IN RE ASHTYN JASMIN ROE MINORAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ASHTYN JASMIN ROE, Minor.
DEPARTMENT OF HUMAN SERVICES,
September 25, 2008
Chippewa Circuit Court
LC No. 07-013621-NA
Advance Sheets Version
SAULT STE. MARIE TRIBE OF CHIPPEWA
Before: Markey, P.J., and Whitbeck and Gleicher, JJ.
In this case involving the termination of parental right to an Indian child, respondent
Theresa Finfrock appeals as of right the trial court order terminating her parental rights to her
daughter Ashtyn Jasmin Roe. The trial court terminated Finfrock’s rights after finding that her
rights to another child had been terminated because of physical abuse and that prior attempts to
rehabilitate her had been unsuccessful.1 As the Indian Child Welfare Act (the ICWA) requires,2
the trial court further found that continued custody by Finfrock was likely to result in serious
emotional or physical damage to the child.3 On appeal, Finfrock argues that the trial court erred
by failing to require petitioner Department of Human Services (the Department) to prove that it
25 USC 1901 et seq.
See 25 USC 1912(f).
made “active efforts” to provide the remedial services and rehabilitative programs that the ICWA
required.4 Finfrock further argues that the trial court clearly erred when it found that Finfrock’s
continued custody was likely to result in serious emotional or physical damage to the child. We
conclude that the ICWA requires the trial court to make findings regarding whether the
Department made active efforts to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and regarding whether those efforts proved
unsuccessful. Because the trial court did not make these findings, we vacate its order
terminating Finfrock’s parental rights and remand the case for further proceedings consistent
with this opinion.
I. Basic Facts and Procedural History
Ashtyn Roe was born to Finfrock and Samuel Roe in October 2007. Ashtyn Roe was
Finfrock’s third child. Finfrock’s first child, Daniel Finfrock, was born in April 1997.
Finfrock’s second child, Aliyah Bertrand, was born in August 2000.
Daniel Finfrock had several developmental handicaps and required considerable care. In
January 2005, he died from intracranial trauma. Finfrock and her then-boyfriend, Steven
Perrault, were Daniel Finfrock’s only caregivers on the day that he sustained his injuries. Daniel
Finfrock’s death was later ruled a homicide.
After Daniel Finfrock’s death, the Department sought the termination of Finfrock’s
parental rights to Aliyah Bertrand. And in July 2005, a tribal court terminated Finfrock’s rights
to Aliyah Bertrand after Finfrock failed to comply with her service plan.
Shortly after Ashtyn Roe’s birth, the Department petitioned the Chippewa Circuit Court,
Family Division, to terminate Finfrock’s parental rights to this child. In the petition, the
Department alleged that Daniel Finfrock died from intracranial trauma that was later ruled a
homicide. It further alleged that Finfrock and Perrault told tribal police and the FBI that they
were the only caregivers for Daniel Finfrock on the day he was injured. The petition noted that
the criminal investigation into Daniel Finfrock’s death remained unresolved. The petition also
alleged that Finfrock’s parental rights to Aliyah Bertrand had been terminated in July 2005 and
that Finfrock had failed to comply with the service plan put in place for her at that time. Finally,
the petition alleged that Samuel Roe was convicted of attempted fourth-degree criminal sexual
conduct with a 14-year-old in 1996 and that he and Finfrock still resided together. On the basis
of these allegations, the Department asked the trial court to terminate Finfrock’s parental rights
to Ashtyn Roe under MCL 712A.19b(3)(i). At a December 2007 hearing, Finfrock admitted
these allegations and agreed to the trial court’s jurisdiction.
The trial court held a termination trial in January 2008. At the trial, Robyn Hill, who was
the foster care worker assigned to Finfrock’s case in 2005, testified that the tribal court had
terminated Finfrock’s parental rights to her older daughter, Aliyah Bertrand. Hill also testified
about her work with Finfrock. Hill noted that Finfrock had a history of choosing relationships
See 25 USC 1912(d).
with men that had histories of domestic violence. Hill expressed concern about Finfrock’s new
relationship with a man who had a criminal sexual conduct conviction.
