Tuesday, January 22, 2008
Case Law Development: Burden of Proof of Indian Child Welfare Act Element of "Active Efforts" to Reunite
The Nebraska Supreme Court joins those states that interpret the Indian Child Welfare Act to require only clear and convincing proof that "active efforts have been made to provide remedial services and rehabilitative programs" 25 U.S.C. 1912(d) in order to terminate parental rights. Other states have held that this element must be proven beyond a reasonable doubt. The Nebraska Supreme Court analyzes the language of the ICWA and concludes that the higher standard, mandated by the act for other elements of the ICWA, is not required for this element.
Alexander Rhoads of the Iowa Divorce & Family Law Blog reports on the Iowa Supreme Court decision in Schott v. Schott, in which the court held that a trail court could not collaterally attack the validity of a second parent adoption in a later child custody proceeding. The case involved female partners who were parents to two children: one parent was the biological parent and the other had adopted the children. In the custody proceeding following their breakup, neither party challenged the validity of the adoption, but the trial court found that the court granting the adoption had lacked subject matter jurisdiction and dismissed the case. Both parties appealed.
The Iowa Supreme Court held that the collateral attack on the prior adoption was error:
Even if the district court who issued the adoption decrees misinterpreted Iowa’s adoption statute, the adoptions are not void..... an adoption may only be collaterally attacked if the district court granting the adoption lacked jurisdiction over the person or subject matter, or on due process grounds by a natural parent. Since none of those circumstances exist, the districtcourt considering [the adoptive mother's] petition was wrong to declare the adoptions invalid.