In re Nicole B., 73, September Term, 2007.

• Court: Court of Special Appeals of Maryland
• Citation: 410 Md. 33,976 A.2d 1039
• Docket Number: No. 73, September Term, 2007.,73, September Term, 2007.
• Parties: In re NICOLE B. and Max B.
• Decision Date: 28 July 2009

976 A.2d 1039 410 Md. 33 In re NICOLE B. and Max B. No. 73, September Term, 2007. Court of Appeals of Maryland. July 28, 2009.

[976 A.2d 1041]

Kathleen E. Wherthey, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for petitioners.

Robert S. Bokman, Rockville, for petitioners.

Michael R. Braudes, Asst. Public Defender (Nancy S. Forster, Public Defender and Nenutzka C. Villamar, Asst. Public Defender, Baltimore), on brief, for respondent.

Lisa F. Cook, Rapid City, SD, brief of Intervenor Yankton Sioux Tribe of South Dakota amicus curiae, for Intervenor Yankton Sioux Tribe.

Raymond Cournoyer, Director, Indian Child Welfare Program, Marty, SD, brief of Intervenor Yankton Sioux Tribe of South Dakota amicus curiae, for ICWA Program, Yankton Sioux Tribe.

Argued before BELL, C.J.,^* RAKER, HARRELL, BATTAGLIA, GREENE, JOHN C. ELDRIDGE (Retired, Specially Assigned) DALE R. CATHELL (Retired, Specially Assigned), JJ.

JOHN C. ELDRIDGE, J., Retired, Specially Assigned.

This Child in Need of Assistance ("CINA") case concerns a requirement in the federal "Indian Child Welfare Act of 1978," 25 U.S.C. § 1912(d), which provides as follows (emphasis added):

"Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."

The Circuit Court for Montgomery County ordered that the paternal aunt of two Native American children, who are brother and sister, "shall have full care, custody and guardianship of the" children, "that the parents shall have reasonable visitation with" the children "under the supervision of the paternal aunt," and that the CINA "case be and hereby is closed."

The case presents two issues regarding the merits of the Circuit Court's judgment. The first is whether the requirement of "active efforts" to prevent the breakup of the family, under the federal statute, is essentially the same standard as the "reasonable efforts ... to preserve and reunify families" set forth in Maryland Code (1999, 2006 Repl. Vol., 2008 Supp.), § 5-525(d) of the Family Law Article. The second issue

976 A.2d 1042

is, regardless of the similarity or dissimilarity between the federal and state standards, whether the Montgomery County Department of Health and Human Services did in fact make "active efforts" to prevent the breakup of the Indian family and those efforts were unsuccessful. A procedural issue, concerning the proper parties to this appellate litigation, is also raised. We shall hold that the father of the two children is a proper appellant-respondent in these appellate proceedings, and that, therefore, we shall be able to reach the merits of the case. We shall also hold that the Department of Health and Human Services did in fact make "active efforts" to prevent the breakup of the family and that those efforts were unsuccessful. Consequently, we need not, and shall not, decide whether the federal and state standards are the same.¹

I.

The mother of the minor children involved in this CINA case, Wendy B., is a Native American and a registered member of the Yankton Sioux Tribe of South Dakota, although she was not raised within the Tribe but was raised by non-tribal adoptive parents. The children are Max B., born on July 20, 1999, and Nicole B., born on February 28, 2002. Max B. is a registered member of the Tribe, and Nicole B. is eligible for membership in the Tribe.² The children's father, John B., is not a Native American.

The Child Welfare Services Office of the Montgomery County Department of Health and Human Services, on April 6, 2005, received a report that Max B. and Nicole B. were being neglected by their parents.³ The Department, upon investigation,

976 A.2d 1043

discovered that Nicole, then age 3, had not been toilet trained, and that Max, then age 5, had rotten front teeth, refused to eat at school, and had asthma that his mother did not know how to treat. In addition, the family had no regular meal schedule at home. The Department's investigation disclosed that both parents had struggled with drug addiction for many years. The Department was also told by John B. that he was dependent on the drug oxycontin and that he suffered from bi-polar disorder.

