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Michigan Supreme Court Lansing, Michigan

Opinion
In re JL, Minor. ____________________________________ DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee, v CHERYL LYNN LEE, Respondent-Appellant, and SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS, Intervening RespondentAppellee.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 14, 2009

No. 137653

BEFORE THE ENTIRE BENCH CORRIGAN, J. Respondent Cheryl Lee challenges the judgment of the Court of Appeals affirming the termination of her parental rights to her son, JL. In re Lee,

unpublished opinion per curiam of the Court of Appeals, issued October 16, 2008 (Docket No. 283038). Respondent specifically claims error in the interpretation and application of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.

She urges us to adopt the interpretation of the ICWA offered by the dissenting Court of Appeals judge. We affirm the judgment of the Court of Appeals because petitioner the Department of Human Services (DHS), provided timely, affirmative efforts that satisfied the ICWA's "active efforts" requirement, 25 USC 1912(d). We hold that the ICWA requires the DHS to undertake a thorough, contemporaneous assessment of the services provided to the parent in the past and the parent's response to those services before seeking to terminate parental rights without having offered additional services. The ICWA does not, however,

categorically require the DHS to provide services each time a new termination proceeding is commenced against a parent. We further reject respondent's claim that the lower courts applied a conclusive presumption of unfitness based on her past conduct in determining that respondent's continued custody was "likely to result in serious emotional or physical damage to the child." 25 USC 1912(f). Finally, we conclude that this determination was supported by evidence beyond a reasonable doubt, as required by 25 USC 1912(f). I. Basic Facts and Procedural History Respondent and her son, JL, are both members of the Sault Ste. Marie Tribe of Chippewa Indians. Between 1999 and 2006, respondent gave birth to four children: JL, SD, JD, and BP. JL is the oldest child. Respondent's parental rights to SD, JD, and BP were terminated in earlier proceedings that are not at issue here. JL was born in 1999, when respondent was 16 years old and living in foster care. DHS Child Protective Services (CPS) worker Regina Frazier began working 2

with respondent in 1998, even before respondent had children. Respondent was then both a delinquent and a victim of abuse and neglect. Respondent displayed abusive and neglectful behavior after JL's birth, so he was removed from respondent's care in September 2000. Frazier provided wraparound services1 until respondent moved to Sault Ste. Marie. The Sault Ste. Marie Tribe of Chippewa Indians Tribal Court assumed jurisdiction over the case in March 2002. The tribal court released JL from its jurisdiction in August 2002, when he was placed in a limited guardianship with his paternal grandmother, Lois Plank. respondent gave birth to a daughter, SD, on November 24, 2001. Anishinabek Community Family Services caseworker Penny Clark began working with respondent in 2002, when she was 18 years old and living on a reservation. Clark, who was respondent's wraparound coordinator, and several others attempted to help respondent care for SD, who was then a few months old. Clark also worked with respondent on budgeting and helped her obtain social security benefits. Although Clark enjoyed working with respondent, Clark Meanwhile,

testified that respondent could be moody and impulsive and that her impulsiveness led to trouble. Under the Family Continuity Program, Clark visited respondent in her home at least once a week. Respondent's home was often messy and unsafe; glass and cigarette butts were left within SD's reach. Clark also had concerns

Frazier testified that the wraparound program works with families who receive services from multiple agencies to coordinate those services.

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about respondent's ability to care for herself. At times, respondent was depressed; she failed to eat and take prenatal vitamins. JL was returned to respondent's care in September 2003. Her third child, JD, was born on January 11, 2004, while Clark was still working with respondent. When Jill Thompson, a caseworker with the Binogii Placement Agency, began working with respondent in July 2004, three children--JL, SD, and JD--lived with respondent and Justin DuFresne, the father of SD and JD. Respondent and DuFresne failed to supervise the children; instead, JL, then five years old, was supervising his younger siblings. SD wandered into the road multiple times. Caseworkers Thompson and Clark tried to remedy this problem. Clark even installed latches on the front door so that the children could not run out. The condition of the home "ran the gamut from poor housekeeping to filthy." Like Clark, Thompson described cigarette butts on the floor and the presence of choking hazards to young children. Respondent could not manage her finances and never sought employment. A "payee" managed respondent's finances by paying her bills with the money from respondent's social security disability payments and then giving respondent a $50 weekly allowance. Respondent purchased rent-to-own furniture that cost $30 or $35 a week. She could not afford diapers and other necessary items. Despite the extensive efforts of Thompson and Clark, the children were removed from respondent's home in 2004. At that time, JL again became a ward of the tribal court and was again placed with his grandmother, Lois Plank. In 4

