Interest of M.D. ( 2018 )

#28545-a-DG
2018 S.D. 78IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
The People of the State of South Dakota in the
Interest of M.D., K.D., R.T.A., M.E.S. and
M.C., Minor Children and Concerning T.C., C.D., M.E.S. and
S.T.A., Respondents and Rosebud Sioux Tribe and
Cheyenne River Sioux Tribe, Intervenors.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE SUSAN M. SABERS
Judge
****
MARTY J. JACKLEY
Attorney General
Pierre, South Dakota
LAURA RINGLING
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota Attorneys for petitioner and
appellee State of South Dakota.
RICHARD L. JOHNSON
Sioux Falls, South Dakota Attorney for respondent and
appellant S.T.A.
****
CONSIDERED ON BRIEFS
ON SEPTEMBER 14, 2018
OPINION FILED 11/20/18
#28545
GILBERTSON, Chief Justice
[¶1.] S.T.A. (father) appeals a dispositional order terminating his parental
rights over R.T.A. (child), his four-year-old son. We affirm.
Facts and Procedural History
[¶2.] T.C. (mother) is twenty-five years old and is an enrolled member of the
Cheyenne River Sioux Tribe. At the time this matter began in 2016, mother had
four children by three different fathers. Mother’s two older children were four-year-
old twins. Mother’s third child, the subject of this case, was about two. Her fourth
child was around a year old. Mother was unemployed, homeless, and moved around
with her family and occasional boyfriends between Huron, Mitchell, and Eagle
Butte. Mother and the family lived in government-assisted housing, roomed with
friends, and moved in with mother’s mother in Eagle Butte for a time. Eventually,
the family stayed with the sister of one of mother’s boyfriends in Sioux Falls.
[¶3.] Mother’s fifth child was born on November 11, 2016 in Sioux Falls.
Mother’s cord screening was positive for THC, amphetamine, and
methamphetamine and the matter was reported to the South Dakota Department of
Social Services (DSS). Mother admitted to DSS and law enforcement that she was
smoking methamphetamine the day before the child’s birth.
[¶4.] Mother’s four older children, including child, were still staying with
mother’s boyfriend’s sister. Law enforcement visited the sister’s residence and
removed the children from her care. The sister initially refused the officers entry
into her home, but ultimately brought the children out to them. The children were
-1-
#28545
poorly dressed and filthy. All five of the children were eventually placed into DSS
custody due to mother’s drug use and the lack of appropriate caretakers for them.
[¶5.] A petition alleging abuse and neglect of the children was filed on
November 23, 2016. Because of the children’s Native American heritage, notice was
provided to the Rosebud Sioux Tribe and to the Cheyenne River Sioux Tribe
pursuant to the Indian Child Welfare Act (ICWA).1 Both tribes filed motions to
intervene that were granted by the trial court. DSS remained in contact with the
tribes and provided them with documentation and updates throughout the
remainder of the case.
[¶6.] After removal of the children, mother began to go through the steps of
a case plan requiring chemical dependency evaluations, treatment, urinalyses, and
establishment of stable housing. DSS initially had difficulty contacting any of the
children’s fathers.
[¶7.] DSS made contact with father in December 2016. Father was on
probation for simple assault and escape offenses and was working in Pierre. When
DSS asked father about visiting child, he told the worker that he would get back to
her. When the worker offered to bring child to Pierre to visit, father replied that it
was unnecessary because he would be moving to Sioux Falls and could see child
then. DSS did not hear from father again for about three months.
1. Father is affiliated with the Cheyenne River Sioux Tribe, but is not an
enrolled member. One of the other fathers is an enrolled member of the
Rosebud Sioux Tribe and his child with mother is eligible for enrollment in
that tribe. Another father is an enrolled member of the Standing Rock Sioux
Tribe, but his two children with mother do not have a sufficient blood
quantum for membership in that tribe. All of the children are eligible for
enrollment in the Cheyenne River Sioux Tribe.
