Case Information
*1 #26068-a-GAS
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF P.S.E., CHILD, AND CONCERNING M.A.S., RESPONDENT.
* * * *
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA * * * *
THE HONORABLE JEFF W. DAVIS
Judge
* * * *
MARTY J. JACKLEY
Attorney General
ANN M. HOLZHAUSER
Special Assistant Attorney General
Department of Social Services Attorneys for appellee Pierre, South Dakota State of South Dakota. DANA L. HANNA Attorney for appellant Rapid City, South Dakota Father, M.A.S.
* * * *
CONSIDERED ON BRIEFS ON MAY 17, 2012 OPINION FILED 06/20/12 SEVERSON, Justice
[¶1.] M.A.S. (Father) appeals termination of his parental rights to P.S.E. At the time P.S.E. was removed from Mother’s care, Father lived in California and did not know he had a child in South Dakota. The Indian Child Welfare Act (ICWA) applies to these proceedings because P.S.E. is an enrolled member of the Fort Peck Sioux Tribe. Father argues that the Department of Social Services (DSS) did not make active efforts to reunite the Indian family and that any efforts made were successful. Because the evidence presented shows that DSS provided active and reasonable, albeit abbreviated, efforts to place P.S.E. with Father, and those efforts were unsuccessful, the order is affirmed.
FACTS
[¶2.] On June 19, 2009, DSS took P.S.E. (DOB 6/2/2008) into temporary protective custody. Mother had a PBT over .20 and no sober caretakers were available. At some point, Mother told DSS that Father was P.S.E.’s father. Father lived in California, unaware he had a child in South Dakota.
[¶3.] At an adjudicatory hearing, Mother admitted neglecting P.S.E. At a later hearing, Father acknowledged that he had not known of P.S.E. until contacted by DSS and that he was not domiciled with P.S.E. Based on this acknowledgement, the trial court determined that Father had not provided care and support for the child through no fault of Father.
[¶4.] At the time of Father’s adjudicatory hearing, DSS’s stated goal was to foster a relationship between P.S.E. and Father. The ultimate goal was placement with Father. Toward this end, DSS requested California Department of Social Services (CDSS) complete a homestudy at Father’s Tipton, California home. [¶5.] Before placement of P.S.E. with Father would be authorized, the California homestudy required three things of Father: that he complete alcohol education classes; take an assessment to determine whether he should enroll in anger management classes; and take parenting classes. On June 18, 2010, nine months after receiving the California homestudy, DSS completed an initial case plan with Father. The case plan incorporated the three objectives listed in the California homestudy, modified to require Father to enroll in anger management and parenting classes.
[¶6.] DSS requested a second California homestudy in September 2010, but CDSS refused to conduct the homestudy. Father’s children that had been residing with him (California children) had been removed due to allegations of physical abuse at the hands of their mother, with whom Father lived. With these allegations pending, California would not perform a homestudy on Father’s home. Therefore, at the time of the dispositional hearing, a California homestudy approving placement with Father had not been completed.
[¶7.] On March 21, 2011, a final dispositional hearing was held regarding Father. (Mother’s rights had previously been terminated and she did not appeal termination.) Testimony from the DSS caseworker assigned to the case established that Father had completed alcohol education classes and enrolled in parenting classes. Father testified that he had enrolled in anger management classes shortly before the dispositional hearing.
[¶8.] Father’s testimony also revealed that his California children were still in the custody of CDSS. In order to regain custody, CDSS required Father to obtain “outpatient treatment, a batterer’s program, anger management program, parenting classes, and AAs.” Father indicated this list of requirements may not be exhaustive, and that this process would take time. “They keep on adding as they go. They also told me it’s going to be hard for you to work or do anything because I can’t live on the income I have.” When asked if he was ready for P.S.E. to go to California with him, he testified that he would like to complete the California program first. He did not know how long the California program would take. [¶9.] The trial court found that DSS had provided active efforts to prevent the breakup of the Indian family and terminated Father’s parental rights. Father appeals, challenging the determination that “active efforts” were made and that those efforts were unsuccessful.
[¶10.] Issue # 1: Whether the trial court erred by not entering a
finding of fact that the efforts provided by DSS were unsuccessful. Father first presents a question regarding interpretation of ICWA. 25
U.S.C. § 1912(d) provides:
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.
Whether this section requires an explicit finding of fact that the efforts provided
were unsuccessful is a question of statutory interpretation reviewed de novo.
See
AFSCME Local 1025 v. Sioux Falls Sch. Dist.
,
child in the absence of a finding of fact that the active efforts requirement of § 1912(d) had been met.
