J. Conservatorship or Termination of Parental Rights of “Indian Child”

1. Burden of Proof

If ICWA applies, the burden of proof and standards for an order placing a child in foster care (in effect a removal) or a final order seeking permanent managing conservatorship or termination of parental rights are different than under the Texas Family Code. In summary, if ICWA applies the requirements are:

a. Foster Care Placement – Clear and Convincing Evidence

No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(e). The state must also show active efforts were made to provide remedial services and rehabilitative programs and that those were unsuccessful in preventing removal. 25 U.S.C. § 1912(d)

b. Termination of Parental Rights – Evidence Beyond a Reasonable Doubt

Including qualified expert testimony that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and active efforts to provide remedial and rehabilitative services to prevent the breakup of the Indian family were made but proved unsuccessful. 25 U.S.C. § 1912(d) and (f). Note that in most jurisdictions, the findings for termination of parental rights under the Texas Family Code must be made by clear and convincing evidence and the ICWA findings are made by evidence beyond a reasonable doubt. Courts under the 14th Court of Appeals (Houston) are the exception to this rule, where only the ICWA findings are to be made in the final order of termination.

2. Causal Relationship

Whether a foster care placement or termination of parental rights is at issue, there must be evidence of “a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child." 25 C.F.R. § 23.121(c).[81] Without a causal relationship, evidence of "community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child." 25 C.F.R. § 23.121(d).

3. Active Efforts

There must be evidence of “active efforts” to alleviate the cause for removal, taking into account the prevailing social and cultural conditions and way of life of the “Indian child's” Tribe. 25 U.S.C. § 1912(d). 25 C.F.R. §23.120.[82] Active efforts are intended primarily to maintain and reunite an “Indian child” with his or her family or Tribal community and constitute more than reasonable efforts.

“Active efforts” is generally construed to require more than the “reasonable efforts” otherwise required for children in foster care. The Regulations offer detailed examples of what constitutes active efforts:

•   Conducting a comprehensive assessment of the circumstances of the “Indian child's family,” with a focus on safe reunification as the most desirable goal;

•   Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;

•   Identifying, notifying, and inviting representatives of the “Indian child's” Tribe to participate in providing support and services to the “Indian child's” family and in family team meetings, permanency planning, and resolution of placement issues;

•   Conducting or causing to be conducted a diligent search for the “Indian child's” extended family members, and contacting and consulting with extended family members to provide family structure and support for the “Indian child” and the “Indian child's” parents;

•   Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child's Tribe;

•   Taking steps to keep siblings together whenever possible;

•   Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the “Indian child” during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;

•   Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the “Indian child's” parents or, when appropriate, the child's family, in utilizing and accessing those resources;

•   Monitoring progress and participation in services;

•   Considering alternative ways to address the needs of the “Indian child's” parents and, where appropriate, the family, if the optimum services do not exist or are not available; and

•   Providing post-reunification services and monitoring. 25 C.F.R. § 23.2.

The Regulations specify that active efforts must be documented in detail in the record. 25 C.F.R. § 23.120(b).

Courts have concluded that “active efforts” does not require “absolutely every effort.” In re L.M.B., 54 Kan. App.2d 285 (Kan. Ct. App. 2017). However, in Children, Youth & Families Dep't v. Yodell B., the court found merely creating a service plan and referring the father to parenting classes without providing more direct assistance did not constitute active efforts. State ex rel. 367 P.3d 881 (N.M. Ct. App., December 21, 2015). See case notes at the end of this chapter for additional examples of what does and does not constitute active efforts.