-2-
#28545
[¶8.] The children were adjudicated abused and neglected as to both parents
in early 2017. Father did not appear for his adjudicatory hearing. In June 2017,
DSS learned of father’s incarceration in the Minnehaha County Jail on a probation
violation for noncompliance with 24/7 monitoring. DSS routinely met with father
while he was incarcerated to update him on child and to inform him of the services
available to him in jail. DSS also arranged visitations with child. Father indicated
that he was completing chemical dependency treatment at the jail. Meanwhile,
mother completed outpatient treatment, relapsed, and failed to begin aftercare as
recommended. Mother continued to struggle with methamphetamine and
marijuana use throughout the duration of the case and never did establish stable
housing.
[¶9.] In October 2017, Father received a four-year sentence on his probation
violation and was returned to the penitentiary. In addition, federal charges were
pending against him for arson and third-degree burglary on the Cheyenne River
Sioux Reservation. The dispositional hearing was set for that October but was
continued by stipulation of the parties until January 2018. Father’s return to the
penitentiary led to missed visitations with child until father completed paperwork
necessary to resume visitations shortly before the dispositional hearing.
[¶10.] The dispositional hearing took place on January 11 and 12, 2018.
Mother appeared for the start of the hearing but left after lunch and did not appear
for the remainder of the proceedings. Mother was represented by appointed counsel
throughout the hearing. Father appeared personally and by appointed counsel.
Appointed counsel also appeared for the children. The Rosebud Sioux Tribe
-3-
#28545
appeared and participated by telephone through its agent. Despite proper notice,
the Cheyenne River Sioux Tribe did not participate in the dispositional hearing.
The hearing included testimony by a qualified ICWA expert.
[¶11.] The trial court rendered an oral decision on January 17, 2018, that was
later incorporated by reference in its findings of fact and conclusions of law. The
court found that, despite the provision of numerous services to mother and father,
mother’s drug use, homelessness, and lack of resources to meet the children’s needs
persisted. The court further found that father failed to act as a caregiver to child in
any meaningful way. The court went on to conclude that: the parents’ continued
custody of the children would likely result in serious emotional or physical damage
to them; active efforts were made to prevent the breakup of the family, but were
unsuccessful; and termination of all parental rights was the least restrictive
alternative in the children’s best interests. The court filed its findings of fact,
conclusions of law, and dispositional order terminating all parental rights on
January 31.2 Father appeals.
Issue
[¶12.] Whether the trial court erred in terminating father’s parental
rights because DSS failed to make active efforts to prevent the
breakup of the Indian family.
Standard of Review
[¶13.] Termination of parental rights in an ICWA case requires a showing of
“active efforts . . . to prevent the breakup of the Indian family[.]” People ex rel.
2. Because of uncertainty over the paternity of one of the children, the parental
rights of the father of that child were terminated in a later order designating
the father as “unknown.”
-4-
#28545
J.S.B., Jr., 2005 S.D. 3, ¶ 15, 691 N.W.2d 611, 617 (quoting 25 U.S.C. § 1912(d)
(1978)). Active efforts must be proven “beyond a reasonable doubt.” People ex. rel.
S.H.E., 2012 S.D. 88, ¶ 19, 824 N.W.2d 420, 426 (quoting People ex rel. J.I.H.,
2009 S.D. 52, ¶ 17, 768 N.W.2d 168, 172). “[W]hether active efforts were provided
. . . is a mixed question of law and fact subject to de novo review” by this Court. Id.
¶ 18, 824 N.W.2d at 425 (quoting People ex rel. P.S.E., 2012 S.D. 49, ¶ 15, 816
N.W.2d 110, 115).
Analysis
[¶14.] Father argues that active efforts were not provided because DSS did
not make active efforts to place child with his Native American family on the
Cheyenne River Reservation. Instead, after removing the children from mother’s
care, DSS placed them in non-Native American foster care in the Sioux Falls area
where they remained for the duration of the case.3 Father argues that this violated
ICWA placement preferences4 set forth as follows:
3. The children were initially separated into groups and placed into different
foster homes. Later, they were all placed together in one foster home.
4. We are aware of the recent decision of the United States District Court for
the Northern District of Texas holding parts of ICWA, including its
placement preferences, unconstitutional. Brackeen v. Zinke, No. 4:17-cv-
oo868-0, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018). However, the decision
may be appealed and ICWA has previously been upheld by the United States
Supreme Court. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Moreover, we are not bound by the
decision of the District Court in Texas and must presume that ICWA is
constitutional. U.S. v. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct.