Indeed, the trial court did not specifically find that these post December 2 efforts constituted “active efforts.” . . . .
In conclusion, although the circuit court erroneously ruled that ASFA’s aggravated circumstances eliminated the need to provide active efforts to reunite the father with his son after December 2, 2002, the fact is that DSS continued to make those efforts.
People ex rel. J.S.B., Jr.
,
be satisfied that the efforts provided to prevent the breakup of the Indian family were unsuccessful. 25 U.S.C. § 1912(d). The trial court’s oral pronouncement following the dispositional hearing was incorporated by reference into the findings of fact and conclusions of law. While not specifically saying that the efforts of DSS to prevent the breakup of the Indian family were unsuccessful, the substance of the findings and conclusions, including those made orally following the hearing, demonstrate the trial court’s satisfaction that the efforts were unsuccessful. The lack of the precise language used by the statute does not mandate reversal. [¶14.] Issue # 2: Whether the evidence presented established beyond a
reasonable doubt that DSS made active efforts to provide remedial services and rehabilitative programs to Father and that those efforts were unsuccessful.
[¶15.]
Father next attacks the merits of the findings required by § 1912(d),
asserting that the evidence does not establish that DSS provided “active efforts.”
Whether active efforts were provided under ICWA is a mixed question of law and
fact subject to de novo review.
J.S.B.
,
efforts were made, and that those efforts were unsuccessful. In abuse and neglect proceedings in which ICWA does not apply, DSS must establish that “reasonable efforts” have been made to return the child to the parent. SDCL 26-8A-21. The trial court found that DSS made reasonable and active efforts to prevent removal of P.S.E. from the home and “since her removal the Department of Social Services has made reasonable efforts to reunite the minor child with the Respondent parents.” Father argues that the active efforts required by ICWA is a heightened standard compared to the reasonable efforts required by state law, but that the record does not support a finding of either reasonable or active efforts. The State takes the position that “active efforts” and “reasonable efforts” are synonymous, and that such efforts were made. This Court has not addressed the relationship between active efforts as
required by ICWA and reasonable efforts as required by South Dakota Codified
Law. But this Court differentiated the active efforts requirement of ICWA from the
reasonable efforts requirement of the Adoption and Safe Families Act (ASFA).
“Importantly, the concept of ‘active’ efforts pursuant to ICWA is distinguished from
‘reasonable’ efforts as required by [ASFA].”
People ex rel. J.I.H.
,
determine whether a distinction exists between active and reasonable efforts.
Father argues that active efforts require more than reasonable efforts, while the
State argues the terms are synonymous. Courts considering this issue have
recognized a split of authority. Father’s position is the clear majority, while two
courts have ostensibly taken the State’s position. “The majority of jurisdictions that
have considered the issue hold that the active efforts requirement ‘sets a higher
standard for social services departments than the reasonable efforts required by
state statutes.’”
State ex rel. C.D.,
J.S
.,
2.
See Winston J. v. Alaska Dep’t of Health and Soc. Servs.
,
‘active efforts’ requirement is equivalent to the state’s ‘reasonable efforts’ to
provide reunification services in a non-ICWA case[ ].”
J.S.,
4. To satisfy the requirements of subdivision (d) of section 1912,
“active” remedial and rehabilitative efforts must be directed at remedying the basis for the parental termination proceedings, and thus the types of required services depend upon the facts of each case. Some courts have interpreted the federal standard to require that child protective services affirmatively prove all “reasonable” efforts to provide the parents with rehabilitative services have been exhausted. One commentator on the ICWA has drawn the following distinction between active and passive efforts: “. . . passive efforts entail merely drawing up a reunification plan and requiring the ‘client’ to use ‘his or her own resources to [ ] bring[ ] it to fruition.’ Active efforts, on the other hand, include ‘tak[ing] the client through the steps of the plan rather than requiring the plan to be performed on its own.’” Id . (alterations in original) (internal citations omitted).
California’s heightened view of “reasonable efforts” rather than a definition of “active efforts” failing to distinguish passive efforts. Id . 5 Therefore, even the minority position on this issue seems to require active efforts as opposed to reasonable efforts which could be merely passive efforts. See id . (“The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.” (emphasis added)). The Colorado opinion adopting the minority position cites a California
decision and offers no independent rationale for its decision.
State ex rel. K.D.,
155
P.3d 634, 637 (Colo. App. 2007) (‘“Active efforts’ are equivalent to reasonable efforts
to provide or offer a treatment plan in a non-ICWA case and must be tailored to the
circumstances of the case.” (citing
In re Adoption of Hannah S.
