active efforts

Montana ICWA Case: Notice, Active Efforts and a Look at Adoptive Couple Citations

Kate Fort1 Comment

Here.

A footnote in the case,

The record does not clarify whether G.S. ever had custody of M.S. The record is silent regarding G.S.’s relationship with M.S. prior to his incarceration. We recognize that 25 U.S.C. 1912(d) does not apply where the “breakup of the Indian family” has long since occurred. In re J.S., 2014 MT 79, P29, 374 Mont. 329, 321 P.3d 103 (citing Adoptive Couple v. Baby Girl, 570 U.S. __, 133 S.Ct. 2552, 2559 (2013)). Although the District Court asked during the April 22, 2013 hearing, before Baby Girl was decided, how the ICWA standard for termination applies in a situation where the child was never in the parent’s custody, the parties did not dispute that ICWA’s active efforts were required. Because this potential issue was not raised, we will not address it in this appeal.

got me looking for other cases that have cited Adoptive Couple. According to Westlaw, that would be 19 cases, including this one. Striking four of them as not child welfare cases, all 15 remaining were involuntary proceedings. Five from California, two from Montana, and one in Alaska, Nebraska, Oklahoma, North Carolina, North Dakota, Minnesota, Michigan, and Virginia.  Three cases “distinguished” Adoptive Couple, though that included the Alexandria P. case, so distinguishing Adoptive Couple doesn’t necessarily mean the court followed ICWA. Seven of the cases only cited the case (including this one).

Those that used the Adoptive Couple reasoning (instead of citing the case for fairly standard ICWA language)  include:

Native Villiage of Tununak v. State (holding that the adoption preferences of ICWA didn’t apply if the preferred placement didn’t “formally” move to adopt the child);

In re J.S. (applying the “continued custody” reasoning to a guardianship); and

In re Elise W. (discussing whether the case would change notice requirements when a parent never had custody)(unpublished case out of California’s First District).

In re T.S. (discussing when active efforts must start, in light of 1922 and 1912(d))

Published Definition of Indian Child Case out of California

Kate Fort

Here.

Active Efforts Case Out of Washington Court of Appeals

Kate Fort

Here.

Despite Louch’s argument that visitation is a remedial service under ICWA, that term is not defined in the federal or state version of ICWA. Louch cites no state or federal case holding that visitation itself is a remedial service for purposes of ICWA. Visitation as part of a parenting class or other therapy might be part of a remedial service, but consistent with T.H., visitation in and of itself is not “remedial.”
Finally, even assuming visitation is a remedial service, “ICWA does not require the State to continue making active efforts to remedy parental deficiencies at the expense of physical or emotional damage to the child.”43 Numerous courts have held that active efforts under the federal ICWA does not mean persisting with futile efforts.44

***

He also claims that, due to his severe mistrust of the child welfare system, the Department was required to “determine a different approach” to working with him in order to engage him in services.48 But services were coordinated through the Nooksack Indian Tribe, and Louch cites no authority supporting his argument that the Department did not engage in active efforts by failing to provide access to the specific cultural activities referenced above.4

According to the opinion, the child in this case was placed with an American Indian family who are also taking care of her two other siblings.

California Appeals Court Finds Court Rules about Indian Children Inconsistent with Legislative Intent

Kate Fort

Decision (a rare published ICWA decision for CA).

The children were eligible for membership at Cherokee Nation of Oklahoma. The trial court ordered DHHS to help enroll the children as active efforts. DHHS appealed. The appellate court found that both ICWA and California state law limited the definition of Indian child (member, or bio child of a member and eligible), and if the children did not fit in that definition, the laws did not apply. As such, the rules were beyond the scope of the Judicial Counsel to pass.

The rules:

Rule 5.482(c) states, “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.”
Rule 5.484(c) states, “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made, in any proceeding listed in rule 5.480, to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful.
“(1) The court must consider whether active efforts were made in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe.

(2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”

 

Nebraska Court of Appeals: Active Efforts Required When Children Under State Jurisdiction are In Parental Home

Kate Fort

Opinion here.

Case law in this state has clearly established that the active efforts standard in this section requires more than the reason- able efforts standard that applies in cases not involving ICWA. See, In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008); In re Interest of Ramon N., 18 Neb. App. 574, 789 N.W.2d 272 (2010). See, also, Neb. Rev. Stat. § 43-292(6) (Cum. Supp. 2012).
The question presented to us in this case is whether ICWA’s active efforts standard applies when the State, through DHHS, has legal custody of the children, but the children are placed in the parental home. Nebraska appellate courts have not spe- cifically addressed this question. David argues that case law from other jurisdictions should lead this court to conclude that ICWA’s protections are applicable at all stages of a juvenile court proceeding.

