People Ex Rel. P.S.E., 2012 SD 49

P.S.E. is an Indian child (Fort Peck Sioux) whose father resided in California and was unaware of the child in South Dakota; ICWA governs the case as the child is an enrolled member of a tribe.
DSS took P.S.E. into custody on June 19, 2009 due to the mother’s neglect and lack of sober caretakers; Father did not reside with P.S.E. and had no contact at removal.
DSS sought to reunify the family and requested out-of-state (California) homestudy to evaluate placement with Father; CDSS later refused a second homestudy.
A June 18, 2010 initial case plan incorporated California homestudy requirements (alcohol education, anger management, parenting classes) and DSS adjusted to require Father to complete these.
At the March 21, 2011 dispositional hearing, Father had completed alcohol education, enrolled in parenting and anger management classes, but California would not complete a homestudy due to concerns about Father’s other California children; the court terminated Father’s rights as the least restrictive option.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether explicit factual finding of unsuccessful efforts required	Father (the State) argues explicit finding needed	State contends satisfaction of § 1912(d) is required but not a formal finding	Explicit finding not required
Whether DSS made active and reasonable efforts to reunify and they were unsuccessful	Father contends efforts were not active/unsuccessful	State argues active efforts are satisfied and were unsuccessful	Yes; efforts were active and reasonable and unsuccessful
Whether termination was the least restrictive alternative	Court should consider alternative options like long-term placement	No viable placement option; ongoing delays not prudent	Termination was least restrictive option

People ex rel. J.S.B., 2005 S.D. 3, 691 N.W.2d 611 (S.D. 2005) (active efforts requirement recognized; disruption of Indian family considered but efforts continued)
J.S., 2005 S.D. 3, 691 N.W.2d 611 (S.D. 2005) (distinguishes active vs. reasonable efforts; need not always have explicit factual finding)
J.I.H., 2009 S.D. 52, 768 N.W.2d 168 (S.D. 2009) (balances ICWA active efforts with termination standards; relevance to this case's standard")
In re A.N., 106 P.3d 556 (Mont. 2005) (active vs. reasonable efforts; heightened standard implied)
In re Michael G., 63 Cal. App. 4th 700 (Cal. Ct. App. 1998) (active vs. passive efforts; distinction from reasonable efforts in ICWA context)
State ex rel. C.D., 200 P.3d 194 (Utah Ct. App. 2008) (majority view that active efforts exceed reasonable efforts)
J.S., 177 P.3d 593 (Okla. Civ. App. 2008) (majority view cited supporting active efforts standard)