Active Efforts Case out of Alaska Supreme Court

OCS correctly points out that “inadequate efforts in one period of state involvement do not render the entirety of [its] efforts inadequate, even when that period lasts for a matter of months.”28 And the superior court correctly found that OCS had made active efforts to reunify Clark and his children during the first two years of the case. But OCS’s failure to make adequate efforts in this case encompassed the subsequent two years, fully half of the time that the case was open. And its failure during that two year time period was extreme: OCS did not even attempt to contact Clark for a year and a half, and may have gone even longer without doing so if Clark had not initiated contact himself. OCS’s failure to make active efforts in the second two years of the case was so egregious that the efforts during the earlier period cannot make up for it. Because OCS’s efforts to reunite Clark with his family following his consent to guardianship were minimal at best, we reverse the superior court’s finding that OCS met the active efforts requirement.

Clark J. v. Dep’t of Health & Soc. Servs., Off. of Children’s Servs., No. S-17797, 2021 WL 1232066, at *7 (Alaska Apr. 2, 2021)

Children’s Bureau Letter on Termination of Parental Rights During COVID


A decision to file a TPR petition should be made in light of the impediments that a parent might face as a result of the pandemic. An agency should evaluate carefully whether parents have had a meaningful opportunity to demonstrate that they have made the necessary efforts to reunify with their children before taking that step.

As such, I urge agencies to continue to consider the totality of each family’s circumstances prior to filing a TPR petition. During the pandemic and its aftermath, agencies also may want to consider instituting protocols that provide an extra layer of review prior to filing a TPR petition.

Wisconsin Speakers Taskforce on Adoption Looking at Speeding up Adoptions

Press releases: Speakers Taskforce on Adoption Membership 052919
Speakers Taskforce on Adoption 051419

Any tribal member and/or tribe can give testimony on this issue here:

Thursday, July 25, 2019
Unity School District Performing Arts Center
1908 150th St.
Balsam Lake, WI 54810
Start time: 12:00 noon
Please feel free to attend either session. If you would like time to speak please contact: Meagan Matthews at: 608-266-8551 or

We would note that one outcome of the opioid epidemic is that some groups are pushing to terminate parental rights faster, particularly for children under the age of 3. A recent law passed in Arizona attempts to do just that, and was pushed by Generation Justice, a group founded by the recent past CEO of the Goldwater Institute.

ICWA Termination of Parental Rights Case out of Texas Court of Appeals

Opinion here.

On October 4, 2018, a federal district court in the Northern District of Texas issued an order declaring that portions of the Indian Child Welfare Act, including its placement preferences, are unconstitutional for several reasons, including that it violates equal protection and improperly requires state agencies to apply federal standards to state claims. See Brackeen v. Zinke, Civil Action No. 4:17-cv-00868-O, — F.Supp.3d —, 2018 WL 4927908 (N.D. Tex., October 4, 2018). In the Brackeen case, foster and adoptive parents, and the states of Texas, Louisiana, and Indiana filed suit against the United States, United States Department of the Interior and its Secretary, Bureau of Indian Affairs (BIA) and its Director, BIA Principal Assistant Secretary for Indian Affairs, and the Department of Health and Human Services (HHS) and its Secretary seeking a declaration that Indian Child Welfare Act (ICWA) was unconstitutional. Id. The Department contends that the United District Court’s order renders J.R.M.’s complaints moot, but the order does not indicate that the plaintiffs challenged the specific ICWA provisions at issue in this case. Further, the Brackeen case may be appealed and ICWA has previously been upheld by the United – 5 – States Supreme Court. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Therefore, we will address the merits of the issues raised on appeal.

Montana Supreme Court ICWA Case


The Montana Supreme Court continues to apply Baby Girl to absent fathers involved in state initiated proceedings, and not apply ICWA when terminating their rights.

Appellant Brief

Appellee Brief

Appellant Reply

Consent to Termination of Parental Rights Decision in Michigan Supreme Court

Opinion here

The ICWA Appellate Clinic co-represented the tribe in this case.