November 2004, the trial court awarded JL's father, Tony Plank, full physical custody of JL and awarded respondent and Tony Plank shared legal custody. The court also granted respondent unsupervised visitation rights. After SD and JD were returned to respondent's care, Thompson and Clark provided services in an effort to keep them in her home, but they were observed in the street at night and were again removed in August 2005. When Clark closed respondent's case in 2005, she had provided all the services she could offer "without staying there 24/7." She opined that respondent had not made significant improvement. Clark participated in the termination trial involving SD and JD that was initiated because respondent had failed to supervise them. The tribal court terminated respondent's parental rights to SD and JD on June 30, 2006.2 Respondent gave birth to another child, BP, on July 20, 2006.3 BP was removed from respondent's care shortly after her birth. Melissa

VanLuven, who was the child placement services supervisor for the Sault Ste. Marie tribe and the caseworker supervisor of Thompson and Clark, participated in Respondent appealed the tribal court's termination order. The order was vacated on January 9, 2009, by the Sault Ste. Marie Tribe of Chippewa Indians Appellate Court. That court found that the lower court erroneously considered all the allegations against both respondent and the children's father, Justin DuFresne, when deciding to terminate respondent's parental rights, even though the two were estranged at the time of the termination proceedings. The matter was remanded for the lower court to "take such proofs as it deems appropriate as to the fitness of [respondent] alone . . . and determine what further order, if any, should be entered with regard to the parental rights of [respondent]." The parties have provided no documentation of the tribal court's disposition of the matter on remand. Michael Plank, respondent's current partner and Tony Plank's brother, is BP's biological father.
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the decision to petition for termination of respondent's parental rights to BP. That decision was based on an assessment of the tribe and the caseworkers that, despite the provision of services, respondent's children could not safely live in her home. The tribal court terminated respondent's parental rights to BP on January 8, 2007. In spring 2007, the trial court granted respondent's motion for parenting time, allowing her weekly unsupervised visitation with JL. In July 2007, however, the DHS petitioned to terminate respondent's parental rights to JL on the basis of respondent's "children's protective service history" beginning on September 12, 2000, specifically citing the termination of her parental rights to SD, JD, and BP.4 The DHS filed a supplemental petition on August 20, 2007, alleging that proceedings to terminate Michael Plank's parental rights to BP were pending. The supplemental petition also alleged that Michael Plank had a history of physically abusing and neglecting two other children. In addition, the petition provided:
4

Both the initial and supplemental termination petitions cited MCL 722.638(1)(b)(i), which provides: (1) The department shall submit a petition for authorization by the court under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the following apply: *** (b) The department determines that there is risk of harm to the child and either of the following is true: (i) The parent's rights to another child were terminated as a result of proceedings under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, or a similar law of another state.

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8. Cultuarlly [sic] appropriate services were provided to [respondent] for over six years, including Prevention, CPS, and Wraparound Services through Mackinac County; Protective Services, foster case services, and prevention through the [Sault Ste. Marie] Tribe, CPS services through Chippewa County DHS and CPS services through the Children's Aid in Canada. [Respondent] has also participated in the Families First Program three times, Wraparound and Family Continuity through the [Sault Ste. Marie] Tribe, Parenting Classes twice with [Sault Ste. Marie] Tribe, once through [the Strong Families/Safe Children Program], and once through the Indian Outreach Program. Although these services were offered and somewhat complied with at times, [respondent] continued to abuse and neglect her children, which led to her rights being terminated. 9. According to [respondent], she receives Social Security Disability due to having fetal alcohol syndrome. According to the National Organization of Fetal Alcohol Syndrome, the majority of persons with FAS have life-long difficulties with learning, attention, memory, and problem solving. The supplemental petition also cited the criminal histories of respondent and Michael Plank, including respondent's 2005 and 2006 misdemeanor convictions for operating a motor vehicle while impaired and an aggravated assault conviction stemming "from a 2005 bar incident," as well as Michael Plank's August 2000 guilty plea to felony assault charges. The petition also observed that Tony Plank had been convicted of third-degree criminal sexual conduct and incarcerated.5 Respondent denied the allegations in the petition. At trial, caseworkers Frazier, Clark, and Thompson described the extensive services they and their agencies provided to respondent from 1999 to 2005. They
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The trial court terminated Tony Plank's parental rights to JL on May 13,

2008.

