Child Advocacy: ICWA: What are “active efforts”?

In 1978, Congress enacted The Indian Child Welfare Act (25 U.S.C. §§1901 et. seq.) to address policies which had resulted in decades of abuse of Native American children; state and private agencies were removing as many as 25 – 35% of Indian children from their families and placing many of these children in non-Indian foster and adoptive homes.

The stated purpose of ICWA is “… to protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture…”  25 U.S.C. §1902.

ICWA applies to any state child custody proceeding involving any child, under the age of 18, who is a member of a tribe or who is eligible for membership in a tribe and is the biological child of a member of a tribe.  25 U.S.C. §1903 (4).

ICWA requires that tribal government agencies receive prompt notice of involuntary removal proceedings to allow them to exercise their jurisdiction and other rights and help identify preferred placements.  25 U.S.C. §1912.

A tribe may decline jurisdiction, or a parent may object to tribal jurisdiction, and the case will proceed in state court, but the provisions of ICWA will still apply.  25 U.S.C. §1911.

One significant requirement of ICWA is the “active efforts” requirement.

Under ICWA, a Native American child may not be placed in foster care unless the local department can satisfy through clear and convincing evidence that “active efforts” were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Native American family and that such efforts were unsuccessful.  25 U.S.C. 1912 (d).

Although no federally recognized Native American tribes originating in Maryland still exist, there are Native people, who reside in Maryland; as of the 2010 Census, nearly 60,000 people living in Maryland identified themselves as either Native American or part Native American, which represents an 48.7% increase from the 2000 census.

Maryland has specifically adopted ICWA in its regulations pertaining to placement of a child in a pre-adoptive foster care home.  (COMAR 07.02.11.16 G. (3)(b).

In its policy guidelines, the Department of Human Resources, Social Services Administration defines “active efforts” to mean not just an identification of the problem or solutions, but a concrete efforts showing active attempts to provide services intended to resolve the conditions prior to removal. (Department of Human Resources, SSA-CW #16-5, July 15, 2015, p. 5).

There is only one reported case in Maryland that addresses ICWA’s “active efforts” requirement:  In re Nicole B. (“Nicole B.”), 175 Md. App. 450, 472 (2007), cert. granted 410 Md. 33 (2009).

In Nicole B., a father appealed a change in the permanency plan for his two children from reunification to custody and guardianship with a paternal aunt, and the closing of the CINA case.

Although the father was not Native American, the mother was a registered member of the Yankton Sioux Tribe of South Dakota; the child’s Native American heritage triggered the application of ICWA and allowed the father to argue that the department had failed to make “active efforts” towards rehabilitation and reunification.

The Court of Special Appeals (now, the Maryland Appellate Court) held that “active efforts” required more than the “reasonable efforts” required under Maryland’s Juvenile Causes Act, vacated the closing of the CINA case, and remanded for further proceedings with specific instructions to evaluate whether “active efforts” had been made.

Certiorari was granted to address whether there was a difference between “active efforts” and “reasonable efforts”, but the Court of Appeals (now, the Maryland Supreme Court) did not address the question, instead finding the Department had made active efforts toward rehabilitation and reversing the judgment of the Court of Special Appeals.

At the time of Nicole B., there were no guidelines in place to assist the court in its interpretation of what constitutes “active efforts”; however, in February 2015, the Bureau of Indian Affairs updated its guidelines.  80 FR 10146 (Feb. 25, 2015).

These guidelines include 15 expressions of “active efforts”, including identifying appropriate services, actively assisting the parents in obtaining such services, searching for the Indian child’s extended family members, and accessing the Indian child’s prevailing social and cultural conditions and ways of life.  80 FR 10146 p. 10150 (Feb. 25, 2015).

As we celebrate Indigenous Peoples’ Day in October, CINA practitioners should be mindful of ICWA and the BIA guidelines, and zealously examine whether “active efforts” have been made to prevent the breakup of the family.

Tamala Lunn is a staff attorney at Maryland Legal Aid.