SUMMARY: The active efforts standard in ICWA and NICWA applies 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.
In May 2013, David H.’s three minor children were adjudicated because they lacked proper parental care by reason of the fault or habits of their custodian, David’s girlfriend. All three children are Indian children within the meaning of the Indian Child Welfare Act and the Nebraska Indian Child Welfare Act. At the first dispositional hearing, the juvenile court determined that reasonable efforts had been made to return legal custody to David but that it remained in the children’s best interests for David to only have physical custody and for DHHS to retain legal custody. David appealed the disposition, arguing that the juvenile court should have applied the heightened standard of “active efforts” under ICWA/NICWA. The Court of Appeals held the juvenile court erred in not addressing whether active efforts had been made to return legal custody of the children to David.
The Nebraska Supreme Court affirmed the Court of Appeals’ decision. The Nebraska Supreme Court first determined that the public interest exception to the mootness doctrine applied, so the Court was able to reach the merits of the issue presented. The Supreme Court then noted that the active efforts standard in both ICWA and NICWA is required wherever the State is seeking to effect a foster care placement. Courts in California, Oregon, and Iowa have all held that any involuntary juvenile proceeding addressing whether a child is in need of assistance due to parental unfitness could result in a foster care placement. It is thus most consistent with the underlying purposes of ICWA to characterize any such juvenile proceeding as one that is seeking to effect a foster care placement. Therefore, at any point in an involuntary juvenile proceeding involving Indian children at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard of ICWA/NICWA applies in place of the reasonable efforts standard applicable in cases involved non-Indian children.