ICWA at the Colorado Supreme Court
The Colorado Supreme Court issued its decision in People in Interest of My.K.M. v. V.K.L., 2022 CO 35 on June 27, 2022.* In this case, the Colorado Supreme Court clarified the “active efforts” standard in the Indian Child Welfare Act (ICWA) for application in future cases.
By way of brief background, ICWA is a remedial federal statute enacted in the late 1970s. It targets the historic use of state child welfare systems (most notably, child welfare agencies and state courts) to break up Native American families. Such systems were, in part, responsible for filling the horrific, abusive, and genocidal Indian boarding schools with children separated from their parents, their tribes, and their culture. One of the ways the ICWA seeks to arrest and remedy this wrong is by applying higher procedural and substantive standards before an Indian family may be separated. The ICWA also requires state agencies to prefer Indian families for foster care placement.
One of those substantive protections for Indian families is the application of the “active efforts” standard. Before a state court may terminate a parent’s rights to an Indian Child, it must make active efforts to rehabilitate the parent, solve the problems that led to the state’s intervention in the family, and reunite the family.
The My.K.M. case has a tortured factual and procedural history, most of which is irrelevant to the disposition of the case at the Supreme Court. The important takeaways are:
The case first opened in October 2016 due to Mother and Father’s substance abuse and neglect of the children. The parents initially did well with treatment, and the children returned home.
In 2018, after Father committed domestic violence against Mother, Mother abandoned the children and relapsed.
Mother asked for help beyond the substance abuse treatment that the agency was offering, but the agency was focused primarily on substance abuse and provided few services for goals like income and employment.
Because the parents continued to struggle and could not safely parent, the agency moved to terminate their rights, and the trial court granted the motion. A division of the Court of Appeals held that the case should have been governed by the ICWA from the beginning and then further determined that the agency did not make “active efforts” to rehabilitate Mother because it did not provide her direct employment services when she requested them.
The Colorado Supreme Court took the case, clarified the “active efforts” standard, and reversed the Court of Appeals. It held that the “active efforts” standard is a higher standard than in non-ICWA cases and that agencies must make “affirmative, active, thorough, and timely” efforts to achieve each goal of the treatment plan. It held, however, that when reviewing an agency’s efforts, a court should look at the “totality of the circumstances” surrounding the department’s efforts to see if such efforts were “active.” Indeed, the Court held specifically that agencies need to retain discretion to prioritize services based on a parent’s particular need.
The Supreme Court went back to the record and, applying the totality of the circumstances test, determined that the agency did enough here in total to satisfy the test. The Court then remanded the case to the Court of Appeals to consider arguments it did not consider the first time.
In ruling how it did, however, the Supreme Court also rejected (or at least implicitly rejected) proposed doctrines that would have further diluted the substantive power of the ICWA. It ensured that the language of the test matches the federal regulations and took seriously the history of the child welfare system’s treatment of Native families. While the opinion does not (nor could it) provide perfect clarity on the “active efforts” test, it does resolve some confusion among the trial and appellate courts on the language of the standard and the method of its application. Now it will be the job of the trial and appellate courts to apply and more crisply define the totality of the circumstances test through resolution of individual cases.
The Colorado Supreme Court heard another ICWA case in mid-June regarding the notice requirements under the statute. And the Supreme Court of the United States is slated to decide whether the ICWA violates either anti-commandeering or equal protection principles in its next term. The history and remedy for of this nation’s treatment of indigenous people will be decided by courts for the foreseeable future. Watch this space.
* Disclosure: Joel Pratt of the Law Office of Dailey & Pratt was counsel of record for Mother in this case. His comments are purely his and do not represent his client’s position, the position of his firm, nor the position of the Office of Respondent Parents’ Counsel. They also should not be construed as legal advice nor as an indication of any future litigation strategy.
 This piece uses both the terms “Native American” and “Indian.” While the author understands that “Native American” is more descriptive and politically correct, the word “Indian” has a technical legal meaning and is the word used in the ICWA, so when describing the law, the author uses the legal term of art.