Can parental rights be terminated without attempts to remediate the problems?
No. Section 1912(d) provides that “any party seeking to effect a . . . 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.” The duty of showing that active efforts have been made extends to private petitioners and must be demonstrated beyond a reasonable doubt. D.J. v. P.C., 36 P.3d 663 (Alaska 2001). Practice Tip: It should be noted that under the Adoption and Safe Families Act (ASFA), 42 U.S.C. 673b, 678, 679b (2000), states are relieved of the obligation to provide reasonable efforts to reunite the family in certain aggravated circumstances. However, these exceptions do not apply to the requirement to provide “active efforts” under the ICWA. In re J.S.B., Jr., 2005 SD 3, 691 N.W.2d 611.
