In re N.D.M., 288 N.C. App. 554 (2023)
Held:
Reversed and Remanded
- Facts: In 2018, the juvenile was adjudicated neglected and dependent. The court determined the child was an Indian child and ICWA applied. Father was incarcerated and had his paternity established. Father was ordered to comply with a case plan including a comprehensive clinical assessment, substance use assessment, drug screens, parenting classes, and obtaining a legal means of income, transportation, and stable housing. Father was ordered no visitation. In 2019, father was released from prison but had not entered into a case plan. In 2019, father was reincarcerated and had not engaged in any services. The court had found throughout the hearings that DSS provided active efforts by communicating with the parents, establishing father’s paternity, identifying services, and monitoring the parents’ status. In 2020, DSS filed a TPR petition regarding father. Father’s rights were terminated on all 5 grounds alleged after the court found father did not complete his services, did not enter a case plan, did not participate in services while incarcerated, did not engage with DSS, and did not establish or maintain a relationship with the child. The court also found DSS made active and reasonable efforts to reunify father and child. Father appeals.
- Whether DSS provided active efforts for reunification under ICWA is reviewed de novo. Findings that relate to active efforts are more appropriately labeled a conclusion of law that are reviewed de novo. The findings do not support the conclusion that active efforts were provided.
- ICWA requires the TPR petitioner to “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.” Sl.Op. at 7; 25 U.S.C. 1912(d). Active efforts must be provided to both the Indian and non-Indian parent. “Active efforts” is defined in 25 C.F.R. 23.2. Whether the active efforts are sufficient is determined on a case-by-case basis. Although incarceration “may have a direct bearing on what active remedial efforts are possible … neither incarceration nor doubtful prospects for rehabilitation will relieve the State of its duty under ICWA to make active remedial efforts.” Sl.Op. at 10 (citation omitted). Active efforts are not passive, which is when the parent is expected to develop their own resources to work a plan. Instead, “active efforts involve assisting the parent through the steps of a case plan, including accessing needed services and resources.” Id.
- Other than the DNA test for paternity, DSS did not make efforts to contact father in any way while he was incarcerated. Creating a case plan is passive. There is no evidence DSS did anything actively to help the father with the steps of the plan or with accessing or developing resources that were necessary to complete the plan. There is no evidence that DSS communicated with father or prison staff to determine what services were available in the prison that would help father satisfy the case plan. Although father was denied visitation, there was no evidence DSS helped facilitate communication by phone or letters between father and child. When father was not incarcerated, DSS made no efforts to locate or communicate with him. Father did not thwart DSS’s efforts by showing he was unwilling to participate, as he signed and returned the paternity results from prison, attended almost every court date, requested current pictures of his child at a permanency planning hearing, and wrote a letter to the court stating DSS had not provided the pictures.
- In looking at other state court opinions, some have looked to what efforts were provided to the other, non-incarcerated parent when determining if active efforts were provided to the family. Here, the efforts provided to mother were not active efforts designed to prevent the breakup of the family.
Category:
Termination of Parental RightsStage:
ICWATopic: