Under § 48.415(intro.), termination of parental rights to children subject to the Indian Child Welfare Act (ICWA) requires, in addition to proof of one or more grounds for termination under subs. (1) to (10), proof of “active efforts,” as defined in § 48.028(4)(e)2., to prevent the breakup of the family as well as the unsuccess of those efforts. S.S.M., whose children are not subject to the ICWA, argues that the statute’s failure to require proof of active efforts in all TPR cases violates the right to equal protection the statute because it gives Indian parents greater protection from having their parental rights involuntarily terminated than it does non-Indian parents. The court of appeals rejects the claim.
S.S.M. makes both a facial and as-applied constitutional challenge to § 48.415. Her facial challenge fails, the court says, because she can’t show that she or other non-Indian parents are similarly situated to a parent whose child is subject to ICWA:
¶18 S.S.M. argues that she meets the basic threshold for an equal protection claim because she contends that all parents in a TPR proceeding are similarly situated because they are parents and they face the involuntary termination of their parental rights. We disagree that the two classes of parents are similarly situated. As the State points out, ICWA arises out of the child’s status under the law. Children not subject to ICWA do not have a connection to a tribe. Therefore, there is a distinct difference between parents in TPR proceedings for an Indian child or a non-Indian child.
In support of this conclusion, the court cites the specific and various ways in which access to tribal resources and services is “[e]mbedded in the ‘active efforts’ requirements in Wis. Stat. § 48.028(4)(g)” and that “[f]or a non-Indian family, there is no similar structure for the State to coordinate with … to assure cultural connections” because for an Indian child subject to ICWA, the culture connection is tied to tribal membership or affiliation. (¶19). In addition, singling out Indian tribes as subjects of specific legislation is provided for in the Constitution and supported by the history of the Federal Government’s relations with Indians, and the ICWA provides heightened safeguards for Indian children in recognition of the special relationship between the United States and American Indian nations. (¶20). Thus:
¶21 The class of parents in a TPR proceeding with a child subject to ICWA and the class of parents in a TPR proceeding with a child not subject to ICWA are fundamentally different. The Indian child’s status is derived from its connection to tribal membership, which is considered a political relationship. Accordingly, the two classes of parents are not similarly situated for purposes of equal protection and S.S.M. has failed to rebut the constitutionality of Wis. Stat. § 48.415 on its face….
Turning to the as-applied challenge, S.S.M. argues that because she and her family are African-American and not Indian, the State was not required to meet the heightened safeguards for families subject to ICWA, despite the serious concerns about inequities for African-American children and families within the child welfare system and whether more families would succeed at reunification with active efforts being provided to them. (¶24).
To the extent this is an argument that parents are treated differently because of their race, the court rejects it because the classification of Indian children is not race-based and does not violate equal protection “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians….” The heightened safeguards for children subject to ICWA is rationally tied to the federal policy preserving Indian families and therefore § 48.415 is not unconstitutional because families become subject to ICWA “not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities.” (¶24 (quoting Morton v. Mancari, 417 U.S. 535, 554, 555 (1974)). The court also reiterates that S.S.M.’s children lack a connection to a tribal authority, a fundamental difference between her cases and those involving a child subject to ICWA that means S.S.M. is not similarly situated to a parent of an Indian child facing TPR proceedings. (¶25).
Finally, S.S.M. challenges the circuit court’s decision to terminate her rights to two younger children, John and James, but not two older children, Diana and Don, whose placement was changed on S.S.M.’s motion from a foster home to F.M., S.S.M.’s mother. (¶¶3-6, 27-28). She argues the circuit court didn’t explain: (1) why terminating her rights to John and James would provide a more stable living situation when the court simultaneously concluded that termination was not in Diana and Don’s best interests; and (2) why placing John and James with her mother would not provide similar stability. The court of appeals finds the circuit court properly exercised its discretion:
¶30 …. The record reflects the importance the court placed on the continued stability for John and James if the TPR were granted. The twins had been in the same foster placement for the vast majority of their lives and their foster mother wanted to adopt them. The court expressed hope that “more stable and permanent family relationship,” would help with some behaviors the twins had exhibited. The court’s concern for “stability and permanence” also came through when it concluded that the need for stability outweighed any harm from severing S.S.M.’s parental rights.
¶31 ….[T]he record reflects the circuit court considered the best interests of each child. Its reasoning for Diana and Don differed than its reasoning for John and James due to their individual histories in out-of-home care. The circuit court highlighted the bond that existed between the twins and their foster mother,… In contrast, Diana and Don had known F.M. their entire lives and were not bonded with the proposed foster placement. The court stated that it thought Don and Diana would wish to “remain in this extended family” with F.M., but that might have been “different if they were like the twins who are bonded to their [foster mother.]”