Nebraska Supreme Court ICWA Decision on Active Efforts


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.

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

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).

Nebraska Court of Appeals — State Must Plead Active Efforts Prior to Termination

Here is the Nebraska Court of Appeals decision in In re Shayla H. From the court’s syllabus:

Indian Child Welfare Act: Pleadings. The Indian Child Welfare Act’s requirement of “active efforts” is separate and distinct from the “reasonable efforts” provision of Neb. Rev. Stat. § 43-292(6) (Reissue 2008) and therefore requires the State to plead active efforts by the State to prevent the breakup of the family.