ICWA’S “ACTIVE EFFORTS” STANDARD DURING THE COVID-19 PANDEMIC

By: Molly Nelson-Regan, Volume 106 Staff Member[1]

Congress enacted the Indian Child Welfare Act of 1978[2] (ICWA) out of concern for the “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes.”[3] ICWA offers the “gold standard” for family reunification in the landscape of child welfare.[4] This includes the government ensuring “active efforts” in the pursuit of reuniting children with their families.[5] The definition of active efforts is broad and aspirational, encouraging all necessary efforts to reunite families.[6] The Bureau of Indian Affairs states that active efforts may include, for example, “[i]dentifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services . . . .”[7] Active efforts in ICWA cases require a higher level of support for families going through the family reunification process compared to the “reasonable efforts” standard for the majority of family reunification matters.[8]

I. THE STATE OF ACTIVE EFFORTS DURING COVID-19

With the onset of the Covid-19 pandemic, access to in-person resources in the state of Minnesota was abruptly suspended.[9] Additionally, many activities that normally constituted a significant part of active efforts stopped suddenly.[10] Hearings, family visits, and case plan services—key parts of active efforts under ICWA—were “severely impacted” by the pandemic.[11]

The National Indian Child Welfare Center (NICWA) notes that “[a]ctive efforts require a state case manager make efforts to actively assist a family in making the changes necessary to keep a child safely in their home, or to make the changes necessary for a child to return safely and reunify with family.”[12] NICWA also highlights that the timeline for reunification is short and childhood time spent in a tribal setting is critical.[13] While active efforts linger on the sideline, families awaiting reunification stay in a limbo of not knowing when their family visits will begin, when hearings may occur, or when much needed services will be accessible.[14]

II. HOW TO UPHOLD ICWA’S ACTIVE EFFORTS STANDARD

Active efforts take many forms in ICWA proceedings.[15] The Guidelines for Implementing the Indian Child Welfare Act lists eleven ways in which active efforts may be provided.[16] Specifically, the definition of active efforts notes that active efforts includes: “Supporting regular visits with parents or Indian custodians,” “[i]dentifying community resources” available to families, and “[m]onitoring progress and participation in services.”[17] The flow of ICWA cases builds in opportunities for all of these active efforts.[18]

The definition of active efforts under the Minnesota Tribal State Agreement (TSA) also emphasizes the various forms that active efforts can and should take.[19] When introducing active efforts, the TSA notes that active efforts is a “rigorous and concerted level of case work.”[20] It further delineates that active efforts includes “[u]sing available tribal, other Indian agency and state resources that exist and that are appropriate for the child and family.”[21]

Providing these efforts during Covid-19 has proven challenging.[22] The Minnesota Child Safety and Permanency Division recognized these challenges and issued a checklist for adapting to the obstacles posed by the pandemic.[23] Adapting these tools to the higher “active efforts” standard of ICWA raises the question of what resources are available for the government and families undergoing reunification.

Even during Covid-19, there are tools available that can help achieve active efforts. Alternatives for meaningful family visitation are present, including visits in outdoor spaces or over a video call.[24] Adjustments for case plans, including resources for chemical health maintain availability during the pandemic,[25] such as online substance abuse forums in place of in-person meetings.[26] Mobile services for drug testing may also be available, if that is part of the case plan. The Bureau of Indian Affairs notes that “The ‘active efforts’ requirement is a vital part of ICWA’s statutory scheme, and the statute does not contain any exceptions.”[27] Attending to active efforts is key, especially when families experienced a shift in their routines during Covid-19. Ensuring the quality of these interactions is a paramount consideration and may require more touchpoints than typical under active efforts in pre-Covid-19 times.[28] These are all factors courts should be considering when making active efforts determinations in ICWA cases.

III. ICWA’S GOALS MUST BE PRESENT, EVEN WHEN PEOPLE CAN’T BE

When considering active efforts, it is also important to remember what the law is trying to achieve: “Without active efforts that address the needs of Indian children on a model that is different from efforts provided in a non-ICWA proceeding, ICWA will have limited success in preventing the removal of Indian children from their homes.”[29] Ensuring access to what families need is key to ICWA and ensuring timely family reunification. Innovative and accessible forms of connections have been made available to tribes, such as equipping school buses with Wi-Fi when students have long bus rides.[30] It is easy to imagine how similar buses could be used to ensure Internet access for family visitation if an in-person visitation is unavailable for health or other reasons. The determination of what constitutes active efforts must change as the current circumstances demand, and all parties should ask what they can do to fulfill the goals of ICWA, during and post-Covid-19.

