Opposition Brief — Debra F. v. Wisconsin

B. Fundamental Tenets of Statutory

Construction Prevent Reading the Highest

Standard of Proof inte 25 U.S.C. 1912(d).

Petitioner's policy arguments that Congress intended

that active efforts should be proven beyond a reasonable double

ignore the basic rule of statutory construction that “when

Congress includes particular language in one section of a

Statute but omits it in another section of the same Act, it is

generally presumed that Congress acts inientionally and

purposely in the disparate inclusion or exclusion.” Russello v.

United States, 464 U.S. 16 (1983). Petitioner argues that

because Congress explicitly requires the proof beyond a

reasonable doubt of the “serious physical of emotional

damage” determination in 25 U.S.C. §1912(f), trial courts

should presume that it intended the same standard of proof for

the “active efforts” determination. However, as the Wisconsin

Court of Appeals stated, “if Congress had wanted the higher

burden of proof to apply to the active efforts determination, it

certainly could have so specified” (P-App. A-10).

The Petition should be denied because Congress could

have assigned the criminal burden of proof to the active efforts

determination but declined. The plain language of the statute

and apparent Congressional intent do not support revision of

the statute.

Cc. A Proper Analysis of the Three-Part Test

Articulated By This Court Supports an

Application of the Clear and Convincing

Evidence For the Active Efforts

Determination.

This Court established clear and convincing evidence

as the correct standard of proof for termination of parental

rights cases in its decision in Santosky v. Kramer, 455 U.S. 745

(1982). As noted by Petitioner's Brief, the Santosky Court

applied the three-part due process analysis articulated in

Mathews v. Eldridge, 424 U.S. 319 (1976). _ However,

Petitioner ignores the legitimate interests of the child ina TPR

case and understates the countervailing state interests in

preserving the standard of proof established by this Court.

Congress’ enactment of the Adoption and Safe Families

Act of 1997, Pub. L. 105-89, reflects Congress’ concern for

providing permanent homes for foster children as soon as

possible after reunification efforts fail. Among other things,

the Act requires the _ ates, under threat of financial penalty,

file for termination o} perental rights whenever a child has been

placed out of the parental home for fifteen of the preceding

twenty-two months, absent certain exceptions.’ 42 U.S.C.

§675(SE). At the time this Court decided Santosky, this

federal concern for permanence for foster children was not so

clearly part of the equation. When Petitioner argues that in an

ICWA case, the interests of a parent are even more

commanding than in other TPR cases, she ignores the

heightened federal interests of children who have spent

unreasonable time in the impermanence of foster care.

The strict federal time limits imposed upon states for

filing TPR cases has also altered the equation for analyzing the

State's interest in preserving the middle burden of proof

established by Santosky. With the enactment of ASFA,

permanence and stability for children is now also a compelling

State interest. Ratsing the standard-of-proof bar would hamper

‘None of the exceptions (child placed with a relative,

termination of parental rights not in child's best interests, reasonable

efforts not made to reunify family, 42 U.S.C. 675(SK Ei iiiin)) applied

im this case

the legitimate government interest in seeking permanent homes

for children languishing in foster care. To ascribe to the active

efforts determination the highest burden of proof could also

impose a serious financial burden upon government in the form

of continued foster care payments in cases where the high

standard of proof discourages TPR filings or hinders the

prosecution of meritorious TPR petitions. Petitioner errs when

she claims that the State can articulate no greater interest in

preserving the standard of proof this Court established in

Santosky.

Petitioner’s attempt to apply more stringent due process

scrutiny to the standard of proof that this Court undertook in

Santosky is ill-conceived. Absent any declaration of intent by

Congress to impose the highest standard of proof to the active

efforts requirement, this Court need not revisit Santosky and

the Wisconsin courts application of its holding.

il. THE CLEAR TREND IN STATE COURT

DECISIONS IS TO ASCRIBE THE MIDDLE

BURDEN OF PROOF TO THE “ACTIVE

EFFORTS” REQUIREMENT. ‘

Contrary to Petitioner’s suggestion, there is no

significant current conflict among state courts regarding the

standard of proof for the active efforts determination. The

South Dakota Supreme Court is the only state court of last

resort reviewing a TPR case that held that the active efforts

requirement must be proved beyond a reasonable doubt. /n the

Interest of S.R., 323 N.W.2d 885 (S.D. 1982).’ The other state

* The other state Supreme Court case cited by Petitioner, /n the

Matter of G.S. and SS, 59 P.3d 1063 (Mt. 2002), is nota TPR case; thus,

the language in the opinion is dicta with regard to the standard of proof in

TPR cases.

Supreme Courts that have faced this issue in a TPR case have

all found the appropriate burden of proof to be clear and

convincing evidence or less. See /n re Annette P., 589 A.2d

924 (Me. 1991), K.N. v. Alaska, 856 P.2d 468 (Alaska 1993),

In the Matter of Baby Boy Doe, 902 P24 477, 482 (Ida. 1995),

and /n re Interest of M_S., 624 N.W.2d 678 (N.D. 2001). The

Alaska Supreme Court relied upon an analysis of legislative

history to reject the criminal standard of proof, and then made

note of the absence of statutory analysis on by the courts that

supported this burden of proof.’ K.N. v. Alaska, 856 P.2d at

476.

