that the Department provided active efforts and remand to the trial court with instructions to order the Department to provide active efforts in accordance with this ruling. We also order the dependency court to not proceed to hear the termination petitions until the Department has provided active efforts.

 

In addition, the Washington team assembled a number of amicus briefs (including the MSU Indian Law Clinic) on this case. A special shout out to Tara Urs for being so on top of these cases every time. 

Active Efforts Case out of Alaska Supreme Court

OCS correctly points out that “inadequate efforts in one period of state involvement do not render the entirety of [its] efforts inadequate, even when that period lasts for a matter of months.”28 And the superior court correctly found that OCS had made active efforts to reunify Clark and his children during the first two years of the case. But OCS’s failure to make adequate efforts in this case encompassed the subsequent two years, fully half of the time that the case was open. And its failure during that two year time period was extreme: OCS did not even attempt to contact Clark for a year and a half, and may have gone even longer without doing so if Clark had not initiated contact himself. OCS’s failure to make active efforts in the second two years of the case was so egregious that the efforts during the earlier period cannot make up for it. Because OCS’s efforts to reunite Clark with his family following his consent to guardianship were minimal at best, we reverse the superior court’s finding that OCS met the active efforts requirement.

Clark J. v. Dep’t of Health & Soc. Servs., Off. of Children’s Servs., No. S-17797, 2021 WL 1232066, at *7 (Alaska Apr. 2, 2021)

New NCJFCJ Publication on Active Efforts

Here.

Congress passed the Indian Child Welfare Act (ICWA) in 1978 to address the widespread practice of state entities removing American Indian and Alaskan Native children from their homes and families. Congress found “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that a high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”

This publication is a companion to others developed by the National Council of Juvenile and Family Court Judges (NCJFCJ) regarding ICWA for judges, court staff, attorneys, child welfare professionals, and other stakeholders involved in child welfare cases. It focuses on the use of active efforts as an essential tool in the implementation of ICWA and as a best practice in child welfare. It is intended to provide the history behind ICWA and, in doing so, outline both the why and the how of active efforts in ICWA implementation. 

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.