594, 597, 9 L. Ed. 2d 561 (1963) (noting that Acts of Congress have “strong
presumptive validity’); State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905
(“Statutes are presumed to be constitutional[.]”).
-5-
#28545
(b) Foster care or preadoptive placements; criteria;
preferences
Any child accepted for foster care or preadoptive
placement shall be placed in the least restrictive setting
which most approximates a family and in which his
special needs, if any, may be met. The child shall also be
placed within reasonable proximity to his or her home,
taking into account any special needs of the child. In any
foster care or preadoptive placement, a preference shall be
given, in the absence of good cause to the contrary, to a
placement with—
(i) a member of the Indian child’s extended family;
(ii) a foster home licensed, approved, or specified by
the Indian child’s tribe;
(iii) an Indian foster home licensed or approved by an
authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian
tribe or operated by an Indian organization which
has a program suitable to meet the Indian child’s
needs.
25 U.S.C. § 1915(b) (2012).5
[¶15.] In support of his argument, father relies primarily on In re Welfare of
M.S.S., 465 N.W.2d 412 (Minn. Ct. App. 1991). In that case, the Minnesota Court of
Appeals held that active efforts were not proven beyond a reasonable doubt where a
father’s proposal to place his child permanently with his Native American brother
and sister-in-law was not considered by the trial court before it terminated his
5. Father also cites federal guidelines corresponding with section 1915(b) that
contain similar language on placement preferences. See Guidelines for State
Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg.
10146-02, F.2, F.3 (Feb. 25, 2015). Federal regulations continue to reflect the
same placement preferences. See 25 C.F.R. § 23.131 (2016).
-6-
#28545
parental rights.6 However, the Minnesota court distinguished M.S.S. in In re
Welfare of Children of J.B., 698 N.W.2d 160, 170 (Minn. Ct. App. 2005), noting that
it reversed and remanded the termination of parental rights in M.S.S. “where the
proposed custodians were not identified until after the trial started, but were
specific members of the child’s tribe who were licensed foster parents and
recommended to be custodians by the child’s tribe.” (Emphasis added). In contrast,
the court observed that the proposed custodian in J.B. “was found not credible,
other proposed custodians were not identified, and the child’s tribe did not endorse
the placement [the] father proposed.” Id.7
[¶16.] This case is more like J.B. than M.S.S. in terms of credibility issues,
failure to identify proposed custodians, and lack of tribal endorsement of father’s
placement proposal. Before the dispositional hearing, Father did provide DSS with
6. The State’s brief asserts that “courts across the country have been . . .
skeptical” of M.S.S.’s ruling.” However, with the exceptions of In re Welfare
of Children of J.B., 698 N.W.2d 160, 169 (Minn. Ct. App. 2005) and David S.
v. State, Dep’t of Health & Soc. Servs., 270 P.3d 767 (Alaska 2012), discussed
infra, the cases the State cites supporting that point appear to focus on the
appropriate standard of proof for active efforts. See In re Michael G., 74 Cal.
Rptr. 2d 642, 649 (Cal. Ct. App. 1998); State, ex rel. Children, Youth and
Family Dep’t v. Yodell B., 367 P.3d 881, 884 (N.M. Ct. App. 2015); In re
Dependency of A.M., 22 P.3d 828, 832-33 (Wash. Ct. App. 2001); In re Vaughn
R., 770 N.W.2d 795, 810 (Wis. Ct. App. 2009). This Court has settled that
question by adopting the reasonable doubt standard. S.H.E., 2012 S.D. 88, ¶
19, 824 N.W.2d at 426. The issue here is whether the State met the
appropriate standard of proof, not what the standard should be.
7. The Minnesota court similarly distinguished M.S.S. in an earlier 2003
unpublished opinion, noting in that case that, “unlike M.S.S. (a) in district
court, the tribe argued against mother’s proposed placement; (b) the district
court actually addressed (and rejected) mother’s proposed placement; and (c)
the tribe [was] participating in [the] appeal and continu[ing] to oppose
mother’s proposed placement.” In re Welfare of the Child of Wilson, No. C6-
02-1940, 2003 WL 21266612, at *2 (Minn. Ct. App. June 3, 2003).
