In re Nicole B.

Decision Date06 July 2007
Docket NumberNo. 1378, Sept. Term, 2006.,1378, Sept. Term, 2006.
Citation175 Md. App. 450,927 A.2d 1194
PartiesIn re NICOLE B. and Max B.
CourtCourt of Special Appeals of Maryland

Nenutzka C. Villamar (Nancy S. Forster, Public Defender, on brief), Baltimore, for appellant.

Kathleen E. Wherthey (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel EYLER, JAMES R., ADKINS, KENNEY,* JAMES A., III, JJ.

Opinion by ADKINS, J.

For the first time in a reported opinion in Maryland, we are called upon to interpret and apply the requirement in the Federal Indian Child Welfare Act that the Department of Social Services take "active efforts" during CINA proceedings to prevent the breakup of an Indian family. See 25 U.S.C. § 1912; Md.Code (1973, 2006 Repl.Vol.), § 3-801 et seq. of the Courts and Judicial Proceedings Article (CJP). John B. and Wendy B., appellants, are the parents of Max B. and Nicole B. After the children were found to be children in need of assistance (CINA), the Circuit Court for Montgomery County held a permanency planning hearing and ordered the plan changed from reunification with appellants, to placement with a paternal aunt for custody and guardianship. The CINA case was then closed. Appellants now ask us to conclude that the circuit court erred in closing the CINA case and failing to make "active efforts" to prevent the break-up of the family as required by the Federal Indian Child Welfare Act (hereinafter "ICWA"). We agree with appellants' contention that the court failed to properly address the "active efforts" requirement of the ICWA. Therefore, we vacate and remand for further findings consistent with the requirements of this Act.

FACTS AND LEGAL PROCEEDINGS

Ms. B. is a Native American and a member of the Yankton Sioux Tribe. Max, born July 20, 1999, is a registered member of the Yankton Sioux Tribe. Nicole, born February 28, 2002, is eligible for membership, but is not currently a registered member of the Tribe. Mr. B. is not of Indian descent. Mr. and Ms. B. are married, and were separated at the time of the permanency hearing.

These proceedings began when the children were placed in shelter care by appellee, Montgomery County Department of Health and Human Services ("the Department"), on May 24, 2005, due to parental neglect. The original CINA petition detailed that:

Nicole has not yet been toilet trained; Max's front teeth are rotten; Max refuses to eat at school; the family does not have a regular meal schedule; Max has asthma; and his mother does not know his treatment protocol.

Max and Nicole were found to be CINA by agreement of all parties on June 20, 2005. After the CINA declaration, the children were placed with their paternal aunt, Denise P. The Department's permanency plan was reunification with the parents. Thus, Mr. B. was ordered to participate in a substance abuse evaluation, submit to semi-weekly urinalysis, participate in regular psychiatric treatment, make efforts to maintain stable housing, and provide child support. Ms. B. was ordered to submit to a substance abuse evaluation, follow treatment recommendations and submit to semiweekly urine screens. Mr. and Ms. B. were granted supervised visitation, and Mr. B.'s telephone calls were monitored by the Department.

The next review hearing was held on September 15, 2005. The court was informed that Mr. B. had obtained housing, and had been hospitalized to detox from the methadone prescribed to treat his Oxycontin addiction. Mr. B. was willing to enter an in-patient drug treatment program and undergo mental health treatment, but needed assistance with the cost, as he lost his health insurance coverage. Mr. B. had tested positive for cocaine and marijuana.

At the September 15 hearing, the court was also updated on Ms. B., who lacked housing, was unemployed, was not consistently visiting her children, and had not attended the court ordered substance abuse evaluation. Specifically, Ms. B. visited her children four times in three months, and appeared intoxicated during visitation. The Department indicated that there was no phone number at which Ms. B. could be reached, and she appeared to be under the influence of alcohol when at the Department's offices.

At the end of the September 15 hearing, the B.'s were ordered to complete weekly supervised visitation, participate in substance abuse evaluation, twice weekly urinalysis, and secure and maintain stable housing and employment. Mr. B. was also ordered to participate in mental health treatment.

In November 2005, the Department gave Mr. B. an application for pharmacy assistance, and discussed mental health treatment with him. The Department explained to Mr. B. that he needed substance abuse treatment before he could receive a mental health evaluation. In December 2005, there was a review hearing held, and a representative from the Yankton Sioux Indian Tribe came from South Dakota to speak to the circuit court regarding the tribe's motion to intervene.

A permanency planning hearing was held on April 27, 2006. At this hearing, the Yankton Sioux Tribe was granted intervenor status, but its motion to transfer jurisdiction was denied. The Department and counsel for the children argued that the appellants had made minimal progress. The evidence showed that Mr. B. was unsuccessfully discharged from Avery Road Treatment Center, an inpatient drug treatment center, after three weeks.1 Mr. B. was then referred to Addiction Services Coordination for an evaluation, which he did not attend.

