active efforts

Published Burden of Proof ICWA/MIFPA Case out of Michigan Court of Appeals

Kate Fort

Here.

As set forth above, the relevant provisions of the ICWA and the MIFPA are essentially identical; that is, each requires proof by “clear and convincing evidence” to remove an Indian child and place him or her into foster care, 25 USC § 1912(e), MCL 712B.15(2); proof sufficient to satisfy the trial court that active efforts have been made to terminate parental rights, 25 USC § 1912(d), MCL 712B.15(3); and proof “beyond a reasonable doubt” that continued custody will harm the child, 25 USC § 1912(f); MCL 712B.15(4). Thus, as with its federal counterpart, the Legislature, in enacting the MIFPA, set forth specific evidentiary standards in MCL 712B.15(2) and (4), while declining to do so in MCL 712B.15(3). The inevitable conclusion, therefore, is that, like Congress, the Legislature intended for the “default” evidentiary standard applicable in child protective proceedings—i.e. clear and convincing evidence—to apply to the findings required under MCL 712B.15(3) as to whether “active efforts” were made to prevent the breakup of the Indian family. Accord In re JL, 485 Mich. at 318–319; In re Roe, 281 Mich. at 100–101. Therefore, because a default standard of proof applies to MCL 712B.15(3), it is not unconstitutionally vague.

 

Utah Court of Appeals ICWA Active Efforts Case

Kate Fort

Here.

Contrary to Father’s assertions, the testimony of the
ICWA expert witness from the Navajo tribe does not undermine
the juvenile court’s determination that further services directed
to Father would be futile. The ICWA expert witness testified that
she tried to contact Father toward the beginning of the case, but
that his number was out of service. She also testified that Father
was in need of services to address parenting, substance abuse,
and domestic violence issues, and that he was not ready to take
custody without those services. With regard to the active efforts
requirement, the expert testified that she ‚would like to see a
little more effort by‛ DCFS, but that Father ‚needed to stay in
contact with‛ DCFS.

Active Efforts and Burden of Proof ICWA Case out of NM Court of Appeals

Kate Fort2 Comments

Here.

The court held that the burden for active efforts is clear and convincing evidence. In addition, that active efforts consists of more than reasonable efforts, citing to the 2015 Guidelines and other state court decisions. In this case, the court held there was not clear and convincing evidence that the state provided active efforts:

The testimony at the TPR demonstrates that the Department took the affirmative steps of meeting with Father to create a treatment plan, and referring Father to a parenting class. It appears the Department pointed Father in the direction of service providers, but did little else to assist Father in implementing the treatment plan. Father was not offered services aside from the one parenting class. The Department took a passive role by shouldering Father with the burden of not only independently locating and obtaining services, but also ensuring the service providers were communicating with the Department about his progress.

Published California ICWA Opinion on QEW and Active Efforts

Kate Fort

Here.

Among other things, this case demonstrates some of the confusion going on in the courts about WHEN certain provisions of ICWA are required. Must there be a qualified expert witness at disposition hearings? What if the court makes a finding about returning a child to a parent at a disposition hearing? And finally, who is responsible for getting QEW testimony?

(The answer to the last one is the State. Not the tribe, not the parent, and it’s not waive-able [though that happens] since it’s the evidentiary burden of the State to have a QEW who agrees with termination or foster care.)

Active Efforts/Step-Parent Adoption Case out of Washington Court of Appeals

Kate Fort

Here.

The Court found the active efforts provision applied to the termination of father’s parental rights in a step-parent adoption, despite the father being non-Indian. In addition, the court found active efforts applied despite Adoptive Couple v. Baby Girl, not only because the facts were different, but also because of the Washington state ICWA statute.

Unpublished ICWA Related Opinion out of California

Kate Fort

Here.

There’s a fair amount going on in the description of this case (active efforts, involvement of the tribe, CA statutory tribal adoption), but we were interested in this near the end of the opinion:

Mother relies on the tribal representative’s response to the termination of reunification services. In an October 23, 2014, e-mail correspondence, the tribal representative wrote, “[W]e … believe that it was a HUGE disservice to the family to discontinue active efforts. Here in the State of Alaska, the department must provide active efforts right up until the day of reunification, guardianship is finalized or termination of parental rights.”
The tribal representative’s concern appears to have been the California practice of discontinuing reunification services at the review hearing held several months prior to the selection and implementation hearing. Whether a “disservice” or not, the juvenile court terminated services at the point contemplated by our dependency scheme.

