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“Active efforts” to preserve family required by ICWA are measured at time of disposition, not by long-term prospect for parent to regain custody

Brown County v. J.J., 2021AP1079, District 3, 3/7/23 (one-judge decision; ineligible for publication); case activity

Before an Indian child subject to a CHIPS proceeding is placed out of the home of his or her parent or Indian guardian, § 48.028(4)(d)2. and the federal Indian Child Welfare Act (ICWA) both require, among other things, proof by clear and convincing evidence that “active efforts, as described in [§ 48.028(4)](g) 1., have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child’s family and that those efforts have proved unsuccessful.” The court finds the County proved it made “active efforts” in this case.

J.J. (“Jasper”) and his son “Sam” are members of the Sault Ste. Marie Tribe of Chippewa Indians. Sam and his siblings were removed from the home of their biological mother under a temporary custody order based on issues about the mother’s sobriety and homelessness, Sam’s truancy at school, and Jasper’s unavailability to care for Sam because he was incarcerated. The County then filed a CHIPS petition. Sam’s mother ultimately pleaded no contest to the CHIPS petition, but Jasper demanded a trial. The circuit court granted the County’s motion for summary judgment and, after hearing testimony from the County’s social worker and a tribal representative as well as from Jasper, ordered Sam to be placed in out-of-home care. (¶¶2-18).

To make “active efforts” to prevent the breakup of the family requires the County to do all of the nine activities listed under § 48.028(4)(g)1. Jasper claims that the County did not meet its burden to prove it offered or employed “[a]ll available family preservation strategies” and requested involvement of the tribe “to identify those strategies and to ensure that those strategies are culturally appropriate..,” as required by § 48.028(4)(g)1.e. In particular, Jasper argues that while the County provided assistance to Sam, his siblings, and his mother, it wasn’t enough to constitute “active efforts” because that required the County to monitor Jasper’s progress and participation in services, facilitate his contact with his children, and help prepare him to take custody of his children upon his release. As Jasper put it, the County needed to make active efforts to preserve the family “over the long haul—not just while Jasper was incarcerated” by investing in and supporting him as Sam’s future custodial parent after his release from incarceration. (¶¶25-27).

The court of appeals finds no authority for Jasper’s claim that whether the County made “active efforts” is judged based on the long-term prospects for the parent to take custody; rather, what matters is whether the County’s efforts before the dispositional hearing:

¶28     …. Pursuant to Wis. Stat. § 48.355(2)(b)6v., the circuit court was required to determine at the time of the dispositional hearing whether the County had made active efforts to prevent Sam’s removal from the family home and whether those efforts had been unsuccessful. As of that date, Jasper was unavailable to care for Sam due to his incarceration, and the record shows that Jasper would not have been available to care for Sam in his home for months thereafter. As a result, the County could make no efforts at that time to assist Jasper in preventing Sam’s removal from Jasper’s home.

¶29     Further, to avoid overwhelming [Sam’s mother], the County staggered the return of all of the children to the family home. Sam, due in part to his higher care needs, is the last child in out-of-home placement. Jasper does not argue that the County failed to prove at the dispositional hearing that it made active efforts to return Sam to [his mother’s] home.

Jasper also criticized the County’s “minimal” efforts to arrange for Jasper to have contact with Sam, but the court concludes the record shows it did what it could given the County’s efforts to provide services were “significantly hindered” by the pandemic and Japser’s transfers” between various correctional institutions as well Jasper’s own some-time refusals to cooperate. (¶¶30-32).

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