Terminating Active Efforts: the Alaska Supreme Court Misfires in J.s. v. State

• Publication year: 2003

§ 20 Alaska L. Rev. 305. TERMINATING ACTIVE EFFORTS: THE ALASKA SUPREME COURT MISFIRES IN J.S. V. STATE

Alaska Law Review
Volume 20
Cited: 20 Alaska L. Rev. 305

TERMINATING ACTIVE EFFORTS: THE ALASKA SUPREME COURT MISFIRES IN J.S. V. STATE

MARK ANDREWS ^[*]

I. INTRODUCTION

II. THE J.S. OPINION

III. THE COURT'S ANALYSIS FAILS

A. The Court Reached the "Active Efforts" Issue Unnecessarily.

B. The Rationale in J.S. is Unsupported in Federal Law.

IV. OTHER JURISDICTIONS RESOLVE THE ISSUE

A. Minnesota: In re the Welfare of J.W.

B. Vermont: Mullin v. Phelps

C. Nebraska: In re Clifford M.

V. THE MCKUNE V. LILE OPINION

VI. ALTERNATIVES TO J.S.

VII. CONCLUSION

FOOTNOTES

This Comment evaluates the Alaska Supreme Court's decision in J.S. v. State, which held that the Department of Health and Social Services may terminate "active efforts" to reunify an Indian family where a parent has subjected the child to sexual abuse. The Comment suggests that the court's reasoning was unfounded given the guarantees of the Indian Child Welfare Act and the current state of federal law. The Comment suggests alternatives to the court's ruling to protect children while also preserving a parent's privilege against self-incrimination.

I. INTRODUCTION

In J.S. v. State, ^[1] the Alaska Supreme Court held that the Department of Health and Social Services ("Department") may, under certain circumstances, terminate "active efforts" to reunify a parent and an Indian child. ^[2] The Department's duty to make "active efforts" normally arises when it takes an Indian child into protective custody. ^[3] The Indian Child Welfare Act ("ICWA") ^[4] requires the agency to attempt reunification of the torn family. ^[5] J.S. [*pg 306] held, however, that when a parent has subjected a child to sexual abuse, the Adoption and Safe Families Act of 1997 ("ASFA") ^[6] relieves the Department of its duty to reunify. ^[7]

J.S. makes a radical, unsupported, and unnecessary departure from the guarantees of ICWA. Other states have found alternatives that protect the child, preserve the state's ability to require therapy by the parent, and yet avoid dilution of the parent's right to reunification efforts.

II. THE J.S. OPINION

In J.S., Jack, ^[8] the father of three Indian boys, was convicted of sexually assaulting his three sons and was sentenced to nineteen years in prison with four years suspended. ^[9] The Department took custody of the boys and petitioned to terminate Jack's parental rights. ^[10] The trial court found that Jack's long incarceration and the needs of his children justified this termination. ^[11]

It was undisputed that at the time of the termination the Department had failed to make any efforts to reunify Jack and his sons. ^[12] The trial court held that to avoid termination of his rights, Jack would have to admit his offense against his sons and enroll in treatment; the court then kept the record open for sixty days while the Department offered Jack a treatment plan. ^[13] The agency's treatment plan required that Jack accept responsibility for his behavior, apologize in writing to his sons, drop the pending appeals of his criminal conviction, and enroll in a sexual offender treatment program. ^[14] Jack would neither accept responsibility for the offenses nor drop the appeals. ^[15] After further proceedings, the trial court terminated Jack's parental rights. ^[16]

The Alaska Supreme Court upheld the termination and approved the discontinuance of "active efforts." ^[17] The court observed [*pg 307] that in 1997, ASFA amended the general federal requirement that the State must make "reasonable efforts" toward reunification in termination cases; ASFA allowed the state agency to stop reunification efforts when the parent subjected the child to sexual abuse. ^[18] The court concluded:

Although this case is not governed by ASFA, that act is useful in providing guidance to congressional policy on child welfare issues. It suggests that in situations of adjudicated devastating sexual abuse, such as this one, a person's fundamental right to parent is not more important than a child's fundamental right to safety. ^[19]