David Babcock testified that he was a protective services worker for the Department. He
stated that he was concerned about Finfrock’s new relationship and by her recent conviction for
furnishing alcohol to a minor. Babcock indicated that Daniel Finfrock’s death was a serious
concern because Finfrock may have had a direct role in his death or, at the very least, contributed
to it through her relationship with a man that she knew was abusive. Babcock opined that
Finfrock’s newest relationship was another poor choice and reflected a continuing pattern of
behavior that placed her children at risk. Babcock testified that Finfrock minimized the risks
posed by her relationships. Babcock also expressed concern that, although she was able to
reiterate the things that were taught to her in her parenting and substance abuse classes, Finfrock
did not seem to be able to incorporate those concepts into her day-to-day living.
Lori Tomkinson, the foster worker assigned to this case, testified that Finfrock stated that
she did not really know why her parental rights to her older daughter were terminated, but later
admitted that she did not comply with the plan’s requirement that she leave Perrault. Tomkinson
stated that Finfrock also admitted that she left her handicapped son with a man who was abusive
Martha Snyder testified as an expert on Indian child law. She stated that Finfrock’s
conduct was definitely not within the parental norms of the tribal community. She testified that
Finfrock appeared to put her own needs first and that she doubted that Finfrock could ever place
her children’s needs ahead of her own. Snyder opined that, if returned to her mother, Ashtyn
Roe would be in danger of serious emotional, physical, and mental harm. She also indicated that
she believed that the Department had met the reasonable requirements to keep the family intact,
given Finfrock’s knowledge of or involvement in Daniel Finfrock’s death.
In addition to this testimony, there was testimony that established that Finfrock had
obtained some mental health services and had successfully participated in a drug court program.
Indeed, Finfrock’s therapist testified that Finfrock had been discharged from therapy and that she
had begun to realize that she did not need another person to make her whole. Further, Finfrock’s
mother testified that Finfrock had changed her lifestyle and that she was not making the same
choices that she used to make. She also stated that she knew Samuel Roe and that he did not
exhibit the controlling and violent behavior that Perrault did. Finally, Finfrock herself testified
about the changes she had made for herself. Finfrock stated that she had worked on the issues
that had plagued her in the past and that she would now live her life in a good way.
In February 2008, the trial court issued its opinion from the bench. The trial court found
that the provisions of MCL 712A.19b(3)(i) had been proved beyond a reasonable doubt, stating,
“There had been a case service plan. There had been a death of one child, neglect of the other,
and efforts to rehabilitate the [mother] were unsuccessful, resulting in termination . . . so that part
of the statute has been complied with beyond a reasonable doubt.” The trial court then turned to
the ICWA’s requirements. After summarizing the record evidence, the trial court concluded that
“the evidence establishes beyond a reasonable doubt . . . that the custody of this child by the
respondent mother is likely to result in serious emotional or physical damage to the child.” For
this reason, the trial court terminated Finfrock’s parental rights to Ashtyn Roe. Finfrock now
appeals as of right.
II. The ICWA
A. Standard of Review
Finfrock argues that the trial court erred when it terminated her parental rights to Ashtyn
Roe without requiring the Department to prove beyond a reasonable doubt that it made active
efforts to provide remedial services and rehabilitative programs designed to prevent the breakup
of her Indian family and that these efforts proved unsuccessful.5 More specifically, Finfrock
alleges three specific errors in this regard. First, she contends that the trial court failed to make
specific findings regarding whether active efforts were made and had proven unsuccessful before
it proceeded with the termination. Second, she argues that the efforts the Department provided
as part of a prior termination case will not satisfy the requirements of § 1912(d) of the ICWA.
Rather, she argues, the Department must provide new efforts for each case, which the
Department did not do in this case. Third, she argues that the evidence the Department presented
at trial was insufficient to prove beyond a reasonable doubt that the efforts the Department
actually provided were unsuccessful. Each of these errors, Finfrock contends, warrants reversal
of the trial court’s decision to terminate her parental rights.
