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.

Nebraska Supreme Court ICWA/NICWA Decision

Here.

This is a tough case of intergenerational removal. The Nebraska Supreme Court finds that both ICWA and NICWA apply to non-Indian parents of Indian children as defined by the statutes. The Court also found that NICWA’s different language in its active efforts provision, which requires active efforts not just to prevent the break up of the family, but to unite the parent with the Indian child, means the Baby Girl holding does not apply to that provision of state law. However, where NICWA’s language is the same as ICWA’s regarding “continued custody” in the termination of parental rights section, the Baby Girl holding does apply, and there is no need to find the continued custody of the child will result in serious physical or emotional damage, where the parent hasn’t had custody of the child.

While the new federal Regulations, which go into effect next week, are useful for tribes and Native families, state ICWA laws continue to hold the most promise for enforcement of the law in the courts. If your state is contemplating drafting one (either through a tribal-state workgroup, Court Improvement Program, or other mechanism), there are resources and people available to provide research and assistance.