-7-
#28545
the names of three of his relatives as placement options for the children. However,
only father’s sister from Pierre responded to DSS’s letters by calling in to
participate in a planning meeting. DSS attempts to follow-up with the sister were
thwarted by the disconnection of her telephone and the return of three subsequent
letters to her.
[¶17.] During the dispositional hearing itself, father presented testimony
from his great aunt who lived on the Cheyenne River Reservation. The aunt
testified that she and some of father’s other relatives from the reservation received
letters from DSS about child’s placement and were interested in custody of child.
However, the aunt also testified that the letters stated that a custodian would have
to take custody of all the children and not just child. The aunt further testified that
she telephoned DSS and was told the same thing. Therefore, none of father’s
relatives pursued custody. DSS records, however, did not show any contact by the
aunt responding to its letters of inquiry, and a copy of a DSS letter to the aunt
referred only to child and not the other children as she testified. A DSS worker also
testified that DSS was conducting a home study of the grandmother of two of the
other children to be their custodian because she replied to its letter of inquiry.
Accordingly, the trial court found “[n]o credible evidence” supported father’s
argument that his relatives were “denied placement of [child] due to a requirement
that one [custodian] accept all five children.”
[¶18.] The record also does not show that father’s aunt or other relatives were
licensed foster parents or that any of them were recommended to be custodians by
child’s tribe as were the proposed custodians in M.S.S. To the contrary, despite
-8-
#28545
notice, child’s tribe did not appear for the dispositional hearing or otherwise endorse
any placement that father proposed. Thus, like the Minnesota court in J.B., we
reject father’s argument that DSS failed to comply with ICWA placement
preferences by failing to place child with any of father’s relatives. See J.B., 698
N.W.2d at 170.
[¶19.] The State also challenges father’s premise that compliance with ICWA
placement preferences is a factor in determining whether active efforts were made
to prevent the breakup of the family. In support of its argument, the State cites the
Alaska case David S. v. State, Dep’t of Health and Social Servs., 270 P.3d 767(Alaska 2012). In that case, an incarcerated father, like father here, argued that
active efforts were not made before terminating his parental rights because Alaska’s
Office of Children’s Services (OCS)8 did not comply with ICWA placement
preferences when it placed the child at issue with foster parents instead of with the
father’s mother. Rejecting the father’s argument, the Alaska court observed that
ICWA’s placement preferences are not among the provisions listed in 25 U.S.C. §
1914 (2012) for challenging terminations of parental rights.9 David S., 270 P.3d at
8. Alaska’s agency counterpart to DSS.
9. 25 U.S.C. § 1914 (2012) provides:
Any Indian child who is the subject of any action for foster
care placement or termination of parental rights under
State law, any parent or Indian custodian from whose
custody such child was removed, and the Indian child’s
tribe may petition any court of competent jurisdiction to
invalidate such action upon a showing that such action
violated any provision of sections 1911, 1912, and 1913 of
this title.
(continued . . .)
-9-
#28545
779. The court concluded that, “[u]nder ICWA, then, a termination of parental
rights may not be invalidated by showing a violation of the ICWA placement
preferences.” Id.10
________________________
(. . . continued)
Placement preferences are contained in 25 U.S.C. § 1915 (2012).
10. The Alaska court also noted a number of additional courts addressing the
question that reached the same conclusion. See Doe v. Mann, 285 F. Supp. 2d
1229, 1240 (N.D. Cal. 2003) (“There is no evidence in the text of section 1915,
the structure of ICWA or the legislative history that Congress intended to
create a cause of action for” violation of placement preferences.); Navajo
Nation v. Super. Ct. of the State of Wash. for Yakima Cty., 47 F. Supp. 2d
1233, 1242 (E.D. Wash. 1999) (“Section 1915, while setting out the
preferences for placement of Indian children, does not expressly permit a
private cause of action” to invalidate termination decisions as section 1914
does for certain other ICWA violations.); In re Appeal in Maricopa Cty.
