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December 01, 2012

ICWA Placement Preferences Required Relative Placement

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re A.R., 2012 WL 5457416 (Colo. Ct. App.)

Although trial court improperly used reasonable efforts standard, agency’s efforts fulfilled active efforts requirement of Indian Child Welfare Act (ICWA), making error harmless. However, reversal was required because the trial court improperly balanced relative placement and continued foster home placement, giving too little weight to ICWA relative preference provisions.

A.R. was removed from her adult sister after she was found, at age two and a half, wandering alone near a highway and a river. There had been over a dozen prior reports of neglect against the mother and she was homeless at the time. The trial court found the child dependent. A.R.’s mother was enrolled in the Navajo Nation, which had representatives participate in the proceedings.

After a year, when the mother failed to make progress, the agency moved to terminate her rights. Initially, the agency argued against placement with the child’s aunt and uncle because they had not been able to complete a home study. However, by the end of the termination proceedings, the study had been completed and the agency recommended termination and placement with the relatives. The Navajo representatives agreed with the placement recommendation. The guardian ad litem advocated for the child remaining with her foster parents.

The trial court granted the termination petition, but denied the request for placement with the aunt and uncle. The mother and the agency appealed to the Colorado Court of Appeals.

The mother argued on appeal that the trial court used the incorrect reasonable efforts standard rather than the active efforts standard required for ICWA cases. The Court of Appeals agreed. The trial court found the agency had made reasonable efforts to reunify and there was never any disagreement in the case that ICWA applied.

The court wrote that another division of the Colorado Court of Appeals had concluded that active efforts were equal to reasonable efforts in a case. The Court of Appeals disagreed discussing the policy issues behind ICWA and the fact that all but Colorado and one other state that had addressed this issue found that active efforts required more than reasonable efforts.

Regardless, in this case, the court found the agency made active efforts. The agency went well beyond creating a plan and advising the mother of it by arranging visits at various locations, working with mother’s schedule and transportation problems, arranging in-home therapy, and helping her with housing. Thus, although the trial court voiced the wrong standard, this error was harmless.

The Court of Appeals noted next that two questions were presented regarding the relative placement. First, was there an appropriate, less drastic plan short of termination? Second, if termination was the least drastic alternative, where should the child be placed for adoption?

Regarding whether relative custody would have been a less drastic alternative to termination, the record supported the trial court’s finding. A.R. had a number of special needs that could reasonably lead the court to find the high stability of adoption was required to meet her needs.

Next, the Court of Appeals discussed whether ICWA’s placement preferences were met. The trial court found the child’s bond to the foster parent outweighed the benefits of placement with Navajo family members. The trial court, in balancing these factors, applied the wrong standard. ICWA includes a presumption that placement with family or tribal members is in the child’s best interests. The temporary psychological harm that the court found would result in the child’s removal from the home did not rebut the presumption.

Based on the above, the court of appeals found termination was proper but that denying the agency the ability to place A.R. with her relatives was improper.