This Court reviews for clear error a trial court’s decision terminating parental rights.6 “A
circuit court’s decision to terminate parental rights is clearly erroneous if, although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been made.”7 However, this Court reviews de novo questions of
law, such as the proper interpretation of the ICWA.8
B. The ICWA Requirements
Congress enacted the ICWA in response to evidence of abusive child welfare practices in
the states that resulted in the separation of large numbers of Indian children from their families
and tribes.9 The ICWA does not entirely displace the application of state child custody laws to
proceedings involving Indian children. But it does impose certain mandatory procedural and
substantive safeguards.10 Thus, although due process normally only requires that a state prove a
See 25 USC 1912(d).
MCR 3.977(J); In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).
In re Fried, 266 Mich App 535, 538; 702 NW2d 192 (2005).
25 USC 1901; Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 32; 109 S Ct
1597; 104 L Ed 2d 29 (1989).
Mississippi Band of Choctaw Indians, supra at 36; In re Elliott, 218 Mich App 196, 201; 554
NW2d 32 (1996).
ground for termination by clear and convincing evidence,11 under the ICWA, “[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.”12
Additionally, under the ICWA:
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
It is undisputed that the provisions of the ICWA apply to this case involving an Indian
parent and her child.14
C. The Trial Court’s Factual Findings on Active Efforts
As stated, under the plain language of § 1912(d) of the ICWA, the Department had the
burden of proving that “active efforts have been made” to prevent the breakup of Finfrock’s
family and “that these efforts have proved unsuccessful.” Further, because the Department must
“satisfy” the trial court that the active efforts were made and were unsuccessful in order “to
effect” the termination, the trial court had to find specifically that the Department had made
active efforts and that these efforts were unsuccessful before it could proceed with the
termination of Finfrock’s parental rights.15
Contrary to the contentions of the Department, the child’s guardian ad litem, and the
Sault Ste. Marie Tribe of Chippewa Indians (the Tribe), the trial court did not make the findings
required under § 1912(d) of the ICWA. The Department and the Tribe correctly note that the
trial court mentioned that there “had been a case service plan” and that “efforts to rehabilitate the
[mother] were unsuccessful.” But the trial court did not make these statements as part of
findings concerning the requirements of § 1912(d) of the ICWA. Rather, the trial court made
Santosky v Kramer, 455 US 745, 747-748; 102 S Ct 1388; 71 L Ed 2d 599 (1982).
25 USC 1912(f).
25 USC 1912(d) (emphasis added).
See 25 USC 1903.
In re SD, 236 Mich App 240, 244-245; 599 NW2d 772 (1999) (noting that active efforts are
normally required before termination of parental rights, but concluding that § 1912[d] did not
apply to the facts of the case because termination would not breakup an Indian family). See also
In re Walter W, 274 Neb 859, 862-863; 744 NW2d 55 (2008) (noting that, in addition to the state
elements required to terminate parental rights, the ICWA imposes two additional elements: the
active efforts element and the serious emotional or physical damage element); In re JS, 177 P3d
590, 591 (Okla Civ App, 2008) (noting that the active efforts requirement is a predicate finding
that the trial court must make before a termination case may proceed).
these remarks in the context of its finding that the Department had proved the statutory grounds
for termination under MCL 712A.19b(3)(i). Indeed, there is nothing in the trial court’s opinion
that even suggests that it was aware that it had to make findings under § 1912(d) of the ICWA.
Manifestly, therefore, the trial court failed to make the requisite findings under § 1912(d) of the
Because the trial court did not make the requisite findings under § 1912(d) of the ICWA,
it lacked the authority to proceed with the termination of Finfrock’s parental rights.16 Therefore,
we reverse the trial court’s decision to terminate Finfrock’s parental rights to Ashtyn Roe and
remand this case to the trial court for the necessary factual findings under § 1912(d) of the
Given our resolution of this issue, we decline to address Finfrock’s contention that the
trial court clearly erred when it found that her continued custody of Ashtyn Roe would likely
result in serious emotional or physical damage. On remand, the trial court will again have the
opportunity to consider the facts and make a finding concerning the likelihood of serious
emotional or physical damage.17 However, because the parties disagree about the nature of the
findings required by § 1912(d) of the ICWA and the proper burden of proof, and because those
disagreements are likely to reoccur on remand, we address the parties’ remaining arguments on
the proper application of § 1912(d) of the ICWA.
