Does ASFA override ICWA?
The primary question here is whether ICWA’s requirement to provide active efforts to prevent the breakup of Indian families is overridden or excused by the provisions of ASFA. The State argues that ASFA relieves DSS of any duty it held under ICWA to provide active efforts to reunite J.S.B. with his father. This is so, the State argues, because ASFA provides that “reasonable efforts . . . shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that . . . the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse)[.]” 42 USC ยง 671 [*16] (a)(15)(D). The State asserts that either the father “has a documented history of abuse and neglect associated with chronic alcohol or drug abuse” or he “has exposed the child to or demonstrated an inability to protect the child from substantial harm or