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testified that, despite these services, respondent failed to become an adequate parent. On the basis of her experience with respondent, Clark did not believe that respondent could appropriately care for JL full-time. She opined that termination of respondent's parental rights was in JL's best interests. Testifying as an Indian expert under 25 USC 1912(f),6 VanLuven stated that she was satisfied that active and reasonable efforts had been provided to prevent the termination of respondent's parental rights and that respondent's custody of JL would result in serious emotional or physical damage to him. Respondent testified that she lived in "a cozy little log house" with Michael Plank and that she had recently completed substance abuse counseling. She had also voluntarily attended and completed parenting classes offered by the tribe. In her view, she had learned from the parenting classes how to "safely raise a child in today's society." She also testified that she visited JL as much as possible, at least twice weekly, and celebrated holidays with him. She testified that Michael Plank and JL had a good relationship and that they hunted, fished, and played together. Respondent denied that Michael Plank had ever been violent with her or JL. She
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25 USC 1912(f) provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

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acknowledged, however, that Michael Plank had been convicted of assault after the mother of his other children accused him of being violent. Respondent offered to do whatever was necessary to continue her relationship with JL. She was concerned that if her parental rights were terminated she would have to "suck up to Lois [Plank] forever in order to stay in [JL]'s life." On cross-examination, respondent admitted that she had not worked or sought work in four years. She received social security benefits because she had been diagnosed with fetal alcohol syndrome. "They" believe she had a disability and was incapable of working. Although she acknowledged a possible learning disability, she believed herself capable of working. Respondent acknowledged her convictions of operating a motor vehicle while impaired and aggravated assault. Eight-year-old JL testified that he liked spending time with respondent and that it was "just the usual," explaining that it was "kind of like when I'm with my Grandma, except being with a different person." He loved and missed respondent and said he would like to spend more time with her, but also said that it was difficult to answer whether he would like to live with her because he liked living with his grandmother. He also liked spending time with Michael Plank and had no fear of him. Addictions therapist Gary Matheny had counseled respondent weekly for about eight months. Respondent was now "clean and sober." He and respondent had discussed parenting skills, including the need for proper structure in the household and the need to avoid drinking, drugs, and fighting. Respondent's 9

inability to get along with her "significant others" had caused many problems. Respondent had been raised in an alcoholic family, had been taken from home as a child, and had early unhealthy relationships as well as an early pregnancy. Matheny believed, however, that she had "[v]astly" overcome those background influences. He saw no symptoms of fetal alcohol syndrome in respondent, but believed she possibly suffered symptoms of "[f]etal [a]lcohol [a]ffects [sic]."7 The trial court terminated respondent's parental rights to JL. It found that the DHS had established grounds for termination under MCL 712A.19b(3)(i)8 by
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According to the National Organization on Fetal Alcohol Syndrome, fetal alcohol syndrome (FAS) "is a set of physical and mental birth defects that can result when a woman drinks alcohol during her pregnancy." It "is characterized by brain damage, facial deformities, and growth deficits. Heart, liver, and kidney defects also are common, as well as vision and hearing problems. Individuals with FAS have difficulties with learning, attention, memory, and problem solving." "Fetal Alcohol Spectrum Disorders (FASD) is an umbrella term describing the range of effects that can occur in an individual whose mother drank alcohol during pregnancy. These effects may include physical, mental, behavioral, and/or learning disabilities with possible lifelong implications." FASD encompasses the term "fetal alcohol effects," which "has been popularly used to describe alcoholexposed individuals whose condition does not meet the full criteria for an FAS diagnosis." National Organization on Fetal Alcohol Syndrome, FAQs <http://www.nofas.org/faqs.aspx?id=9> (accessed June 30, 2009).
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MCL 712A.19b(3)(i) provides:

The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following: *** (i) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.

