What are "active efforts" under the Indian Child Welfare Act (ICWA)?

The State of South Dakota is required to provide "active efforts" to families, and the court will be asked to determine whether "active efforts" have been made.  The exact definition of "active efforts" is left open under ICWA to accommodate individual case decisions.  (However, federal guidelines do exist - Federal Register, Vol. 44, No. 228, Monday, November 26, 1979).

ICWA mandates that South Dakota make "active efforts" in two areas:

  1. Provide services to the family to prevent removal of an Indian child from his or her parent or Indian custodian
  2. Reunify an Indian child with his or her parent or Indian custodian after removal.

A fundamental consideration in applying "active efforts" is active and early participation and consultation with the child's tribe in all case planning decisions.  Also, "active efforts" is more than just "reasonable efforts."  For example, reasonable efforts might be only a referral for services, but "active efforts" would be to arrange for the best-fitting services and help families engage in those services.

Brooke Swier Schloss
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Family Law and Estate Planning attorney helping families across South Dakota plan and protect their loved ones