## Facts

- The South Dakota Department of Social Services (DSS) removed J.S.B., Jr. from his parents and initiated state abuse-and-neglect proceedings.
- J.S.B., Jr. was an “Indian child,” making the Indian Child Welfare Act (ICWA) applicable to the termination-of-parental-rights (TPR) case.
- DSS offered the father remedial and reunification services, including services aimed at substance abuse and other parenting deficiencies.
- The trial court found aggravated circumstances of neglect/abuse.
- Relying on the Adoption and Safe Families Act (ASFA) aggravated-circumstances provisions, the trial court concluded the State was not required to continue reunification efforts and held ASFA displaced ICWA’s “active efforts” requirement.
- The trial court terminated the father’s parental rights, and the father appealed.

## Issues

1. Whether ASFA’s aggravated-circumstances provisions preempt or displace ICWA’s requirement that the State make “active efforts” to prevent the breakup of an Indian family before terminating parental rights.
2. Whether the State, on this record, made the ICWA-required “active efforts” and proved those efforts were unsuccessful, permitting termination.

## Decision

- The South Dakota Supreme Court held ASFA does not preempt or displace ICWA in cases involving an Indian child.
- The court held ICWA’s “active efforts” requirement applies even when ASFA would excuse “reasonable efforts” because of aggravated circumstances.
- The court concluded the record supported a finding that DSS made active efforts and that they were unsuccessful.
- The court affirmed the TPR order, treating the trial court’s preemption rationale as error that did not require reversal because the stricter ICWA standard was satisfied on the facts.

## Legal Principles

- In an Indian-child TPR proceeding, ICWA’s protections apply and are not eliminated by ASFA aggravated-circumstances provisions.
- ICWA requires “active efforts” to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and the State must show those efforts proved unsuccessful before TPR may be ordered.
- ASFA’s “reasonable efforts” framework and exceptions do not create an ICWA exception; courts should read the statutes to operate together, with ICWA imposing additional, case-specific federal requirements in Indian-child matters.
- Statutory displacement by implication requires clear congressional intent; absent such clarity, ICWA remains controlling where it applies.
- An appellate court may affirm a TPR order despite legal error in the trial court’s rationale if the record supports the necessary ICWA findings.

## Conclusion

The South Dakota Supreme Court rejected the view that ASFA’s aggravated-circumstances provisions eliminate ICWA’s active-efforts duty in Indian-child termination cases, but affirmed termination because the State’s reunification efforts satisfied ICWA and were unsuccessful.


People ex rel. J.S.B., Jr., 691 N.W.2d 611 (S.D. 2005)