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clear and convincing evidence by presenting opinions and orders of the Sault Ste. Marie Tribe of Chippewa Indians Tribal Court terminating respondent's parental rights to JL's siblings. The court noted that termination in those cases was based on sections of the tribal code "virtually identical" to MCL 712A.19b(3)(c)(i) and (ii) and (g).9 It further noted that those opinions "discussed the services that had been provided and the apparent lack of any benefit gained by Respondent from those services." Next, the trial court found insufficient evidence to conclude that
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MCL 712A.19(3) provides, in relevant part:

The court may terminate a parent's parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following: *** (c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following: (i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age. (ii) Other conditions exist that cause the child to come within the court's jurisdiction, the parent has received recommendations to rectify those conditions, the conditions have not been rectified by the parent after the parent has received notice and a hearing and has been given a reasonable opportunity to rectify the conditions, and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age. *** (g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.

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termination was not in the best interests of the child. MCR 3.977(F). Finally, the court concluded that the requirements of MCR 3.980(D)10 had been met. The court summarized its reasoning as follows: This finding is based on: 1) the previous services and lack of benefit from same which raises the likelihood of some form of serious physical injury; 2) the length of time the child has been residing outside the Respondent's home and the emotional damage that would result in requiring a reunification plan; 3) the testimony presented that Respondent's lack of benefit was not due to Respondent's lack of maturity, but rather lack of ability; and 4) Respondent's most recent conduct of operating a motor vehicle while impaired due to alcohol.[11]

Respondent appealed, and the Court of Appeals affirmed.

A majority

concluded that the trial court did not clearly err when it determined that (1) the statutory ground for termination in MCL 712A.19b(3)(i) had been established by clear and convincing evidence, (2) termination was not clearly contrary to JL's best interests, (3) efforts had been made to provide services designed to prevent the breakup of respondent's family, and (4) the DHS had proved beyond a

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MCR 3.980(D) contains language similar to that of 25 USC 1912(f) and

provides: Termination of Parental Rights. In addition to the required findings under MCR 3.977, the parental rights of a parent of an Indian child must not be terminated unless there is also evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that parental rights should be terminated because continued custody of the child by the parent or Indian custodian will likely result in serious emotional or physical damage to the child. The trial court did not specifically address the ICWA's "active efforts" requirement, 25 USC 1912(d).
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reasonable doubt that respondent's continued custody was likely to result in serious emotional or physical damage to JL, 25 USC 1912(f). The appeals panel unanimously agreed that the trial court properly denied respondent's request for a jury trial. Lee, supra, slip op at 5-10. Judge Gleicher dissented from the majority's conclusions that the DHS had satisfied the "active efforts" requirement of the ICWA, 25 USC 1912(d), and that the record established beyond a reasonable doubt that respondent's continued custody was "likely to result in serious emotional or physical damage to the child," 25 USC 1912(f). Lee, supra, slip op at 4-11 (Gleicher, J., concurring in part and dissenting in part.) We granted respondent's application for leave to appeal to consider the proper interpretation of 25 USC 1912(d) and (f) of the ICWA.12 II. The Indian Child Welfare Act Congress enacted the ICWA in 1978 in response to rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian
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We directed the parties to address

(1) whether the term "active efforts" in 25 USC 1912(d) requires a showing that there have been recent rehabilitative efforts designed to prevent the breakup of that particular Indian family; and (2) whether the "beyond a reasonable doubt" standard of 25 USC 1912(f) requires contemporaneous evidence that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child before parental rights may be terminated. [In re Lee, 482 Mich 1116, 1116-1117 (2008) (emphasis omitted).]

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children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. [Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 32; 109 S Ct 1597; 104 L Ed 2d 29 (1989).] "Recognizing the special relationship between the United States and the Indian tribes and their members and the responsibility to Indian People," Congress found: (3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe; (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. [25 USC 1901.] Accordingly, it enacted the ICWA to establish "minimum Federal standards for the removal of Indian children from their families . . . ." 25 USC 1902. The ICWA sets forth requirements with which states must comply when an "Indian child," as defined in the act, 25 USC 1903(4), is involved in a "child custody proceeding," which includes a proceeding to terminate parental rights, 25 USC 1903(1)(ii). If state or federal law "provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child" than the ICWA, the court must apply that higher state or federal standard. 25 USC 1921.