D. The Applicable Standard of Proof
The parties disagree about the standard of proof applicable to the trial court’s findings
under § 1912(d) of the ICWA. Finfrock contends that the requirements of § 1912(d) must be
proven beyond a reasonable doubt. In contrast, the Tribe and the child’s guardian ad litem
contend that the Department’s burden under § 1912(d) need only be proven by clear and
convincing evidence and that this Court’s previous applications of a beyond a reasonable doubt
standard were incorrect.18
We note that this Court, in In re Morgan, simply adopted the beyond a reasonable doubt
standard applied by the South Dakota Supreme Court in In re SR without actually analyzing
whether that was the proper standard.19 In that case, the South Dakota Supreme Court noted that
Congress did not specify a standard of proof for determinations made under § 1912(d) of the
ICWA.20 Nevertheless, without engaging in any analysis, the court stated that it “assume[d] that
the same burden required to prove serious emotional or physical harm under § 1912(f), beyond a
In re SD, supra at 244.
See 25 USC 1912(f).
See In re Kreft, 148 Mich App 682, 693; 384 NW2d 843 (1986); In re Morgan, 140 Mich App
594, 604; 364 NW2d 754 (1985).
In re Morgan, supra at 604, citing In re SR, 323 NW2d 885 (SD, 1982).
In re SR, supra at 887.
reasonable doubt, would also be required to prove active efforts by the party seeking
termination.”21 Other states, however, have rejected application of that standard.22 For example,
in In re Walter W, the Nebraska Supreme Court rejected application of a beyond a reasonable
doubt standard to determinations under § 1912(d), explaining:
Congress did not intend in 25 USC § 1912 to create a wholesale
substitution of state juvenile proceedings for Indian children. Instead, in § 1912,
Congress created additional elements that must be satisfied for some actions but
did not require a uniform standard of proof for the separate elements. As
discussed, Congress imposed a “beyond a reasonable doubt” standard for the
“serious emotional [or] physical damage” element in parental rights termination
cases under § 1912(f). Congress also imposed a “clear and convincing” standard
of proof for the “serious emotional or physical damage” element in foster care
placements under § 1912(e). The specified standards of proof in subsections §
1912(e) and (f) illustrate that if Congress had intended to impose a heightened
standard of proof for the active efforts element in § 1912(d), it would have done
Because Congress did not provide a heightened standard of proof for § 1912(d) of the
ICWA, the Nebraska Supreme Court declined to read the beyond a reasonable doubt standard
into the statute.24 Instead, the court determined that the default standard of proof for all
termination of parental rights cases applied.25
We agree with the Nebraska Supreme Court’s analysis: Congress clearly demonstrated
its ability to impose a particular standard of proof for the elements required under ICWA. But
Congress chose not to do so for the § 1912(d) “active efforts” determinations. Therefore, we
conclude that this Court in In re Morgan and in In re Kreft incorrectly adopted a beyond a
reasonable doubt standard of proof for these determinations. This Court issued both of these
decisions before November 1, 1990, and there are no published decisions after that date applying
the beyond a reasonable doubt standard to determinations under § 1912(d) of the ICWA.
Therefore, we are not bound by precedent to apply this standard of proof.26 We hold that the
proper standard of proof for determinations under § 1912(d) of the ICWA is the default standard
See In re Walter W, supra at 864 n 9, 864-865 (listing jurisdictions that have rejected the
beyond a reasonable doubt standard for determinations made under § 1912[d] and joining that
group). See also In re Michael G, 63 Cal App 4th 700, 709-712; 74 Cal Rptr 2d 642 (1998)
(rejecting the line of authorities that impose a heightened burden of proof on determinations
under § 1912[d]).
In re Walter W, supra at 864-865.
Id. at 865.
applicable to all Michigan cases involving the termination of parental rights. That standard is
proof by clear and convincing evidence.27
E. The “Active” Efforts Requirement
The parties also disagree about whether the active efforts must be part of a service plan
offered in connection with current proceedings. We conclude that formal or informal services
provided before the current proceeding may meet the “active efforts” requirement of § 1912(d)
of the ICWA. Further, we conclude that, where there is clear and convincing evidence that the
provision of additional services would be futile, that finding can meet the requirements of
Subsection 1912(d) of the ICWA clearly places the burden on the party seeking
termination to satisfy the trial court that active efforts to provide the required services have been
made and that they were unsuccessful. But the statute does not provide guidance concerning the
nature or extent of the active efforts necessary to satisfy the requirement or the timing within
which those efforts must be made.28 The statute merely requires proof that “active efforts have
been made to provide remedial services or rehabilitative programs” to prevent the breakup of the
Indian family at some point before termination and that the efforts “proved unsuccessful.”29
Hence, there is no precise formula for determining what constitutes sufficient “active efforts.”