On May 18, 2005, John tested positive for numerous drugs. Subsequently, the Department learned that, on May 19, 2005, Wendy B. began a "crack cocaine binge," and the next day she left home with another man, leaving the children alone with John. Wendy continued the "crack cocaine binge" and, as of May 24, 2005, she had not returned home. During Wendy's absence, John was observed falling asleep while smoking, causing burn-holes to furniture, and was unable to care for the children.

The Department on May 23, 2005, placed the children in emergency shelter care. The Department's staff met with John B. on May 24, 2005, and he acknowledged that he was unable to meet his children's needs. Also on May 24, 2005, the Department filed in the Circuit Court for Montgomery County a CINA petition. The Circuit Court ordered continued shelter care for the two children and granted John visitation with the children up to six times a week. The children were placed in the temporary custody of their paternal aunt, Denise P.⁴

Prior to May 2005, Wendy B., John B., and the two children lived with John's mother in a house owned by the mother. John's mother, however, was terminally ill and died in early May 2005. John, on May 24, 2005, informed a Department social worker that "he will be losing the house as it will be sold in the settlement of his mother's estate and he has not found another place for the family to live." The house was sold in early August 2005, and John left the house.

976 A.2d 1044

In early June 2005, Wendy B. contacted one of the Department's social workers assigned to the case and informed the social worker that she had quit her job, that she and John had separated, and that she would be staying with John's brother, Tommy, who, according to the record, was an alcoholic. Wendy also stated that she wanted to "live off the inheritance," apparently referring to the fact that John's and Tommy's mother had recently died. Wendy refused to tell the social worker where she was living at that time. The social worker told Wendy that there would be a Circuit Court adjudicatory hearing on June 20, 2005.

At the June 20, 2005, Circuit Court hearing, all of the parties who were present entered into an agreement with respect to the facts and the recommendations to be made to the court. The agreement was incorporated in the CINA petition as an amendment. Both children were represented at the hearing by a court-appointed attorney. John was represented by his attorney and was personally present during the first part of the proceedings. Although John had to leave early, he did personally concur in the agreement which had been reached. Wendy was not present at the June 20th hearing, either in person or by an attorney.⁵ The children's paternal aunt, Denise P., was present and responded to questions from the court.

In accordance with the parties' agreement, the Circuit Court on June 20, 2005, sustained all of the Department's allegations, found that the children "have been neglected by their parents, and ... the parents are unable and unwilling to give the children the proper care and attention that they need." The court determined that Max B. and Nicole B. were children in need of assistance.⁶ The court further committed the children "to the Department and place[d] them under the jurisdiction of th[e] court, and place[d] them with their aunt," Denise P. Denise was also made a "limited" guardian of the children "for medical and educational purposes."

Since the Department's permanency plan for the children was reunification with a parent, the Circuit Court at the June 20, 2005, hearing imposed various requirements. The children were to "be supervised, under the direction of the Department, at a minimum weekly." Wendy's visitation with the children was to "be under the direction of the Department, minimum weekly, and supervised by the Department." Wendy, however, would not be allowed to visit the children if, with respect to a particular visit, she was not sober. Wendy was also required to "submit to a substance abuse evaluation and follow all treatment recommendations." In addition, the court ordered that she "participate in semi-weekly urine screens and remain substance free."

976 A.2d 1045

Similar requirements were imposed upon John. He was ordered to participate "in a substance abuse evaluation under the direction of the Department" and to undergo semi-weekly urinalysis with "urine screens." The Department was to coordinate with the "Another Way Treatment Center" where John was receiving, as an outpatient, methadone treatment for his oxycontin addiction, and to develop a treatment plan. John was ordered to "secure and maintain stable housing" for the family, as he would not be able to remain in his mother's house after it was sold. He was also directed to continue his treatment with a psychiatrist who was then treating him. In addition, John was told to report "to the Office of Child Support Enforcement" for the purpose of establishing a support order for both children. John's visitation with the children was to be supervised under a plan to be worked out by the Department and Denise P.

During the summer of 2005, the Department presented to John and to Wendy a "Case Plan for Children in Out-of-Home Care." John and Wendy each signed their case plans. Both case plans set forth the reasons causing the children to be placed in the Department's care, the goal of reunifying the children with their parents, and a list of "tasks" for the parents with a time...