![]() Justice Montoya-Lewis does it again, soundly rejecting the futility doctrine when it comes to providing active efforts to parents, and providing a treatise on what active efforts are and why ICWA requires them. The Court’s recognition of this is a welcome change from most child welfare decisions. ![]() Mom did a ton of work on her own in this case despite and in spite of the state’s inaction. So, in addition to not appointing the child an attorney despite state law requiring it, the Court also says “Second, although not raised as an issue on appeal, there are glaring defects involving ICWA mandates in the underlying proceeding that we cannot ignore.” The QEW testimony did not satisfy the evidentiary burden, and the court found that termination was not the least restrictive alternative given the child’s best interests. That’s all the South Dakota Supreme Court.Īlso, anyone else get excited when a Court starts a paragraph like this: “Because this error requires a remand, we take this opportunity to address additional errors that occurred below to prevent their reoccurrence.”? _insert eating popcorn emoji_ ![]() Unusually, I didn’t add any of the italics. To the extent this finding suggests that DSS’s efforts were ongoing up to the point of the dispositional hearing, it is clearly erroneous.” with Mother” then, “he circuit court’s finding of fact to the contrary-that DSS ‘has been providing active efforts to this family since Octoincluding in-home services to prevent placement, and ongoing services to allow safe return of the child to no avail’-is not supported by the record. This means that from December 2019 to September 2020 no efforts were made by DSS to provide Mother remedial services or rehabilitative programs and no efforts were made to reunite C.H. In a shocking development it turns out that if an agency “ceased providing any efforts toward reunification after the December 2019 hearing. South Dakota is sending us into the weekend with a positive attitude with this decision. In many states the 1912 findings happen either at adjudication or even after that, at the disposition hearing. Interim shelter care hearings often happen before a jurisdictional/adjudication hearing, and can sometimes (often) extend the time before adjudication hearing happens. The section question is essentially asking if the emergency standard of 1922 should apply whenever a child is placed out of the home and there is no 1912 (active efforts, QEW) findings. Second, whether the trial court was required to make a formal finding at the interim shelter care hearing that continued placement out of the home was necessary to prevent imminent physical damage or harm to the child. Here are the two questions the Court sought to answer:įirst, whether the department is required to make active efforts to keep an Indian child with their family under such circumstances as presented here. This opinion is trying to find some clarity in what ICWA standards apply when. We remand to the trial court for further proceedings consistent with this opinion. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. Consistent with the plain text and purpose of WICWA, we conclude that it did. We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Catching up on posting the summer’s reported ICWA cases, so I’m starting with this Washington Supreme Court opinion on active efforts for the initial or shelter care hear.
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