Juvenile Action No. JS-7359, 766 P.2d 105, 108-09 (Ariz. Ct. App. 1988)
(“Even if the Indian Child Welfare Act . . . preferred placements were
ignored, [it] is immaterial to the question whether termination based on a
failure to remedy the condition which made the out-of-home placement
necessary is appropriate.”); In re Vincent M., No. H034767, 2010 WL
2557188, at *8 (Cal. Ct. App. June 25, 2010) (“[A]ctive efforts and placement
[are] two separate, distinguishable issues.”); In re A.A., 84 Cal. Rptr. 3d 841,
863 (Cal. Ct. App. 2008) (“[W]e distinguish the issue of placement from that
of active efforts.” (citing 25 U.S.C. §1914)); In re J.W., 528 N.W.2d 657, 662
(Iowa Ct. App. 1995) (Appellant “provides no authority for her assertion that
noncompliance with section 1915 requires reversal of the trial court’s
termination order. The remedial provisions of section 1914 do not apply to
violations of section 1915.”); B.R.T. v. Exec. Dir. of Soc. Serv. Bd. N. D.,
391 N.W.2d 594, 601 (N.D. 1986) (“[I]nvalidation of a parental rights
termination may not be accomplished by showing a violation of the placement
preferences in a proceeding brought pursuant to 25 U.S.C. § 1914.”); State ex
rel. Juvenile Dep’t of Multnomah Cty. v. Woodruff, 816 P.2d 623, 625 (Or. Ct.
App. 1991) (“Failure to comply with the foster care placement preferences in
§ 1915(b) is not a basis for invalidating a court order terminating parental
rights.” (citing 25 U.S.C. § 1914)). But see In re K.B., 93 Cal. Rptr. 3d 751,
765 (Cal Ct. App. 2009) (assuming the applicability of placement preferences
to active efforts, but finding “no evidence that there was any suitable member
of the children’s extended family available for placement or any evidence that
any other member of the Choctaw Nation was available to take the
children[.]”); In re L.N.W., 457 N.W.2d 17, 20 (Iowa Ct. App. 1990) (“We do
(continued . . .)
-10-
#28545
[¶20.] The Alaska court also noted in David S. that its own prior decisions
rejected similar active efforts arguments for the reason that “[t]he relevant issue” in
termination cases is whether termination is “in the best interests of the children,
not what” happens to them after termination. Id. at 780 (quoting Jacob W. v. State,
Dep’t of Health & Soc. Servs., Office of Children’s Servs., Nos. S-12972, S-13017,
2008 WL 5101809, at *9 (Alaska December 3, 2008)). Accord Lucy J. v. State, Dep’t
of Health & Soc. Servs., Office of Children’s Servs., 244 P.3d 1099, 1120 (Alaska
2010). Thus, the court reasoned that, “placement decisions present a separate
analytical question from termination decisions” and that “[t]here is no support in
ICWA for an attempt to graft § 1915’s placement preferences onto § 1912” and its
active efforts requirement. David S., 270 P.3d at 780. This is despite Bureau of
Indian Affairs Guidelines that, in making active efforts, state agencies “involve and
use the available resources of the extended family, the tribe, Indian social service
agencies and individual Indian care givers.” Id. (quoting Guidelines for State
________________________
(. . . continued)
not necessarily disagree with the appellant’s contention that the party
seeking termination must also demonstrate that services were also offered to
the extended members of the Native American family . . ., but we need not
rule on that question for it is clear to us after reviewing the entire record that
services were offered to [the appellant’s] family as a whole.”); M.S.S., 465
N.W.2d at 419 (“[W]e conclude the trial court erred in not having required the
county to extend the focus of its efforts to the extended family and the Indian
child’s tribe.”); but see also Wilson, 2003 WL 21266612, at *2 (distinguishing
M.S.S. on the basis that the tribe in Wilson argued against the mother’s
proposed placement in the trial court, the trial court addressed and rejected
the placement, and the tribe participated in the appeal and resisted the
placement). The Montana Supreme Court has more recently endorsed David
S., noting that “[c]ourts have held that placement is a separate issue from
active efforts, and that the two issues must be analyzed separately.” In re.
K.B., 301 P.3d 836, 843 (Mont. 2013) (quoting Thea G. v. State, 291 P.3d 957,
963 (Alaska 2013)).
-11-
#28545
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,592 (November
26, 1979)).