Our colleague in her thoughtful dissent concludes that the term “active efforts”
“embodies a temporal component” and should be interpreted as requiring current, or
contemporaneous, rehabilitation efforts.30 We respectfully disagree. We acknowledge that the
term “active” may be “characterized by current activity, participation, or use.”31 However,
because a Michigan court has not yet interpreted the term “active efforts,” we may look to other
jurisdictions for guidance.32 In keeping with the majority of jurisdictions that have previously
addressed this issue, we hold that the Department need not show temporally concurrent “active”
efforts with each proceeding under the ICWA.
Most notably, in In re KD, the Colorado Court of Appeals explicitly concluded that the
“‘active efforts’ required by § 1912(d) of the ICWA need not be part of a treatment plan offered
See In re Trejo Minors, supra at 356-357.
See In re Walter W, supra at 865 (noting that the language “sets out praiseworthy but vague
goals for the courts to enforce,” which fail to give guidance “in determining whether the
Department’s efforts were sufficient to meet ICWA’s mandates”).
25 USC 1912(d).
Post at 9.
Random House Webster’s College Dictionary (1997) (citing as examples, “active member”
and “active account”).
People v Rogers, 438 Mich 602, 609; 475 NW2d 717 (1991).
as part of the current dependency proceedings.”33 Accordingly, the court held that, because of
the extensive, but unsuccessful, services that the social services department provided to the
father during two previous dependency cases, it would be an “‘exercise in futility’” to offer
another treatment plan.34
Several other jurisdictions have also held that, although § 1912(d) of the ICWA requires
“active efforts,” it does not require a social services department to “‘persist with futile efforts.’”35
For example, in EA v Alaska Div of Family & Youth Services, the Alaska Supreme Court held
that where parental rights have already been terminated with respect to one or more children, the
court “may consider the degree of the state’s efforts to prevent the breakup of the entire family in
assessing whether that effort was sufficient under ICWA.”36 The court noted that the Division of
Family and Youth Services (DFYS) had “expended substantial efforts over the last decade to
prevent the breakup of [the] family, without success.”37 The court further stated that, therefore,
“[t]here [was] no reason to think that either an additional psychological evaluation or an
additional seven months of intervention would have prevented” the termination.38
Similarly, in Letitia V v Superior Court of Orange Co, the California Court of Appeals
addressed “whether ‘active efforts’ within the meaning of ICWA require reunification services
be provided for each individual child or, put another way, whether the state is free to consider
what it defines as recent but unsuccessful reunification efforts with the same parent but a
different child sufficient to satisfy the mandate of [25 USC 1912(d)] with regard to a sibling.”39
Stating that “[t]he law does not require the performance of idle acts,” and noting the drain on
In re KD, 155 P3d 634, 637 (Colo App, 2007).
Id. (stating that “the court may terminate parental rights without offering additional services
when a social services department has expended substantial, but unsuccessful, efforts over
several years to prevent the breakup of the family, and there is no reason to believe additional
treatment would prevent the termination of parental rights.”).
Id., quoting In re JSB, 691 NW2d 611, 621 (SD, 2005), and citing In re PB, 371 NW2d 366,
372 (SD, 1985) (stating that a social services department is not charged with “the duty of
persisting in efforts that can only be destined for failure”). See also In re Nicole B, 175 Md App
450, 472; 927 A2d 1194 (2007) (“[T]he requirement of “active efforts” does not require “futile
EA v Div of Family & Youth Services, 46 P3d 986, 991 (Alas, 2002).
