Affirmation of Active Efforts and Good Cause Deviation Under the Indian Child Welfare Act
in Matter of P.E.W., YINC (2025 MT 114)

Introduction

Matter of P.E.W., decided by the Supreme Court of Montana on June 3, 2025, clarifies two central features of the Indian Child Welfare Act (“ICWA”) in dependency and termination proceedings:

1. The nature and sufficiency of “active efforts” required to reunify an Indian child with her family before a court may terminate parental rights; and
2. The circumstances in which “good cause” may justify departure from ICWA’s placement preferences for foster care and guardianship.

The appeal arises from the Thirteenth Judicial District Court’s order terminating the parental rights of K.B. (Mother) over her daughter, P.E.W., an Indian child under ICWA. The Montana Department of Public Health and Human Services (“Department”) removed P.E.W. in October 2021 due to neglect, chemical dependency, and domestic violence concerns. Mother challenged the termination on two grounds: that the Department did not make requisite active efforts under ICWA, and that the court lacked good cause to deviate from ICWA placement preferences when approving a non-Native American foster placement. The Supreme Court affirmed the termination, holding that the Department’s extensive reunification work satisfied the “active efforts” standard and that the court properly found “good cause” for placing the child outside the statutory preference order.

Summary of the Judgment

The Supreme Court of Montana addressed two issues:

1. Whether the District Court abused its discretion in finding that the Department made “active efforts” under 25 U.S.C. § 1912(d) before terminating Mother’s parental rights; and
2. Whether the District Court erred in finding “good cause” to deviate from ICWA’s placement preferences under 25 U.S.C. § 1915(a) when it approved a non-Native American foster placement for P.E.W.

In a unanimous opinion by Justice Jim Rice, the Court held:

• The Department’s two-year program of chemical-dependency referrals, transportation to services, assistance with housing, clothing, food, mail, visitation, and frequent case-management contacts constituted active, thorough, timely, and culturally attuned efforts as required by ICWA regulations and federal–tribal guidance.
• No suitable ICWA-preferred placement (extended family, tribal foster homes or other Indian families) could be located after diligent search efforts. The child’s specialized behavioral and mental-health needs were best met in licensed, non-Native American foster homes that provided stable therapy, schooling, and crisis placements. The circumstances supported a finding of “good cause” to depart from statutory preference.

The judgment affirmed termination of Mother’s rights under § 41-3-609(1)(f), MCA (2021), and confirmed that the best interests presumption under § 41-3-604(1) MCA was met.

Analysis

1. Precedents Cited

The Court relied on and discussed key federal and state precedents illustrating the scope of ICWA’s protections and procedural requirements:

• Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989): Emphasized ICWA’s underlying policy of maintaining tribal–family bonds and tribal sovereignty in child‐welfare proceedings.
• In re D.L.L., 2025 MT 98: Held that the Department satisfied “active efforts” by working intensively with parents in treatment, housing, and visitation programs, even when reunification ultimately failed.
• In re S.B., 2019 MT 279, and In re K.B., 2013 MT 133: Confirmed that termination under both state law and ICWA requires proof beyond a reasonable doubt of parental unfitness and a qualified expert’s testimony that continued custody would likely cause serious harm.
• In re L.H., 2021 MT 199: Stressing prompt notification to the child’s tribe and formal recognition of the tribe’s right to intervene in state proceedings.
• In re C.H., 2000 MT 64, and In re M.B., 2009 MT 97: Endorsing Bureau of Indian Affairs (“BIA”) Guidelines as persuasive authority when interpreting ICWA’s placement‐preference and “active efforts” provisions.
• In re D.E., 2018 MT 196, and In re L.A.G., 2018 MT 255: Reviewing termination orders for abuse of discretion and questions of law de novo when ICWA compliance is challenged.

2. Legal Reasoning

The Court’s reasoning centered on two pillars of ICWA compliance:

1. Active Efforts (25 U.S.C. § 1912(d); 25 C.F.R. § 23.2):
   ICWA requires state agencies to undertake “affirmative, active, thorough, and timely efforts” to prevent the breakup of Indian families. The Department’s engagement included:
   • Referral to chemical‐dependency evaluations, treatment courts, and residential programs.
   • Provision of transportation, clothing, food, housing referrals, mail delivery, and bus passes.
   • Regular facilitation of parenting visits in culturally appropriate settings.
   • Coordination with the Tribe and candid communication of progress and setbacks.
   The Court held these actions—coupled with Mother’s repeated failure to maintain sobriety or stable housing—met the “active efforts” standard.
2. Good Cause to Deviate from Placement Preferences (25 U.S.C. § 1915(a); 25 C.F.R. § 23.132):
   ICWA establishes a hierarchy of preferred placements: (1) extended family, (2) other members of the child’s tribe, (3) other Indian families. A departure requires on‐the‐record findings of “good cause,” including:
   • The child’s extraordinary physical, mental, or emotional needs unmet by preferred placements.
   • The unavailability of any suitable ICWA‐preferred placement despite a diligent search.
   Here, reports of abuse in the grandmother’s home forced removal; no relative or tribal foster home was willing or qualified; and P.E.W.’s escalating behavioral and mental‐health crises demanded the resources of licensed foster homes prepared to provide individualized therapy and crisis stabilization. Those facts satisfied “good cause.”

3. Impact

Matter of P.E.W. offers practical guidance to state agencies and courts in Indian child welfare cases:

• It confirms that “active efforts” extend beyond referral paperwork to hands-on support—transport, housing assistance, and case‐management continuity over years.
• It reinforces that parental noncompliance, documented over time, may justify termination despite aggressive reunification attempts.
• It clarifies that “good cause” for non-preferred placement may rest on a combination of (a) a child’s specialized needs and (b) an exhaustive search yielding no preferred options.
• It reaffirms that tribes must be engaged early, but tribal acquiescence to termination and placement choices is a significant factor.

Future dependency and termination proceedings in Montana—and potentially other jurisdictions—will look to this decision when evaluating whether agency efforts and placement choices satisfy ICWA’s twin mandates.

Complex Concepts Simplified

• Indian Child Welfare Act (ICWA): A federal law (25 U.S.C. §§ 1901–1963) designed to keep Indian children connected to their families and tribes by imposing special procedural and substantive standards in child-welfare cases.
• Active Efforts: Robust, culturally informed services and supports designed to prevent family breakup. Examples include transportation, housing help, treatment referrals, visitation facilitation, and close coordination with the tribe.
• Placement Preferences: ICWA requires that, absent “good cause,” an Indian child be placed first with extended family, then tribal members, then other Indian families, before considering non-Indian homes.
• Good Cause: A written, on-the-record finding that a child’s best interests or extraordinary needs, or the absence of any suitable preferred caregiver, justify a departure from ICWA’s placement order.
• YINC and TLC: Under Montana law, a “Youth in Need of Care” (YINC) is a child adjudicated neglected or abused; “Temporary Legal Custody” (TLC) is the state’s provisional custody while reunification or permanency is pursued.

Conclusion

Matter of P.E.W. stands as a landmark Montana decision confirming that agencies must go well beyond minimal referrals to demonstrate “active efforts” under ICWA and that “good cause” to deviate from placement preferences can be shown when a child’s specialized needs cannot be met by any available extended‐family or tribal placements. By affirming the termination of the mother’s rights after two years of intensive but ultimately unsuccessful reunification services—and by affirming the placement of the child in specialized, licensed foster homes—the Supreme Court of Montana has provided a clear blueprint for balancing parental reunification efforts, ICWA’s protective mandates, and the best interests of Indian children.