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25 USC 1912 provides, in part: (d) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court 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 have proved unsuccessful. *** (f) No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. III. The Adoption and Safe Families Act and MCL 712A.19b(3)(i) The Adoption and Safe Families Act of 1997 (ASFA), PL 105-89, 111 Stat 2115, requires that states undertake "reasonable efforts" to "preserve and reunify families" as a condition of federal funding. 42 USC 671(a)(15)(B). The ASFA excuses proof of reasonable efforts to reunify when "the parental rights of the parent to a sibling have been terminated involuntarily[.]" 42 USC

671(a)(15)(D)(iii). MCL 712A.19a(2)(c) codifies both the "reasonable efforts" requirement and the exception to that requirement when a prior termination has taken place. Additionally, MCL 712A.19b(3)(i), which was the state law basis for the termination of respondent's parental rights here, makes involuntary termination of parental rights to a child's sibling a ground for termination. Because the ICWA establishes "minimum Federal standards for the removal of Indian children from their families," 25 USC 1902, and nothing in the

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ASFA indicates a congressional intent to supersede the ICWA, neither the ASFA nor its state law analogues relieve the DHS from the ICWA's "active efforts" requirement, 25 USC 1912(d), or from the burden of establishing beyond a reasonable doubt "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child," 25 USC 1912(f). IV. Standard of Review This Court reviews issues involving the application and interpretation of the ICWA de novo as questions of law. In re Fried, 266 Mich App 535, 538; 702 NW2d 192 (2005). Under 25 USC 1912(f), "[n]o termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Because Congress did not provide a heightened standard of proof in 25 USC 1912(d), as it did in 25 USC 1912(f), the default standard of proof for termination of parental rights cases, clear and convincing evidence, applies to the determination whether the DHS provided "active efforts . . . to prevent the breakup of the Indian family" under 25 USC 1912(d). In re Roe, 281 Mich App 88, 100-101; 764 NW2d 789 (2008).13

Although our research disclosed no federal authority on this point, several of our sister states have employed similar reasoning. See, e.g., In re Walter W, 274 Neb 859, 864-865; 744 NW2d 55 (2008); In re MS, 624 NW2d 678

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V. "Active Efforts" The ICWA requires the petitioner in a termination case to "satisfy the court that active efforts have been made to prevent the breakup of the Indian family . . . ." 25 USC 1912(d). Respondent argues that because the DHS failed to provide current active efforts, termination of her parental rights to JL violated the ICWA. We disagree. A. Court of Appeals Respondent urges us to adopt Judge Gleicher's dissenting view in Roe14 and Lee that both the plain and ordinary meaning of "active" and the purpose and object of the ICWA point to a temporal requirement: "In my view, Congress's use of the term "active efforts" signals its intent that petitioner clearly and convincingly demonstrate the provision of current rehabilitative efforts designed to reunite an Indian parent with the particular child that is the target of the termination proceedings." Lee, supra, slip op at 6 (Gleicher, J., concurring in part and

dissenting in part) (emphasis in original). Judge Gleicher concluded that, in light of the purposes of the ICWA and its requirement that the "state prove beyond a

(ND, 2001); In re Michael G, 63 Cal App 4th 700, 709-712; 74 Cal Rptr 2d 642 (1998). In Roe, the same Court of Appeals panel considered the proper interpretation of the "active efforts" requirement of 25 USC 1912(d). There, as here, Judges Markey and Whitbeck disagreed with Judge Gleicher about the meaning of "active efforts." In Roe, however, the Court of Appeals judgment vacated the trial court's order and remanded the case for trial court findings regarding the "active efforts" requirement. Roe, supra at 91.
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reasonable doubt that `the continued custody' of the Indian child by the parent `is likely to result in serious emotional or physical damage to the child,'" "active efforts" includes a temporal component. Id., quoting 25 USC 1912(f) (emphasis omitted). The Court of Appeals majority in this case relied on its more extensive opinion in Roe. There it acknowledged that "`active' may be `characterized by current activity, participation or use,'" Roe, supra at 102, quoting Random House Webster's College Dictionary (1997), but agreed with "the majority of jurisdictions that have addressed this issue" that concurrent "active efforts" need not necessarily be shown in each proceeding, Roe, supra at 102. The majority concluded that, "[c]onstrued in context, [25 USC 1912(d)] only requires `that timely and affirmative steps be taken . . . to avoid the breakup of Indian families whenever possible by providing services designed to remedy the problems which might lead to the severance of the parent-child relationship.'" Id. at 106 (citation omitted). Services provided in connection with a prior proceeding, or "`formal or informal efforts to remedy a parent's deficiencies before dependency proceedings begin'" may meet the "active efforts" requirement. Id., quoting In re KD, 155 P3d 634, 637 (Colo App, 2007). The Court of Appeals majority thus "decline[d] to employ a definition of `active' that stresses a temporal requirement." Roe, supra at 106. Instead, it defined "active efforts" as the opposite of "passive efforts." Id. at 106-107. Finally, it "note[d] that the majority of jurisdictions interpret `active efforts' as imposing a higher burden than various states' `reasonable efforts' 18