Id., citing NA v Div of Family & Youth Services, 19 P3d 597, 603-604 (Alas, 2001) (stating
that there is no reason to think that the DFYS’s failure to enroll the parent in yet another
residential dual-treatment program would have resulted in a more successful outcome), and KN v
Alaska, 856 P2d 468, 477 (Alas, 1993) (noting that “[a]lthough . . . DFYS might have done
more, it is unlikely that further efforts by DFYS would have been effective in light of [the
Letitia V v Superior Court of Orange Co, 81 Cal App 4th 1009, 1016; 97 Cal Rptr 2d 303
resources that the provision of further services would put on an already strained dependency
system, the court held that additional services were not necessary where the service provider had
already spent years providing unsuccessful services that did not benefit the parent.40
In keeping with these jurisdictions, we conclude that the ICWA does not require current
active efforts “‘if it is clear that past efforts have met with no success.’”41 Thus, where a parent
has consistently demonstrated an inability to benefit from the Department’s provision of
remedial and rehabilitative services, or has otherwise clearly indicated that he or she will not
cooperate with the provision of the services,42 a trial court’s finding that additional attempts to
provide services would be futile will satisfy the requirements of § 1912(d) of the ICWA.
Nothing in § 1912(d) precludes the Department from seeking termination of parental rights
where active efforts to reunite the family have proven unsuccessful in the past.43 “‘A child
should not be required to wait for parents to acquire parenting skills that may never develop.’”44
Thus, we conclude that nothing within § 1912(d) of the ICWA requires the Department to
provide duplicative remedial or rehabilitative services.45 Subsection 1912(d) does not specify
the time within which the active efforts must have been made. Rather, it only requires that the
Id., citing AA v Div of Family & Youth Services, 982 P2d 256, 262 (Alas, 1999) (additional
services not required where parent demonstrates “lack of commitment to treatment”); AM v
Alaska, 945 P2d 296, 305 (Alas, 1997) (in determining sufficiency of remedial efforts, court may
consider a parent’s demonstrated lack of willingness to participate in treatment); In re Annette P,
589 A2d 924, 928-929 (Me, 1991) (finding prior remedial efforts sufficient where parents failed
to cooperate with case worker or demonstrate interest in reunification); In re ARP, 519 NW2d
56, 60-62 (SD, 1994) (finding that the efforts made in siblings’ cases were sufficient to justify
the termination of parental rights without the provision of additional remedial services); In re SR,
supra at 887 (finding active efforts within the meaning of the ICWA after repeated but
unsuccessful steps were taken to encourage the mother to take advantage of available treatment
programs); CEH v LMW, 837 SW2d 947, 957 (Mo App, 1992) (additional remedial programs not
required where prior “efforts became futile and proved unsuccessful”); State ex rel Juvenile
Dep’t of Multnomah Co v Woodruff, 108 Ore App 352, 357; 816 P2d 623 (1991) (additional
services not required by ICWA where parents with long history of alcohol and drug abuse had
received prior services).
In re KD, supra at 637, quoting In re Adoption of Hannah S, 142 Cal App 4th 988, 998; 48 Cal
Rptr 3d 605 (2006).
See Wilson W v Office of Children’s Services, 185 P3d 94, 101-103 (Alas, 2008) (holding that
the Office of Children’s Services was not required to keep trying to provide services to a violent
and uncooperative parent once it became clear that the attempts would be futile).
See In re Romano, unpublished opinion per curiam of the Court of Appeals, issued December
11, 1998 (Docket No. 207482). Although nonbinding, we find this statement from this
unpublished opinion persuasive. MCR 7.215(C)(1); Dyball v Lennox, 260 Mich App 698, 705 n
1; 680 NW2d 522 (2003).
In re ARP, supra at 62 (internal quotation marks and citation omitted).
See Letitia V, supra at 1016.