, 142 Cal. App. 4th
988, 998 (Cal. Ct. App. 2006) (citing
Michael G.
,
Id
. at 714 (alteration in original) (internal citations omitted). proposition which, as discussed above, calls into question any appreciable difference
between the majority and minority views.
Hannah S.
,
attended the January 2010 adjudicatory hearing in South Dakota, in person. At
that time, Father informed DSS that he wished to be considered a placement option
for P.S.E. That same month, CDSS, on request from DSS, conducted a homestudy
of Father’s California home. The study concluded that Father would be a suitable
6.
[W]hen interpreting a statute pertaining to Indians, the United
States Supreme Court has stated, ‘statutes are to be construed
liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit . . . .’
Montana v. Blackfeet Tribe of
Indians
,
See J.S.B.,
opposed to passive. Those courts discussing active efforts distinguish passive efforts
by providing an example of passive efforts. “Giving the parent a treatment plan and
waiting for him to complete it would constitute passive efforts.”
A.N
., 106 P.3d at
560. Here, DSS did more than that. When notified that Father needed money to
complete his DUI classes, DSS paid for Father’s DUI classes. Wright actively
sought out and found an individual in California who could provide Father with
parenting classes. DSS also actively made preparations with P.S.E. for future
placement with Father. A visit between Father and P.S.E. was videotaped so the
foster parents could watch the video with P.S.E. to familiarize her with Father.
While the distance separating the parties may have limited the role DSS was able
to play, they actively assisted Father in working toward placement in his home.
[¶26.]
Given the circumstances, the efforts of DSS were also reasonable.
Again, the geographic distance cannot be overlooked—Father was financially
unable to travel to South Dakota to attend visitation. Father insists DSS should
have been required to pay for his travel expenses. Wright testified that DSS did not
have funds available for that, but he informed Father that if he could come to South
Dakota, DSS could reimburse him for hotel expenses. And DSS paid $505 for
Father to complete his DUI classes. Under the circumstances, the efforts provided
by DSS toward placement of P.S.E. with Father were both active and reasonable.
As with the first issue, the lack of an explicit finding that active efforts
were made does not mandate reversal.
See J.S.B
.,
unsuccessful as required by § 1912(d). By the time of the dispositional hearing, Father had completed DUI classes, enrolled in parenting classes, and by his testimony, enrolled in anger management classes. Father argues that these were the requirements of the DSS case plan and he has completed these tasks. While this is true, Father is no closer to being a suitable placement for P.S.E. than he was at the time the initial case plan was completed. The California homestudy was requested and completed because the
ICPC prohibits placement outside of South Dakota without approval by the receiving state. See SDCL 26-13-1. Here, before P.S.E. could be placed with Father, California would have to provide a satisfactory homestudy. At the time of the dispositional hearing, Wright testified that California would not complete a second homestudy because Father’s California children had been removed from his home. Father confirmed removal of his California children. California’s inability to conduct a homestudy provides an objective determination of the lack of success of the efforts designed to accomplish placing P.S.E. with Father. Father testified that in order to have his California children returned, he was required to undergo all the classes mentioned in his initial case plan with South Dakota DSS. And Father testified that he did not feel ready to have P.S.E. in his home until that program was complete, although he had no idea how long that would take. The efforts of DSS were unsuccessful in making progress toward accomplishing the ultimate goal—placement of P.S.E. with Father. Father relies on J.I.H ., an ICWA case in which this Court reversed
termination of a father’s parental rights because “there was no evidence that DSS’s
efforts were unsuccessful or that they failed, even though they were limited by
Father’s incarceration.”
[¶32.] Issue # 3: Whether termination was the least restrictive
alternative available.
“Our standard of review is ‘whether the trial court’s ultimate
finding—that clear and convincing evidence indicated termination was the least
restrictive alternative commensurate with the child’s best interests—was clearly
erroneous.’”
People ex rel. L.S.
,
unsuccessful. Those efforts have resulted in no positive movement toward
placement of P.S.E. with Father. While perhaps Father could one day make enough
progress so that a successful California homestudy could be completed and P.S.E.
could live with Father, there is no indication this will happen any time soon. And
since the inception of Father’s involvement in this matter, he has made no progress.
P.S.E. should not be required to wait for Father to develop parenting skills that
may never materialize.
See In re Z.Z
.,
CONCLUSION DSS provided Father with active, reasonable efforts toward placement
of P.S.E. with him in California. Those efforts were unsuccessful at achieving any progress toward that goal. The trial court did not err in finding that the least restrictive alternative was termination. The order terminating Father’s parental rights is affirmed. GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.