***

In reaching the conclusion that active efforts should be pro- vided during periods that placement of the children is with the parent or parents, we recognize that the active efforts required may certainly be different from those required during a period of removal from the home. As discussed by the Nebraska Supreme Court in In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008), the active efforts standard requires a case-by-case analysis. See, e.g., In re Interest of Louis S. et al., supra (where further rehabilitative efforts would be futile, requirement of active efforts is satisfied); T.F. v. State, Dept. of H & S Services, 26 P.3d 1089 (Alaska 2001); People ex rel. D.G., 679 N.W.2d 497 (S.D. 2004); In re Cari B., 327 Ill. App. 3d 743, 763 N.E.2d 917, 261 Ill. Dec. 668 (2002) (degree of active efforts required to prevent Indian familial breakup reduced by parent’s incarceration).

In re LNP, Guardianship and ICWA

Kate Fort

Wyoming Supreme Court decision.

Multiple ICWA issues, including applying ICWA to permanent guardianships, the shift from a temporary guardianship to a full or “plenary” guardianship, the requirements of a qualified expert witness, the ability of guardians to provide active efforts, and even a little existing Indian family doctrine in the qualifying of the expert witness.

Nebraska Court of Appeals Decides ICWA “Active Efforts” Case

Matthew L.M. Fletcher

Here is the court’s opinion in In re Louis S. An excerpt:

Chad does not appeal the § 43-292 statutory grounds for termination of parental rights, or that such termination was in the children’s best interests. His grounds for appeal lie strictly with the additional requirements of the ICWA–active efforts and proof  of serious emotional or physical harm. As stated previously, we find that active efforts were made and that the children would suffer serious emotional or physical harm if Chad retained custody. Therefore, we affirm the decision of the juvenile court terminating Chad’s parental rights to these children.

Alaska Supreme Court Decides ICWA Case

Matthew L.M. Fletcher

Here is the opinion in Jon S. v. State of Alaska, Dept. of Health and Social Services. An excerpt:

A father challenges a superior court order finding his daughter, an Indian child under the Indian Child Welfare Act (ICWA), to be a child in need of aid and terminating his parental rights. We conclude that the record contains sufficient evidence to support the superior court’s findings that: (1) the daughter was a child in need of aid; (2) the father failed to remedy the conduct or conditions placing her at harm; (3) the state met its active efforts burden; (4) returning the daughter to the father would beyond a reasonable doubt be likely to cause her serious emotional harm; and (5) termination of parental rights was in the best interests of the child. We therefore affirm.

And here is the court’s conclusion in relation to the ICWA “active efforts” requirement:

We analyze the state’s active efforts based on its “overall handling of the case,”  including efforts by Jon’s parole officers. Because the record and testimony show that OCS and Jon’s parole officers made active efforts throughout 2005 and 2006, actively continued trying to locate Jon between October 2006 and April 2007, provided visitation with Melissa once Jon was located again, and actively pursued placement with Jon’s family from October 2006 through November 2007, we hold that the superior court did not clearly err in finding that the state made active efforts.

Maryland High Court Decides ICWA Active Efforts Case

Matthew L.M. Fletcher

By a 5-2 margin, the Maryland Court of Appeals in In re Nicole B. (opinion) refused to overturn a lower court decision applying the “reasonable efforts” standard instead of the standard articulated in the Indian Child Welfare Act, “active efforts.” An excerpt from the dissent:

I disagree with the majority’s decision to avoid answering the certiorari question in this case, i.e,whether “reasonable efforts” as used in the Federal statute, differ from “active efforts” as used in the Family Law Article. Second, I do not believe it is appropriate for this Court to usurp the role of the trial court and to make first level findings of fact. The trial court used the wrong standard when it concluded that the Department made reasonable efforts to achieve reunification with the children’s parents. Accordingly, I would hold that the ICWA requirement that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family have proved unsuccessful is a different standard than that set out in § 5-525 of the Family Law Article of the Maryland Code which requires that reasonable efforts have been made.

Published Active Efforts Case in California

Kate Fort

This question was debated often in my ICWA class this year–what would  active efforts consist of for a sex offender and/or pedophile parent (father, in this case)?  The California Court of Appeals, 4th district, held there are none required:

Nevertheless, his history clearly demonstrates the futility of offering reunification services: He is a registered sex offender with a prior conviction for lewd and lascivious acts on a child under the age of 14.  . . . The parents do not suggest any services which might have been offered to the father under the circumstances and we cannot conceive of any services which could usefully be offered to a registered sex offender with a prior conviction for molesting a child and a current finding of molesting a different child. For these reasons, requiring the court to provide services to the father would be at best an idle act which would not further the legislative purposes of ICWA.

While this quote is from the section of the case discussing active efforts prior to removal to foster care, the court came to the same conclusion for active efforts prior to termination.

Oddly, the court is also confused as to whether the father is Cherokee or Choctaw, using them interchangeably at one point.

In re K.B. Opinion