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Preserving the Indian Child’s Family: Active vs. Reasonable Efforts

Donna J. Goldsmith Esq., General Counsel, Alaska Federation of Natives

Summary: In discerning how “active efforts” required by the Indian Child Welfare Act should be distinguished from the “reasonable efforts” required by the Adoption and Safe Families Act, most jurisdictions adhere to the view that active efforts require a higher level of services than reasonable efforts.

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Section 1912(d) of the Indian Child Welfare Act (ICWA) requires any party seeking to remove an Indian child from his home under state law to demonstrate that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts proved unsuccessful.”[1] Congress intended this language to ensure that removal of an Indian child from his home in dependency cases occur after the family has received affirmative services designed to eliminate the circumstances resulting in the initiation of dependency proceedings, and that the proffered services failed to alleviate the situation that threatens the child’s safety and well-being.[2] Any party seeking removal of the child must make active efforts to alleviate the need for the removal prior to the removal of the child from the home,[3] and, after removal, to facilitate reunification of the child with his/her family. The active efforts requirement applies from the inception throughout the entirety of the proceedings involving an Indian child. It also applies to those proceedings in which a parent has withdrawn his/her consent to a voluntary adoption and the state has initiated termination proceedings.[4] This requirement applies regardless of whether the child’s tribe has intervened in the proceedings.[5]

While no single formula exists to help judges assess whether an agency has met the active efforts requirements,[6] the ICWA guidelines issued by the Bureau of Indian Affairs provide important assistance in this regard.[7] In addition, a number of states have either amended state law to reflect the principles and requirements established within ICWA,[8] and/or have developed tribal-state agreements, memoranda of understanding, or other guiding documents[9] to assist caseworkers and judges in better implementing the requirements of ICWA. These documents are available from NCJFCJ upon request. In discerning how “active efforts” should be distinguished from the “reasonable efforts” required by the Adoption and Safe Families Act (ASFA) in all dependency cases, most jurisdictions adhere to the view that active efforts require a higher level of services than reasonable efforts,[10] as suggested in the legislative history to ICWA,[11] and that agencies and courts must assess active efforts on a case-by-case basis.[12]

Several themes have emerged in the case law that deciphers what constitutes active efforts. Active efforts must be affirmative and timely. In addition, courts have consistently held that ICWA’s active efforts standard requires caseworkers to affirmatively walk the parent or Indian custodian through each step of the case plan, and to assist them in accessing the services and meeting the obligations under the plan.[13] Michigan requires caseworkers to “take a proactive approach with clients and actively support them in complying with the service plan rather than requiring the service plan be completed by the client alone.”[14] These affirmative efforts may include, but should not be limited to, affirmatively assisting the parent or Indian custodian in their efforts to access food, medical treatment, safe housing, parenting classes, emergency phone service, substance abuse treatment, transportation to/from services, day care, or whatever other services will assist the parent in retaining custody of the child. It bears repeating that there must be a reasonable nexus between the service offered and the issue that caused the child’s removal in the first place. In other words, the affirmative effort must be clearly designed to facilitate reunification of the child and the family.

As with other key requirements of ICWA, identification of the child’s tribal membership, and subsequent notice to and consultation with the child’s tribe at the onset of the case, are the foundation of ICWA’s active efforts requirement.[15] Tribal consultation ensures that the tribe receive all relevant information regarding the family’s case, and ensures that the child’s tribe has an opportunity for active and early participation in all case planning and decision making that will affect the child’s health and welfare. Early tribal participation ensures identification of all available culturally relevant resources, including the child’s extended family, tribe, other members of the Indian community, and other Indian social service agencies.[16] This may greatly expand the relevant rehabilitative services available to the parent or Indian custodian to work toward reunification with the child, thereby increasing the likelihood of success. It also ensures that the child retains access to his culture, which is vital to the best interests and overall health and well-being of the child.