requirement, and that numerous courts have required that the service provider `provide culturally relevant remedial and rehabilitative services to prevent the breakup of the family.'" Id. at 108 (citations omitted). B. Analysis We agree with the Roe majority that the crux of the "active efforts" requirement is undertaking affirmative, as opposed to passive, efforts: "Passive efforts are where a plan is drawn up and the client must develop his or her own resources toward bringing it to fruition. Active efforts, the intent of the drafters of the Act, is where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own. For instance, rather than requiring that a client find a job, acquire new housing, and terminate a relationship with what is perceived to be a boyfriend who is a bad influence, the Indian Child Welfare Act would require that the caseworker help the client develop job and parenting skills necessary to retain custody of her child." [Id. at 107, quoting AA v Alaska Dep't of Family & Youth Services, 982 P2d 256, 261 (Alas, 1999).]

We also agree that "active efforts" require more than the "reasonable efforts" required under state law. Roe, supra at 108, citing In re Nicole B, 175 Md App 450, 471; 927 A2d 1194 (2007), Winston J v Alaska Dep't of Health & Social Services, 134 P3d 343, 347 n 18 (Alas, 2006), MW v Alaska Dep't of Health & Social Services, 20 P3d 1141, 1146 n 18 (Alas, 2001), In re Walter W, 274 Neb 859, 865; 744 NW2d 55 (2008), and In re JS, 177 P3d 590, 593 (Okla Civ App, 2008). The version of the DHS's Childrens Foster Care Manual in effect at the time of the termination trial provides an example of this distinction: 19

ICWA requires that anytime the DHS is involved with Indian children and their families, culturally Active Efforts must be provided. "Reasonable Efforts" as defined in other parts of current DHS policy are not sufficient. *** Active Efforts require that the caseworker take a more proactive approach with clients and actively support the client in complying with the service plan rather than requiring the service plan be performed by the client alone. Following are examples of appropriate Active Efforts that could serve as a starting point of reference; in collaboration with the child's Tribe: a. Taking clients to initial appointments and assisting with the intake process OR b. Transporting client, arranging transportation and child care appointments OR c. If the client is isolated from other family members who may be in a position to provide positive support, the worker is to provide help to the families to begin conversations with those family members. d. Assisting with completing applications. e. Providing phone availability. * ** DHS is to make culturally active and appropriate efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family before any consideration for removal can be made. DHS policy requires Active Efforts prior to court involvement. Active Efforts must be documented to the court and Tribe. [Childrens Foster Care Manual, Indian Child Welfare (June 1, 2007), pp 5-6.][15] Although included in respondent's appendix, this version of the manual is no longer in effect and is not available online. The parties also did not provide the version of the manual in effect before June 1, 2007. The current version of the
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In addition, the Bureau of Indian Affairs' guidelines explain that [t]hese [active] efforts shall take into account the prevailing social and cultural conditions and way of life of the Indian child's tribe. DHS's Native American Affairs manual, Native American Affairs Glossary (October 1, 2008), pp 1-2, available at <http://www.mfia.state.mi.us/olmweb/ex/nag/glossary.pdf> (accessed June 30, 2009), provides a similar explanation: By definition, active efforts are more intensive than "reasonable efforts" and require the worker to thoroughly assist the family in accessing and participating in necessary services that are culturally appropriate and remedial and rehabilitative in nature. Example: Reasonable efforts might be the worker making a referral for services and attempts to engage the family in services, but active efforts might be the worker consulting with the tribe regarding case planning, making a referral to services, attempts to engage the family in services and providing transportation to the services. *** Examples of active efforts include (but are not limited to):

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