This case involves a complicated question of state statute interpretation regarding a voluntary consent to a termination of parental right in the face of a state termination petition. In this case, the dad consented to termination before the termination hearing. The children were later placed in a tribal-approved foster placement, and the dad withdrew his consent to termination. The question was whether dad could do that under Michigan statute.

None of the protections in MCL 712B.15, [mirroring ICWA’s main protections in an involuntary proceeding] which are designed for contested and adversarial proceedings, remains relevant once a parent voluntarily releases his or her rights under MCL 712B.13. When the court accepted Williams’s release, and the proceedings went from adversarial to cooperative, the protections of MCL 712B.15 did not apply.

However, the Court also held,

That is, Williams may withdraw his consent, but because he is still subject to MCL 712B.15, DHHS may refile a termination petition. MCL 712B.15. And, under MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to “the return of the Indian child” to him or her.

Instead, the child returns to the position the child was in before his or her parent consented to the termination of parental rights. Williams’s children were in foster care when he consented to the termination of his parental rights, his children will remain in foster care, and Williams will be once again subject to the procedures and protections of MCL 712B.15. DHHS may proceed with its termination case if it chooses, and if DHHS can satisfy the heightened requirements of MCL 712B.15, Williams’s parental rights can be terminated.

Briefing on the case is here.

Montana Supreme Court ICWA Case on Termination Standards


Appellant M.D. (Father) challenges the Thirteenth Judicial District Court’s decision to terminate his parental rights to his minor child, A.L.D. Father contends that the State of Montana’s Department of Public Health and Human Services (Department) did not provide the active efforts required under 25 U.S.C. § 1912(d) to prevent the breakup of an Indian family; that A.L.D. was placed in a foster home in violation of the placement preferences set forth in 25 U.S.C. § 1915; and that Father’s attorney provided ineffective assistance of counsel. We affirm.

Appellant Brief



Briefing Completed in Michigan Indian Family Preservation Act Case

At the Michigan Supreme Court:

Order Granting Review

Appellant (Father)’s Brief

Appellee (Macomb County/State)’s Brief

Sault Tribe Amicus Brief (MSU Indian Law Clinic, ICWA Appellate Project co-wrote this brief)

American Indian Law Section_AmicusBrief

Appellant Reply

Oral Argument Scheduling Order

Termination of Parental Rights Decision out of Wisconsin


The Wisconsin Court of Appeals affirmed a termination of parental rights decision under ICWA and WICWA using Adoptive Couple v. Baby Girl (finding abandonment/lack of continued custody by non-Indian father).

ICWA Expert Witness Case out of Colorado

Opinion here. The Colorado Court disagrees with holdings in Montana and Michigan on the same issue–what does a qualified expert witness have to say for it to count under 25 U.S.C. 1912(f).

Congress’s primary reason for requiring qualified expert testimony was to prevent courts from basing decisions “solely upon the testimony of social workers who possessed neither the specialized professional education nor the familiarity with Native [American] culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect.” Steven H., 190 P.3d at 185 (quoting L.G. v. State, 14 P.3d 946, 952- 53 (Alaska 2000)). This purpose would not necessarily be furthered by a requirement that an expert witness recite the precise language of 25 U.S.C. § 1912(f).


Although [the Regulations and Guidelines] emphasize the need for a qualified expert witness to offer testimony supporting a finding regarding likely damage to the child, they stop short of demanding a verbatim recitation of the statutory standard by the expert.


Additionally, the Department presented testimony from a
qualified expert witness under ICWA — a social worker with Navajo Children and Family Services. The social worker did not directly opine that the child would suffer damage in mother’s care. Rather, when asked to give her opinion regarding whether the child would suffer serious emotional or physical harm if returned to a parent, the social worker indicated that mother had not fulfilled the treatment requirements to address the reasons for the child being placed in the Department’s custody. The social worker also testified that the recent domestic violence issues between the parents were concerning.