Therefore, the court held that "active efforts" at reunification were not required after a judicial finding that a parent subjected a child to sexual abuse. ^[20]

III. THE COURT'S ANALYSIS FAILS

A. The Court Reached the "Active Efforts" Issue Unnecessarily.

The Alaska Supreme Court has issued a long line of decisions justifying minimal reunification efforts when the parent is uncooperative. ^[21] Accordingly, the trial court in J.S. was within its discretion to require Jack to attend treatment. ^[22] However, the further requirement that Jack admit guilt was unnecessary. ^[23] If Jack refused treatment, for whatever reason, that refusal alone would justify the termination of parental rights under existing case law. ^[24]

The presence of two standards, "reasonable efforts" and "active efforts," is easily resolved given the provisions of the underlying statutes. ASFA permits a state to discontinue reasonable efforts to reunify a family ^[25] ; ICWA contains no similar permission [*pg 308] with regard to active efforts. ^[26] The usual rule of statutory construction is that the reviewing court resorts first to the plain language of the statute; if the language is unambiguous, the court need not inquire further. ^[27] To that end, the court in J.S. should have recognized that Congress intended to create two different standards for two different sets of children.

Why, then, did the Alaska Supreme Court reach the ruling that ASFA is a guide to ICWA? The key lies in a footnote. ^[28] Jack argued that when the court and the Department required him to admit to the criminal charges, the State violated his privilege against self-incrimination. ^[29] If that was in fact the case, the trial court should not have given the Department the additional sixty days to demonstrate "active efforts"; those efforts, regardless of their content, would violate Jack's constitutional privilege against self-incrimination. ^[30] Thus, the substantive content of the plan would not make a difference until the overall unconstitutionality of the plan was cured.

Instead of facing this issue directly, the Alaska Supreme Court chose to moot the constitutional issue, holding that the Department had no reunification duty at all. ^[31] In the complete absence of such a duty, the constitutionality of the trial court order ceased to be an issue. But in so ruling, the court ignored the complete dearth of authority supporting its interpretation, ignored three earlier decisions from other state appellate courts that resolved the same issue successfully, ^[32] and ignored the guidance of a United States Supreme Court opinion ^[33] issued only two weeks earlier.

B. The Rationale in J.S. is Unsupported in Federal Law.

1. Nothing Supports the Use of ASFA to Interpret ICWA.

a. The Plain Language of ICWA Settles Differences That Might Arise Between the Guarantees in ICWA and Those in Other Statutes.

ICWA provides:

[*pg 309]

In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parents or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard. ^[34]

On the facts of J.S., the guarantees to the Indian parent are lower under ASFA than they are under ICWA. Under ASFA, the state agency may sometimes end its efforts to reunify the family; ^[35] ICWA has no similar provisions. ^[36] The standard of protection is therefore stronger under ICWA. Thus, by the plain language of the federal statutes, the protections of ICWA apply. Accordingly, it is unnecessary to resort to ASFA to interpret ICWA.

b. There is No Language in ICWA or ASFA Linking the Two Laws.

When Congress wants to establish a relationship between different sets of state and federal guarantees, it does so expressly. The most notable example in this arena is the ICWA provision cited above, which assures parents of Indian children that they will have the protections of either ICWA or another applicable law, whichever is stronger. ^[37] Congress has not codified any language connecting ICWA and ASFA to alter this guarantee. In effect, the Alaska Supreme Court drew its connection out of silence. ^[38]

c. The Legislative History of ASFA Does Not Support the Supreme Court's Conclusion.

The legislative history of the 1997 modification to the "reasonable efforts" requirement shows a lack of congressional intent to use the provisions of ASFA to interpret ICWA. One of the main proponents of the 1997 bill was Senator Mike DeWine. ^[39] One of his primary concerns was that the 1980 "reasonable efforts" standard had never been defined and that this injured children who languished too long in state custody. ^[40] At the [*pg 310] time, state agencies resolved all doubts on the side of reunification, to the point where children died in foster care and otherwise risked serious injury. ^[41] In his floor testimony, Senator DeWine limited his comments to the "reasonable efforts" standard; he made no comment on ICWA, and did not draw a connection between ICWA and the pending amendments. ^[42]

In addition, the 1997 House Report...