trial court be satisfied that the Department, in fact, made such active efforts before the trial court
may proceed. Construed in context, § 1912(d) only requires “that timely and affirmative steps be
taken to accomplish the goal which Congress has set: to avoid the breakup of Indian families
whenever possible by providing services designed to remedy the problems which might lead to
severance of the parent-child relationship.”46 For these reasons, the fact that the Department
provided particular services in connection with a prior proceeding does not necessarily preclude
such services from meeting the “active efforts” requirement in a current proceeding. Rather, the
Department “may engage in ‘active efforts’ by providing formal or informal efforts to remedy a
parent’s deficiencies before dependency proceedings begin.”47 Whether the prior services were
timely and sufficient will depend on the facts specific to the case.48
Accordingly, we decline to employ a definition of “active” that stresses a temporal
requirement. In the context of the ICWA, we read the term “active” as being “marked by or
disposed to direct involvement or practical action.”49 In other words, we read the “active efforts”
requirement as imposing an obligation on the Department to take an involved, rather than a
passive, approach when providing remedial services and rehabilitative programs to an Indian
family. We note that in AA v Div of Family & Youth Services the Alaska Supreme Court
specifically adopted this active versus passive interpretation, stating:
Passive efforts are where a plan is drawn up and the client must develop
his or her own resources towards 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
In re KD, supra at 637.
Wilson W, supra at 101; In re Walter W, supra at 865.
Random House Webster’s College Dictionary p 13 (citing as example, “active support”).
AA, supra at 261 (internal quotation marks and citation omitted). See also In re AN, 325 Mont
379, 384; 106 P3d 556 (2005) (“The term active efforts, by definition, implies heightened
responsibility compared to passive efforts. Giving the parent a treatment plan and waiting for
him to complete it would constitute passive efforts.”).
Similarly, in In re JS, the Oklahoma Court of Civil Appeals explained as follows:
Used in § 1912(d) as an adjective modifying “effort,” the common and
ordinary meaning of “active” means “characterized by action rather than
contemplation or speculation” or “participating,” Webster Third New
International Dictionary 22 (1986), and “causing action or change,” “effective,”
or “active efforts for improvement,” The American Heritage Dictionary 7 (1986).
As the Alaska Supreme Court in A.A. v. State of Alaska recognized, the opposite
or antonym of “active” is “passive.” See The New Webster Encyclopedic
Dictionary of the English Language (1980).
Stated another way, “active efforts” requires more than simply pointing the parent in the right
direction, it “requires ‘leading the horse to water.’”52
We further note that the majority of jurisdictions interpret “active efforts” as imposing a
higher burden than various states’ “reasonable efforts” requirement,53 and that numerous courts
have required that the service provider “provide culturally relevant remedial and rehabilitative
services to prevent the breakup of the family.”54
In sum, on remand, the trial court must determine whether there was clear and convincing
evidence that the Department met its burden under § 1912(d) of the ICWA. In doing so, the trial
court should consider the adequacy of the past provisions of remedial services to Finfrock, taking
into account the extent of the Department’s efforts and their cultural relevance. The trial court
may also consider evidence that the provision of additional services to Finfrock would be futile.
In re JS, supra at 593.
Id. at 594.
In re Nicole B, supra at 471 (“The majority of courts that have considered the ‘active efforts’
requirement . . . have determined that it sets a higher standard for social services departments
than the ‘reasonable efforts’ required by state statutes.”). See also Winston J v Dep’t of Health &
Social Services, 134 P3d 343, 347 n 18 (Alas, 2006); MW v Dep’t of Health & Social Services,
20 P3d 1141, 1146 n 18 (Alas, 2001); In re Walter W, supra at 865; In re JS, supra at 593.
Carson P ex rel Foreman v Heineman, 240 FRD 456, 474, 500 (D Neb, 2006) (emphasis
added). See also In re Walter W, supra at 865 (“[A]t least some efforts should be ‘culturally
relevant.’”); In re Michael G, supra at 714 (stating that “the court should take into account “the
prevailing social and cultural conditions and way of life of the Indian child’s tribe,” and that
remedial services should “involve and use the available resources of the extended family, the
tribe, Indian social service agencies and individual Indian care givers”) (quotation marks and
citation omitted); In re Welfare of Children of SW, 727 NW2d 144, 150 (Minn App, 2007)
(stating that “active efforts” are “thorough, careful, and culturally appropriate efforts”)
(quotation marks and citation omitted).
Because the trial court failed to make the factual findings required by 25 USC 1912(d), it
could not proceed to terminate Finfrock’s parental rights to Ashtyn Roe. Consequently, we
reverse the trial court’s decision, vacate the termination order of February 1, 2008, and remand
for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings consistent with this opinion. We do not
Markey, P.J., concurred.
/s/ William C. Whitbeck
/s/ Jane E. Markey