SUMMARY: There is no exception to making “active efforts” as there is for reasonable efforts under the aggravated circumstances exception of N.R.S. 43-283.01
On September 30, 2008, Jamyia M., was removed from the home at 2 months of age after being hospitalized for a serious, non-accidental hemorrhage consistent with shaken baby syndrome when in the care of her parents. On October 3, 2008, a petition was filed alleging Jamyia was within the meaning of N.R.S. 43-247(3)(a) and in late October an amended petition was filed alleging that reasonable efforts were not required and active efforts provided unsuccessful and requesting that the parents rights be terminated. Jamyia was found to be enrolled or eligible for enrollment with the Navajo Nation and on January 29, 2009, the court found NICWA requirements to apply to the case.
During the pendency of the case, services that were offered included a comprehensive family assessment, parenting classes, a clothing voucher for Jamyia, Early Development services for Jamyia and videotaped recordings for the parents to view, CPR training for the parents. They were not allowed supervised visitation. The parents complied with everything asked of them, attended every hearing, followed Jamyia’s progress and sent her gifts. At trial, an individual testifying as an ICWA expert found that these services constituted active efforts. In February 2010, the juvenile court terminated the parents’ parental rights and found that reasonable efforts were not required under 43-283.01 due to aggravated circumstances.
The Nebraska Court of Appeals reversed and remanded the termination of parental rights. After reviewing earlier appellate findings in In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008) and In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416 (2009) of what constituted active efforts, the Court of Appeals concluded that there was not clear and convincing evidence that active efforts were provided and that those efforts were unsuccessful. Next, the Court of Appeals held that N.R.S., 43-283.01, which relieves the state from providing reasonable efforts in cases involving aggravated circumstances did not extend to NICWA cases nor did it trump the specific provisions of NICWA requiring active efforts in all cases involving Indian children.