Furthermore, the better reasoned and more recent lower

state court decisions have also rejected the highest burden of

proof for the active efforts determination. See /n re Michae!

G., 63 Cal. App. 4” 700, 74 Cal. Rptr. 2d 642, 648 (Cal. Ct.

App. 1992),* in re Dependency of A.M., 22 P.2d 828, 833-34

(Wash. Ct. App. 2001), Jn re Cari B., 763 N.E.2d 917 (II. App.

2002).

Significantly, all of the lower state court decisions cited

by Petitioner pre-date the federal Adoption and Safe Families

Act of 1997, Pub. L. No. 105-89. See In the Matter of M.S.S.,

465 N.W.2d 412,418 (Minn. Ct. App. 1991), Jn re L.N.W., 457

The totality of the South Dakota Supreme Court's analysis

was: “we assume that the same burden required to prove serious

emotional or physical damage under §1912(f), beyond a reasonable

doubt, would also be required to prove active efforts.”

* This California court was one of the few to reference a rule of

Statutory construction im its analysis. “when the Legislature has employed

a term in onc place and has excluded it in another, it should not be

implied where excluded (Citations omitted) If Congress meant for the

‘active efforts’ determination to be supported by evidence beyond a

reasonable doubt, it coulod have casily said so.” 74 Cal. Rotr. at 648.

10

N.W.2d 17, 19 (lowa Ct. App. 1990), Jn the Matter of Kreft,

148 Mich. App. 682, 693, 384 N.W.2d 843, 849 (1986).

Addressing the national problem of children languishing years

in foster care without permanent homes, the Act, among other

things, requires states to seek termination of parental rights for

children who have been in foster care for fifteen of the previous

twenty-two months, unless certain exceptions apply. 42 U.S.C.

675(5)(E) (2003). In light of this federal policy to ensure

timely terminations of parental rights and adoptions for

children, it is highly likely that were this standard of proof

issue to arise again in jurisdictions that have not addressed it in

fourteen years or more, those jurisdictions would follow the

national trend to the middle burden of proof.

Review of this issue by the United States Supreme

Court is not necessary because the natural development of the

law in the various jurisdictions around the country is highly

likely to continue the trend toward uniformity among the states

on the issue presented by the Petition.

> This writer has found only one lower state court decision

rendered after the enactment of the Adoption and Safe Families Act that

support the highest burden of proof. /n the Interest of RL, 961 P 2d 606,

609 (Colo. App. 1998), noting that (at that time) most courts had

mandated the highest burden of proof.

CONCLUSION

Based upon the foregoing, the Guardian ad Litem for

Branden respectfully requests that this Court deny the

Petition for Writ of Certiorari.

Respectfully submitted this 30" day of September,

2005.

MICHAEL J. VRUNO, JR.

Gu irdian ad Litem

LEGAL AID SOCIETY

OF MILWAUKEE, INC,

Guardian ad Litem Division

1020! Watertown Plank Road

Milwaukee, WI £5226

EXCERPT FROM RECOMMENDED GUIDELINES

FOR STATE COURTS:

INDIAN CHILD CUSTODY PROCEEDINGS

44 Fed. Reg. 67,592:

D.2 Efforts To Alleviate Need To Remove Child From

Parents or Indian Custodians

Any party petitioning a state court for foster care

placement or termination of parental rights to an Indian child

must demonstrate to the court that prior to the

commencement of the proceeding active efforts have been

made to alleviate the need to remove the Indian child from

his or her parents or Indian custodians. These efforts shall

take into account the prevailing social and cultural

conditions and way of life of the Indian child’s tribe. They

shall also involve and use the available resources of the

extended family, the tribe, Indian social service agencies and

individual Indian care givers.

D.2 Commentary

This section elaborates on the meaning of “breakup

of the Indian family” as used in the Act. “Family breakup”

is Sometimes used as a synonym for divorce. In the context

of this statute, however, it is clear that Congress meant a

situation in which the family is unable or unwilling to raise

the child in a manner that is not likely to endanger the child’s

emotional or physical health.

This section also recommends that the petitioner take

into account the culture of the Indian child’s tribe and use

the resources of the child’s extended family and tribe in

attempting to help the family function successfully as a home

A-l

for the child. The term “individual Indian care givers” refers

to medicine men and other individual tribal members who

may have developed special skills that can be used to help

the child's family succeed.

One commenter recommended that detailed

procedures and criteria be established in order to determine

whether family support efforts had been adequate.

Establishing such procedures and requirements would

involve the court in second-guessing the professional

judgment of social service agencies. The Act does not

contemplate such a role for the courts and they generally

lack the expertise to make such judgments.

A-2