available for parents who wish to reunify their families. While passive efforts might satisfy the
“reasonable efforts” standard, it is insufficient to discharge a state’s duties under ICWA’s active
efforts mandate.195 Instead, ICWA requires state social services workers to positively assist in
developing parenting skills, obtaining employment, or whatever else the parent must have to
retain custody, even if the parent shows little progress or even demonstrates a lack of interest.196
“Reunification” of the family requires a delicate balance, because it might mean the
restoration of normal relationships after a bad episode in the family’s history—or it can mean
returning a child to a known abusive family where the child will suffer repeated instances of
abuse or neglect. ICWA’s “active efforts” provision is so poorly designed that it often has the
perverse effect of exposing Indian children to a greater risk of abuse or neglect, and frequently
results in delaying or denying protection children need.
Most courts have ruled that because ICWA’s active efforts requirement is more stringent
than “reasonable efforts,” the circumstances that would ordinarily relieve the state of the
obligation to reunite the family under the “reasonable efforts” standard do not relieve the state of
the obligation to make active efforts.197 This means that while officials are not required to
reunify a non-Indian child with a family after she is removed due to parental substance-abuse
problems, or physical or sexual abuse,198 such a duty does exist with regard to Indian children.
Even incarceration of the parent does not relieve state child welfare workers of their duty to
195 See, e.g., A.A. v. State, Dep’t of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999).
196 ICWA requires that “remedial services” be provided to parents, up to and including “the bizarre undertaking of
‘stimulat[ing]’ a biological father’s ‘desire to be a parent,’” Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2563
(2013). Only after such efforts prove fruitless, and it is shown beyond a reasonable doubt that the parent lacks
interest in caring for the child, can parental rights be terminated under ICWA. See, e.g., Loren R. v. Arizona Dep't
of Econ. Sec., No. 1 CA-JV 12-0158, 2013 WL 119664, at 4 (Ariz. Ct. App. Jan. 10, 2013); In re Noah B., No.
CP00013544A, 2005 WL 648058, at 18 (Conn. Super. Ct. Feb. 16, 2005).
197 See, e.g., In re. People ex rel. J.S.B., Jr., 691 N.W.2d 611, 618 (S.D. 2005).
198 See, e.g., 42 U.S.C. § 671(a)( 15)(D) (2012); In re Interest of Ethan M., 723 N.W.2d 363, 372–74 (Neb. Ct. App.
2006); New Jersey Div. of Youth & Fam. Servs. v. A.R.G., 179 N.J. 264, 283–85 (2004).