Unpublished Active Efforts Case Out of California

Kate Fort

Here. Whether the state has the obligation to assist in enrolling dad and child at in the Chickasaw Nation as an active efforts requirement. The California Rules of Court include that in their definition of active efforts:

We note that the California Supreme Court is currently reviewing the validity of California Rules of Court, rules 5.482(c) and 5.484(c) in In re Abbigail A. (2014) 226 Cal.App.4th 1450, review granted September 10, 2014, S220187. However, briefing and decision of the issue in this court and further potential review in the Supreme Court would significantly delay this matter, while stipulated reversal with directions will benefit R.P.’s interests more expeditiously. (In re Rashad H., supra, 78 Cal.App.4th at p. 380.)
Reversal is therefore appropriate given DPSS’s and the juvenile court’s failure to make active efforts to secure tribal membership for R.P. Although only mother appealed, the parental rights termination order must be reversed as to both mother and father. (In re Mary G. (2007) 151 Cal.App.4th 184, 208.)

Three (Unpublished) California ICWA Cases

Kate Fort

One notice opinion involving relationships with the Pala Band of Mission Indians and perhaps a Cahuilla tribe, but of course, the department would have to send notice to determine that.

A second opinion holding the rules requiring CPS to help enroll a child in her tribe (Cherokee) as active efforts are valid

Consistent with this state interest in protecting an Indian child’s interest in tribal membership, rules 5.482 and 5.484 impose an affirmative duty on the juvenile court and the county welfare department to make an active effort to obtain tribal membership for a child when the tribe has notified the county welfare department that the child is eligible. To the extent the rules require CPS to make a reasonable, active attempt to obtain tribal membership for a child, we conclude the rules do not expand or conflict with the state or federal statutory definition of an Indian child. The rules’ requirement that CPS “provide active efforts under rule 5.484(c) to secure tribal membership for the child” (rule 5.482(c)) furthers the objective of ICWA and has no bearing on the ICWA definition of “Indian child.”

***

CPS received four requests to complete an enrollment application, beginning in December 2012, and still had not done so over six months later. The record does not show any reason for CPS not providing the Tribe with a completed, signed enrollment application by the time of the section 366.26 hearing in June 2013.
We therefore conclude CPS failed to comply with rules 5.482(c) and 5.484(c) by not taking reasonable, active steps to secure tribal membership for the children. Such error was not harmless. Active efforts to obtain membership for the children likely would lead to the children becoming Tribe members subject to ICWA protections, and would enable the Tribe to intervene if it so chose.

Finally, a fairly standard ICWA notice case, where even after the following, the parents were asked in court to stipulate that this was not an ICWA case.

In this case, Father provided the name and contact information for his uncle who he believed could provide more information about the children’s grandmother who was alleged to have Cherokee ancestry. There is no evidence in the record the Agency contacted the uncle. Further, the agency did not respond to the repeated requests from the Cherokee Nation for additional information. The Agency failed to make reasonable efforts to obtain any additional family history. Under these circumstances, we find the ICWA notice was inadequate because the Cherokee Nation was deprived of a meaningful opportunity to determine if M.S., E.S., and A.S. were Indian children.

Nebraska Supreme Court ICWA Decision on Active Efforts

Kate Fort1 Comment

Here.

As covered on Friday by NICWA and others, the Nebraska Supreme Court ruled on the active efforts standard. Specifically,

 The sole issue presented is whether the active efforts standard of 25 U.S.C. § 1912(d) of the federal Indian Child Welfare Act of 1978 (ICWA)1 and § 43-1505(4) of the Nebraska Indian Child Welfare Act (NICWA) applies when a juvenile court physically places an Indian child with his or her parent but awards another entity legal custody of the Indian child. The question is whether this disposition in an involuntary juvenile proceeding is “seeking to effect a foster care placement” within the meaning of ICWA/NICWA. Upon further review, we agree with the Nebraska Court of Appeals and hold that at any point in an involuntary juvenile proceeding involving an Indian child at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard applies in place of the reasonable efforts standard applicable in cases involving non- Indian children.

MIFPA/ICWA Expert Witness and Active Efforts Case out of Michigan COA

Kate Fort1 Comment

Here.

The court conditionally reversed the trial court because of a lack of proper expert witness testimony (citing ICWA, MIFPA and the Guidelines). It also finds that the agency made active efforts–even if there was no testimony for each element in the MIFPA definition of active efforts.

Interestingly, this case also addresses what child protective orders may be appealed (or not) in Michigan, and advises the Michigan Supreme Court to revise the Michigan Court Rules to allow for an appeal of right of a removal of a child:

We also suggest that the Supreme Court consider modifying MCR 3.993 in order to permit a parental appeal of right, at least under some circumstances, from removal order when a child is removed from his or her parents at a stage prior to adjudication. Where a parent’s action or neglect threatens a child’s safety sufficient to justify removal at the outset of a child protective proceeding, it is neither surprising nor objectionable that such removal would correlate with a higher likelihood of termination. However, as several recent cases have shown, the decision to remove a child can substantially affect the balance of the child protective proceedings even where the initial concerns are eventually determined to have been overstated.

In such cases, the parent may find his or her parental rights terminated not because of neglect or abuse, but because of (1) a failure to adequately comply with the Department’s directives and programs and (2) a loss of bonding due to a lack of parental visitation.