Idaho SCT Decides ICWA Active Efforts Case

Here is the opinion for In re Jane Doe.

An excerpt:

Jane Doe appeals from an order terminating her parental rights to her son, TSD. Because TSD is an “Indian child” as that term is defined by the Indian Child Welfare Act, the magistrate court was required to make findings in addition to those required by Idaho law. Among other findings, the Department of Health and Welfare (“DHW”) was required to satisfy the court that it made “active efforts” to “prevent the breakup of the Indian family.” On appeal, Doe argues that the magistrate court erred in finding that DHW made such efforts and erred in failing to make that finding by clear and convincing evidence.


25 U.S.C. section 1912(d) requires that a party seeking termination of parental rights with respect to an Indian child “shall satisfy” the court that active efforts to prevent the breakup of the family have been made, not that the party show by clear and convincing evidence that such efforts have been made. The magistrate court stated that it was satisfied that DHW made active efforts to prevent the breakup of the family. In doing so, it made the finding required by 25 U.S.C. section 1912(d).

Split Alaska SCT Decides ICWA Active Efforts/Parental Rights Termination Case

Here is the opinion in Thea G. v. State, Dept. of Health & Social Services, Office of Children’s Services.

The affected tribe is Native Village of Kotzebue.

South Dakota SCT Issues ICWA Active Efforts Decision

Here is the opinion in In re S.H.E.

An excerpt:

The record demonstrates that DSS actively attempted to reunify the family. The services provided to Father, in conjunction with DSS’s considerable efforts to help Mother1 and Mother2, satisfy the “active efforts” requirement under ICWA. Accordingly, the circuit court did not err in finding, beyond a reasonable doubt, that reasonable and active efforts were made to reunify the family.

Adoptive Couple v. Baby Girl Cert Petition (South Carolina ICWA Case)

Here (we’ll post a pdf of the original when we get it):

Adoptive Couple v Baby Girl Cert Petition

No 12-__ Adoptive Couple v Baby Girl REDACTED

Questions presented:

(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
Lower court decision here.

Marcia Zug on Slate Supporting the South Carolina SCT ICWA Decision


An excerpt:

Veronica’s case is deeply troubling, and our hearts should go out to all involved, but the problems it highlights are not problems with ICWA. Rather, her case reveals the problems with ignoring ICWA. This case agonizingly demonstrates the importance of observing ICWA’s placement and termination procedures in order to prevent impermissible adoptions from occurring and then being invalidated later. Everyone involved in Veronica’s adoption knew she was an American Indian child, and if the ICWA requirements had been followed, Veronica would not have been placed with the Capobiancos in the first place. It was because of this mistake that Veronica was 2 years old rather than an infant when she was reunited with her father. The lesson from Veronica’s case is not that ICWA is some obscure loophole that should be closed. Rather, the ongoing court battle demonstrates that ICWA is a pivotal piece of American Indian legislation that cannot be ignored without traumatic consequences.

Split South Carolina SCT Complies with ICWA and Affirms Return of Child to Cherokee Father

Here is the opinion:

Adoptive Couple v Cherokee Nation

An excerpt:

We do not take lightly the grave interests at stake in this case. However, we are constrained by the law and convinced by the facts that the transfer of custody to Father was required under the law. Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order. Because this case involves an Indian child, the ICWA applies and confers conclusive custodial preference to the Indian parent. All of the rest of our determinations flow from this reality. While we have the highest respect for the deeply felt opinions expressed by the dissent, we simply see this case as one in which the dictates of federal Indian law supersede state law where the adoption and custody of an Indian child is at issue. Father did not consent to Baby Girl’s adoption, and we cannot say beyond a reasonable doubt that custody by him would result in serious emotional or physical harm to Baby Girl. Thus, under the federal standard we cannot terminate Father’s parental rights. For these reasons, we affirm the family court’s denial of the adoption decree and transfer of custody to Father.

News coverage here.

Sharply Split Alaska SCT Decides ICWA Active Efforts Case


Active efforts determinations are difficult in light of the terrible fact patterns judges see in these cases. We should expect to see many more of these cases in many states, especially Alaska, where there appears to be divergent views.