Active Efforts and Burden of Proof ICWA Case out of NM Court of Appeals

Here.

The court held that the burden for active efforts is clear and convincing evidence. In addition, that active efforts consists of more than reasonable efforts, citing to the 2015 Guidelines and other state court decisions. In this case, the court held there was not clear and convincing evidence that the state provided active efforts:

The testimony at the TPR demonstrates that the Department took the affirmative steps of meeting with Father to create a treatment plan, and referring Father to a parenting class. It appears the Department pointed Father in the direction of service providers, but did little else to assist Father in implementing the treatment plan. Father was not offered services aside from the one parenting class. The Department took a passive role by shouldering Father with the burden of not only independently locating and obtaining services, but also ensuring the service providers were communicating with the Department about his progress.