It is worth noting that ASFA does not modify, limit, or supercede the active efforts requirements of ICWA.[17] In addition, many courts have concluded that ICWA does not exempt or excuse the need for active efforts in those cases where aggravated circumstances or extreme conduct on the part of a parent or custodian are at issue. Active efforts must be made unless or until the parent/Indian custodian refuses to engage in the services.[18] However, ICWA does not require that futile efforts be made.[19]

To ensure that courts make the requisite active efforts findings under ICWA, many jurisdictions require judges to make two independent but parallel findings in proceedings for foster care placement or termination of parental rights under ICWA, i.e., whether active efforts and reasonable efforts have been made.

 


 

[1] 25 U.S.C. § 1911(d).

[2] During legislative hearings leading to passage of ICWA, Congress heard overwhelming testimony that state social workers often removed Indian children from their homes without applying any legal standards for removal. See H.R. Report No. 1386, 95th Cong., 2d Sess. 23 (1978), reprinted in U.S. Code Cong. & Admin. News 7530.

[3] This requirement does not supersede the need to remove a child in emergency situations to prevent imminent harm to the child. See 25 U.S.C. § 1922.

[4] See, e.g., In re Appeal in Pima County Juvenile Action No. S-903, 635 P.2d 187 (Ariz. App. 1981).

[5] In re Jonathon S., 28 CR3d 495 (Cal. Ct. App. 2005).

[6] A.A. v. State of Alaska, Department of Family & Youth Services, 982 P.2d 256, 261 (Alaska 1999) (“…‘no pat formula’ exists for distinguishing between active and passive efforts.”).

[7] “Guidelines for State Courts; Indian Child Custody Proceedings” published by the federal Department of the Interior, Bureau of Indian Affairs. 44 Fed. Reg. 67584 (Nov. 26, 1979).

[8] See, e.g., California Welfare & Institutions Code §361.7, Oregon Juvenile Code ORS 419B.090, and the Oklahoma Indian Child Welfare Act.

[9] California, Michigan, Minnesota, Montana, New Mexico, Oklahoma, Oregon, Washington, and Wisconsin (to name a few) have developed documents regarding implementation of ICWA.

[10] In re A.N., 325 Mont. 379, 384, 106 P.3d 556, 560 (Montana 2005)("The term active efforts, by definition, implies heightened responsibility compared to passive efforts."); A.M. v. State, 945 P.2d 296 (Alaska 1997)("passive efforts entail merely drawing up a reunification plan and requiring the 'client' to use 'his or her own resources to . . . bring . . . it to fruition.'").

[11] H.R. Report, supra note 2.

[12] Wilson W. v. State, 185 P.3d 94, 101 (Alaska 2008).

[13] N.A. v. State, 19 P.3d 597 (Alaska 2001).

[14] “Indian Child Welfare Case Management,” State of Michigan Department of Human Services, Native American Affairs 205 (3/1/2010)

[15] “Active Efforts Principles and Expectations,” Oregon Tribes and Citizen Review Board Judicial Department and Department of Human Services (Revised 2002).

[16] The “Guidelines for State Courts; Indian Child Custody Proceedings,” published by the federal Department of the Interior, Bureau of Indian Affairs. 44 Fed. Reg. 67584 (Nov. 26, 1979).

[17] “Active Efforts Principles and Expectations,” Oregon Tribes and Citizen Review Board Judicial Department and Department of Human Services (Revised 2002). See Adoption and Safe Families Act of 1997: Issues for Tribes and States Serving Indian Children (National Resource Center for Organizational Improvement, Edmund S. Muskie School of Public Service, University of Southern Maine 1999).

[18] While the Alaska Supreme Court has concluded that active efforts are unnecessary in cases where there are aggravated circumstances, this view does not reflect the prevailing view in the majority of jurisdictions.

[19] Letitia V. v Superior Court, 81 CA4th 1009 (Ca. App. 2000)(court need not undertake idle acts to prevent breakup of family); In re William G., 89 CA4th 423 (Ca. Ct. App. 2001)(parent who repeatedly refused reunification services and failed to appear in proceedings was not entitled to reunification services once he appeared).

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