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People ex rel J.S.B.1/5/2005
Considered on Briefs on June 1, 2004
[ .] Under the Adoption and Safe Families Act (ASFA), enacted in 1997, "reasonable efforts" to reunify a family are not required before termination of parental rights when a parent has a pattern of abusive or neglectful behavior constituting an aggravated circumstance. On the other hand, the Indian Child Welfare Act (ICWA), enacted in 1978, provides special rules for the needs of Indian children and families. ICWA requires "active efforts" to reunite families before a parent's rights may be terminated. In this abuse and neglect case, the father, a member of a federally recognized Indian tribe, appeals the termination of his parental rights. During the proceedings, the trial court ruled that ASFA "preempts" the requirements of ICWA, such that "active efforts" were not required in the circumstances. We conclude that ASFA does not override the requirements of ICWA. We affirm the termination of parental rights, however, because despite the court's erroneous ruling, the record reflects that the Department of Social Services (DSS) continued to provide "active efforts" to reunify the family, but such efforts were unsuccessful.
Background
[ .] J.S.B. was born on December 16, 1999. With both his parents being Native American, he is eligible for enrollment in the Oglala Sioux Tribe (OST), or the Cheyenne River Sioux Tribe (CRST). In July 2000, J.S.B.'s mother and father had an altercation. A deputy was dispatched to the home with a protection order that the mother had obtained against the father. The father told the deputy and a social worker that the mother was smoking marijuana daily, including during her pregnancies, and that the mother had marijuana in the home. J.S.B. was taken into custody and placed in foster care with DSS.
[ .] A subsequent investigation confirmed that the mother had been using both marijuana and alcohol and that the father had left J.S.B. in the mother's care. The investigation also revealed past occurrences of domestic violence and chemical dependency. An adjudicatory hearing was held on August 31, 2000. J.S.B. was found abused and neglected through the acts and omissions of both the mother and the father.
[ .] J.S.B. remained in foster care until December 4, 2000. On that date, he was returned to the physical custody of his father. DSS provided various services to the father, including anger management classes and parenting lessons. Full legal custody of the child was given to the father in June 2001.
[ .] In the next year, the father cared for his child, purchased a home, gave the mother visitation rights, and was gainfully employed. He took J.S.B. to sweats and sun dances, ensuring that his child became acquainted with tribal ways and ceremonies. In November 2001, the father was arrested for a domestic assault. The incident appeared to involve alcohol. In April 2002, the father was again arrested, this time for DUI. Finally, in June 2002, DSS took J.S.B. into custody when the father was found highly intoxicated and walking down the street with the child lagging 60 or 70 feet behind him. He was yelling at J.S.B., age two, to keep up with him.
[ .] Following the father's arrest, the records show the following contacts:
· On June 3, 2002, a social worker informed the father of the importance of getting a chemical dependency evaluation and also discussed ASFA with him. The worker encouraged the father to remain in touch with her.
· On June 5, 2002, the father left a phone message for the social worker asking that she contact him. The next day, the worker attempted to contact the father, but was unable to reach him. Instead, the worker left a
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