Ms. B. attended and was successfully discharged from the inpatient drug treatment program at Avery Road. Avery Road then referred her to Another Way, an out-patient methadone treatment facility. She stated that she started this program, but it was costly, and "you have to get a ride there." Ms. B. testified that she enrolled in an abused persons program, attended AA meetings, and a bible retreat. She also stated that she participated in an Indian Education Program with her children, where they attended class twice each week for tutoring, computer education, Indian crafts, and holiday parties. Ms. B.'s testimony also reflected her tense relationship with Ms. P., the children's aunt and guardian. She said, "when I first had Max, and I lived in the basement, she was suffering from OCDC really bad. And, she used to come down in the morning and steal Max."

Ms. B. tested positive for benzodiazepine, cocaine, and an opiate on April 14, 2006. Ms. B. testified that she failed to see her children very often because she was "hiding." She said she was working four to ten hours a day in construction, but had little income because she was "paying off a tab" to a hotel, for Mr. B. She planned to get a government job at Indian Health Services. She was living with Mr. B.'s brother Tommy, in a home where Mr. B. lived on a different floor.2 Mr. and Ms. B. each had a mix of positive and negative urine tests, and each had missed some of their urinalysis appointments.

At this April 27 hearing, Denise P. (paternal aunt), testified that the children were doing well. She said that Nicole is a "happy little girl," and that Max is reading on grade level, and has done "very, very well in math." Ms. P. testified that she does not work outside the home because she suffers from obsessive—compulsive disorder, and receives disability payments. She stated that she takes medication for this disability, which she has been treating for 12 years. Ms. P. also testified that Mr. B. is "a good father to his children."

The Department's social worker, Karen Crist, testified that the Department changed its permanency plan in November 2005, with the new plan placing custody and guardianship with Ms. P. Christ stated that since November 2005, she gave Mr. B. the application for pharmacy assistance and discussed mental health treatment with him.

At this April 2006 hearing, Nicole's therapist, Allison Fellowes-Conly, was accepted as an expert in clinical social work and treatment of abused and neglected children. She testified that Nicole made "incredible improvement," as the girl changed from a "very afraid and guarded" child to an individual who trusted her caregivers. She stated that Nicole suffers from post-traumatic stress disorder, and her present symptoms include nightmares, disassociation, recurring memories of fights with her parents, and irritability. She summarized,

she's done incredible work, and she's more of a full child now. She's smiling. She's singing. She's dancing. Whereas before, she was extremely guarded and restricted.

Fellowes-Conly also testified that Max was coming along "very well" in his therapy. The therapist stated that Ms. P. was great to work with, and used the advice given to her right away. There was also testimony from Mr. B.'s brother, Vincent B., who said that he has noticed a tremendous change in the children since they were in Ms. P.'s care.

At the conclusion of the April 2006 hearing, the court changed the permanency plan from reunification with the parents to custody and guardianship with Ms. P. The court further ordered the parties to secure and maintain stable housing and employment, and participate in substance abuse treatment, twice weekly urinalysis and breathalyzers, parenting education, and psychological and psychiatric evaluations. The court decided to review the matter further in 90 days.

The next review hearing was held on July 21, 2006. Ms. B. was submitting to urine screens, but still had some positive test results showing illicit drug use. She missed nine scheduled urine and breathalyzer tests between May 18, 2006 and July 10, 2006. Her results were positive for benzodiazapine nine times, for opiates three times, and for cocaine once. On at least one date, Ms. B.'s urine tested positive for alcohol. Also, Ms. B. attended a parenting class two times, but was unable to fully focus during the sessions. Ms. B. produced documentation that she had been attending AA meetings. Ms. B.'s attorney also stated that...

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7 cases
  • In re Nicole B.
    • United States
    • Court of Special Appeals of Maryland
    • 28 Julio 2009
    ...notice of appeal by John "indicate[d] the intent of both parties to appeal the circuit court's decision." In re Nicole B. and Max B., 175 Md.App. 450, 458, 927 A.2d 1194, 1198 (2007). On the merits, the Court of Special Appeals vacated the decision closing the CINA case and remanded the cas......
  • In re James G.
    • United States
    • Court of Special Appeals of Maryland
    • 29 Febrero 2008
    ...permanency plan where court did not hold hearing to determine whether change was in child's best interest). See also In re Nicole B., 175 Md.App. 450, 927 A.2d 1194 (2007) (in permanency plan review case, applying the federal Indian Child Welfare Act, which preempts the ASFA "reasonable eff......
  • State ex rel. C.D.
    • United States
    • Utah Court of Appeals
    • 26 Diciembre 2008
    ...has produced a split of authority among the relatively few jurisdictions that have considered the issue. See, e.g., In re Nicole B., 175 Md.App. 450, 927 A.2d 1194, 1206 ("Definitions of `active efforts' under the federal statute vary by state ...."), cert. granted, 402 Md. 36, 935 A.2d 406......
  • In re Roe
    • United States
    • Court of Appeal of Michigan — District of US
    • 25 Septiembre 2008
    ...is not charged with "the duty of persisting in efforts that can only be destined for failure"). See also In re Nicole B., 175 Md.App. 450, 472, 927 A.2d 1194 (2007) ("[T]he requirement of `active efforts' does not require `futile efforts.'"). 36. E.A. v. Div. of Family Youth Services, 46 P.......
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