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.

In re Walter W., 274 Neb. 859 (January 18, 2008)
Opinion online (last visited January 21, 2008 bgf)
An outline of the provisions of the ICWA is available at the Indian Child Welfare Law Center.