Clarifying “Active Efforts” Under ICWA and the Presumptive Termination Rule in Montana Dependency Cases

Introduction

Matter of D.L.L. & J.T.L., 2025 MT 98 (Mont. 2025), is a Supreme Court of Montana decision that addresses two central questions: first, what constitutes sufficient “active efforts” under the Indian Child Welfare Act (ICWA) when placing enrolled Indian children outside their birth home; and second, whether the District Court abused its discretion in terminating a mother’s parental rights after more than two years of state custody. The case involves two Little Shell Tribe–enrolled children, D.L.L. (born December 2018) and his older brother J.T.L. (born April 2016), removed repeatedly due to parental substance abuse, unstable housing, and safety concerns. The Department of Public Health and Human Services placed the children with non-Native foster parents, enrolled J.T.L. in a private Christian school, and ultimately moved to terminate the mother’s rights when she failed to complete her court-ordered treatment plan.

Summary of the Judgment

The Montana Supreme Court unanimously affirmed the Eighth Judicial District’s rulings. On ICWA placement, the Court held that the Department made “active efforts” by consulting the Little Shell Tribe and other nearby tribes, pursuing every potential kin or Native placement, and documenting safety concerns that nullified each proposed relative placement. On the school issue, the Court found that the Department had engaged the Tribe’s ICWA specialist, the child’s therapist, and the foster family to balance cultural instruction against the child’s emotional and academic needs, thus satisfying ICWA’s mandate even though the school was a private Christian institution. Finally, the Court upheld termination of the mother’s parental rights under § 41-3-609, MCA, finding no abuse of discretion: the children had been in state custody for more than 15 of the past 22 months, the mother repeatedly failed her treatment plan, and reunification was unlikely in the foreseeable future.

Analysis

Precedents Cited

• In re L.D., 2018 MT 60: Defines abuse of discretion in parental-rights terminations.
• In re L.H., 2021 MT 199: Discusses ICWA’s purpose and placement preferences.
• Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989): Emphasizes the importance of protecting tribal relationships.
• In re B.Y., 2018 MT 309: Explains “active efforts” under 25 U.S.C. § 1912(d) and 25 C.F.R. § 23.2.
• In re K.L.N., 2021 MT 56: Clarifies additional ICWA burdens for termination hearings.
• In re A.B., 2020 MT 64: Holds the court must give primary consideration to the child’s physical, mental, and emotional needs.
• Anders v. California, 386 U.S. 738 (1967): Governed an unrelated dismissal of the father’s appeal.

Legal Reasoning

The Court’s reasoning unfolds in three parts:

1. ICWA “Active Efforts” for Placement: ICWA requires “active efforts” to prevent the breakup of an Indian family when removing a child. The Department demonstrated affirmative, timely, and culturally informed attempts to place the children with:
   • Father (rejected for safety reasons);
   • Mother’s brother, sister, half-sister, cousin, nephew—each rejected or unavailable for documented safety or eligibility concerns;
   • Little Shell Tribe–approved or other tribal foster homes (tribe had no vacancies).
   The Court confirmed that thorough documentation of each step, plus tribal consultation, satisfied ICWA’s active-efforts mandate.
2. ICWA “Active Efforts” for Cultural & Educational Placement: ICWA also requires active efforts to enhance a child’s tribal identity. Here, the Department:
   • Contacted the Tribe’s ICWA specialist monthly;
   • Consulted with the child’s therapist, school principal, and foster family;
   • Encouraged cultural activities (bow-making, tribal books, powwow attendance under supervision);
   • Assessed the child’s academic stability and bullying at public school;
   • Created a monitoring plan for the private Christian school, with a commitment to revisit placement annually.
   Although an ICWA expert deemed this insufficient to replicate peer-based cultural immersion, the Court held these efforts, tailored to the case’s facts, met the statutory standard.
3. Termination vs. Guardianship & § 41-3-609 Standards: Under Montana law, a parent’s rights may be terminated if:
   • The child has been adjudicated a youth in need of care;
   • The parent failed an appropriate treatment plan;
   • The condition making the parent unfit is unlikely to change within a reasonable time;
   • Under ICWA, continued custody by the parent would likely cause serious harm (expert testimony required).
   J.T.L. and D.L.L. had been in state custody for nearly 34 months—far exceeding the 15-of-22-month presumption period. The mother repeatedly failed substance, mental-health, parenting and housing requirements, suffered multiple relapses, remained homeless, and disengaged from services. An ICWA expert and the Department agreed that guardianship—though culturally preferable—would not ensure long-term stability because a guardianship may be dissolved if the parties return to court. The Court found termination was supported by clear and convincing evidence, was not arbitrary, and served the children’s best interests.

Impact

This decision will guide future dependency and ICWA cases in Montana—and potentially other jurisdictions interpreting 25 C.F.R. § 23.2—by:

• Affirming that documented, case-specific consultation with tribes and exploration of every relative or tribal alternative satisfies “active efforts” even if the final placement is non-kinship or outside the public school system;
• Emphasizing the need to record safety assessments and tribal communications at each stage;
• Clarifying that educational stability and emotional well-being can, in appropriate circumstances, outweigh the ideal of public-school cultural programming;
• Reiterating the strong statutory presumption in favor of termination when a child has been in state custody over 15 of the past 22 months;
• Highlighting the difference between guardianship and adoption in terms of permanence, and underscoring that a guardianship may not meet a child’s need for finality if a parent remains unlikely to remedy identified deficits.

Complex Concepts Simplified

• ICWA “active efforts”: Affirmative steps by a state agency—like phone calls, home studies, and direct collaboration with tribal authorities—intended to keep an Indian child within the family or tribe.
• Youth in Need of Care: A child adjudicated by a court to be at risk of harm due to parental neglect, abuse, or other unsafe conditions.
• Termination of Parental Rights: A judicial order severing the legal parent–child relationship, allowing adoption or other permanent placement.
• Beyond a Reasonable Doubt: The highest standard of proof, requiring the fact-finder to be firmly convinced of the truth of key factual elements.
• Qualified Expert Witness (ICWA): A specialist—often a tribal social worker, psychologist, or cultural expert—whose testimony confirms whether continued parental custody would likely harm an Indian child’s welfare.
• Presumptive Termination (Montana § 41-3-604(1)): When a child has been in state custody for 15 of the most recent 22 months, termination of parental rights is presumed to serve the child’s best interests, subject to rebuttal by clear evidence of a better alternative.

Conclusion

In Matter of D.L.L. & J.T.L., the Montana Supreme Court provides a thorough blueprint for satisfying ICWA’s “active efforts” requirement and applies Montana’s statutory presumption favoring termination after prolonged state custody. The decision underscores the necessity of meticulous tribal consultation, safety-based placement decisions, and a balanced approach to cultural and educational considerations. By affirming termination where a parent’s chronic instability persists and where guardianship cannot guarantee lasting permanence, the Court reinforces the principle that a child’s physical, emotional, and cultural needs must drive placement and permanency decisions. This ruling will serve as a key reference for practitioners, agencies, and courts as they navigate the twin demands of federal Indian-child standards and state dependency law.