[¶21.] Finally, the court noted in David S. that even if ICWA placement
preferences were relevant, Alaska’s OCS followed them by exploring placement
options with several of the child’s family members. 270 P.3d at 781. The court
went on to explain the ways in which those placement efforts failed and then cited
BIA guidelines defining “good cause” for departure from the placement preferences
to include the “unavailability of suitable families for placement[.]” Id. at 782
(quoting Guidelines for State Courts, 44 Fed. Reg. at 67,594, F.3(a)(iii)). The court
concluded that, “[b]ecause OCS did explore the availability of ‘suitable families,’
[the] case [fit] within this ‘good cause’ exception.” Id. (emphasis added).
[¶22.] Federal regulations continue to contain a good cause exception from
ICWA placement preferences for “[t]he unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find suitable
placements meeting the preference criteria, but none has been located.” 25 C.F.R.
§ 23.132(c)(5) (2016). DSS’s unsuccessful efforts to find a suitable placement for
child with father’s family due to the family’s lack of response are recounted above.
DSS workers also testified during the dispositional hearing to their familiarity with
ICWA placement preferences, their efforts to find a suitable placement for all the
children, and the children’s placement with non-Native American foster parents in
proximity to mother and father during the reunification phase. The DSS workers
agreed that an ideal placement would have been with Native American relatives, or
a Native American family in proximity to mother and the fathers during attempted
-12-
#28545
reunification, but none were available.11 Nevertheless, the workers testified that
their placement efforts were ongoing, that they would continue post-disposition, and
that they would include father’s family members identified during the dispositional
hearing.
[¶23.] The trial court made the following findings as to compliance with the
placement preferences:
14. The Court finds that the foster placement decisions
made for these children were made not simply for
the purpose of maintaining sibling bonding, but
also for the purpose of facilitating reunification
with the parents, and encouraging visitation and
further bonding between parents and children.
15. The Court does not find a violation of ICWA, either
intentional or otherwise, in DSS’s foster placement
of these children, and acknowledges the
performance of kinship services, which proved to be
unsuccessful. Given the decision of the Court to
terminate parental rights in this case, it continues
to be the expectation of the Court that the ICWA
placement preferences will be followed for these
children, absent a finding of good cause to support
other placements.
[¶24.] Based upon the DSS workers’ testimony and the trial court’s findings,
even if the ICWA placement preferences were relevant, DSS followed them by
exploring placement options with several of child’s family members. David S., 270
11. Licensed Native American foster parents related to one of the other fathers in
the case did volunteer at one point to be a placement option for all the
children here. However, between their own children and foster children, the
foster parents already had six children in their home, and there had already
been some supervisory problems in the home. For these reasons, the trial
court rejected the foster parents as an immediate placement option in the
months before the dispositional hearing here. A DSS worker testified during
the dispositional hearing that the foster parents were no longer interested in
being a placement option in this case.
-13-
#28545
P.3d at 781. Alternatively, because DSS explored the availability of a “suitable . . .
placement” for child with a “diligent search,” but was unsuccessful, there was good
cause for departure from the placement preferences. Id. at 782 (citing Guidelines
for State Courts, 44 Fed. Reg. at 67,594, F.3(a)(iii)). Under either view, there was
no violation of the placement preferences. Id.; 25 C.F.R. § 23.132(c)(5) (2016).
Conclusion
[¶25.] Father’s argument that DSS failed to make active efforts to prevent
the breakup of his family by failing to comply with ICWA placement preferences
and failing to place child with any of his reservation family members is without
merit because: there were credibility issues related to his proposed placements;
some proposed custodians were not identified; and child’s tribe did not endorse
father’s proposed placements. J.B., 698 N.W.2d at 170. Further, compliance with
placement preferences is generally not a factor in determining whether active
efforts were made. David S., 270 P.3d at 779-80. Finally, even if compliance with
placement preferences were a factor, DSS complied with the preferences or had good
cause to depart from them. Id. at 781-82.
[¶26.] For these reasons, there was no trial court error in terminating
father’s parental rights based upon DSS’s failure to make active efforts to prevent
the breakup of the Indian family. The trial court’s order terminating parental
rights is affirmed.
[¶27.] ZINTER,12 KERN, JENSEN, and SALTER, Justices, concur.
12. Justice Steven L. Zinter cast his vote prior to death.
-14-