 

[1] Thank you to Associate Justice Anne McKeig of the Minnesota Supreme Court for her guidance on this piece.

[2] 25 U.S.C. §§ 1901–63.

[3] Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).

[4] Sheri Freemont, Gold Standard Lawyering for Child Welfare System-Involved Families: Anti-Racism, Compassion, and Humility, Nat’l Ass’n Couns. for Children 2 (2020), https://cdn.ymaws.com/www.naccchildlaw.org/resource/resmgr/guardian/2020_december/guardian_2020_v42n04_r6.pdf [https://perma.cc/UKX6-7239].

[5] 21 U.S.C. § 1912(d); 25 C.F.R. § 23.2 (2021).

[6] Active Efforts Reference, Bur. Indian Affs., https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/ois/pdf/idc2-041405.pdf [https://perma.cc/ANW2-DT49].

[7] Id.

[8] See generally Reasonable and Active Efforts: Ensuring Timely Child Safety, Permanency, and Wellbeing, Scott Cnty. (Sept. 1, 2016), https://www.mncourts.gov/mncourtsgov/media/scao_library/ENE/Reasonable-and-Active-Efforts-(Nalezny-Slides).pdf [https://perma.cc/5L5E-ZBW8].

[9] Minn. Exec. Dep’t, Governor Tim Walz, Emergency Executive Order 20-35, Extending the COVID-19 Peacetime Emergency Declared in Executive Order 20-01 (2021).

[10] Active Efforts in ICWA Cases During the Pandemic, Cal. Indian Legal Servs., https://www.calindian.org/wp-content/uploads/2020/04/Active-Efforts-and-Reasonable-Services-During-the-Pandemic.pdf [https://perma.cc/VP72-8PZC],

[11] Id.

[12] A Guide to Compliance with the Indian Child Welfare Act, Nat’l Indian Child Welfare Ass’n 5 (2016), https://www.nicwa.org/wp-content/uploads/2018/01/Guide-to-ICWA-Compliance-2018.pdf. [https://perma.cc/P3BZ-TTJU].

[13] Id.

[14] Active Efforts in ICWA Cases During the Pandemic, supra 10.

[15] Guidelines for Implementing the Indian Child Welfare Act, Bur. Indian Affs. 42 (Dec. 2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf [https://perma.cc/NVY8-56V5].

[16] Id. at 41–­42; 25 C.F.R. § 23.2 (2021).

[17] 25 C.F.R. § 23.2(9) (2021).

[18] Chey Clifford-Stoltenberg, Rachel Kupcho, Phoebe A. Mills & David Simmons, Indian Child Welfare Glossary and Flowchart, Nat’l Indian Child Welfare Ass’n 2 (last visited Oct. 5, 2021), https://www.narf.org/nill/documents/icwa/resources/flowcharts/glossary.pdf [https://perma.cc/UV8J-74S4].

[19] Tribal/State Agreement, Minn. Dep’t Hum. Servs. 9–10 (February 22, 2007), https://www.mncourts.gov/mncourtsgov/media/scao_library/CJI/TSA-Tribal-State-Agreement.pdf [https://perma.cc/X7BL-3SQC].

[20] Id. at 9.

[21] Id. at 10.

[22] Active Efforts in ICWA Cases During the Pandemic, supra xi.

[23] See, e.g., Minn. Dep’t Hum. Servs., Interim Guidance on Prioritizing Child Safety and Conducting Visits During COVID-19 Pandemic (last accessed Nov. 1, 2021), https://mn.gov/dhs/assets/MN%20Interim%20COVID19%202%20%20Worker%20Guidance%20rvsd%204.2.20_tcm1053-426213.pdf [https://perma.cc/V6J2-F96G].

[24] Active Efforts in ICWA Cases During the Pandemic, supra 10.

[25] Id.

[26] Id.

[27] Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38778, 38814 (June 14, 2016).

[28] Active Efforts in ICWA Cases During the Pandemic, supra 10.

[29] Megan Scanlon, From Theory to Practice: Incorporating the Active Efforts Requirement in Indian Child Welfare Act Proceedings, 43 Ariz. St. L. J. 629, 662–63 (2011).

[30]  Bureau of Indian Education Equips Its 25 Longest School Bus Routes with Wi-Fi to Aid Student Learning, U.S. Dep’t Interior: Indian Affs. (Oct. 1, 2020), https://www.bia.gov/as-ia/opa/online-press-release/bureau-indian-education-equips-its-25-longest-school-bus-routes-wi-fi [https://perma.cc/UM2D-AK7P].