IN RE NICOLE B. Md. 1039

1039Md.IN RE NICOLE B.Cite as 976 A.2d 1039 (Md. 2009)

reasonable basis for the apprehension,as expressed by defendant in argumentbefore the trial judge, that the physicianwill ever be required to perform surgeryor administer any other course of treat-ment that he or she believes to be con-traindicated. If the patient selects acourse, even from among reasonable al-ternatives, which the physician regardsas inappropriate or disagreeable, thephysician is free to refuse to participateand to withdraw from the case uponproviding reasonable assurances that ba-sic treatment and care will continue. Insuch circumstances, there can be no lia-bility for the refusal.

Matthies v. Mastromonaco, 310 N.J.Super.572, 709 A.2d 238, 253 (1998).

[4] In the present case, we are review-ing the grant of judgment notwithstandingthe verdict premised upon the requirementof a physical invasion. We hold today thatthis is not a requirement to sustain aninformed consent claim. As a result, thecase will be remanded to the trial court forconsideration of the remittitur motion filedby Dr. Spangler, which was not decided.

JUDGMENT OF THE COURT OFSPECIAL APPEALS REVERSED.CASE REMANDED TO THAT COURTWITH INSTRUCTIONS TO REVERSETHE JUDGMENT OF THE CIRCUITCOURT FOR BALTIMORE COUNTYAND TO REMAND THE CASE TO THECIRCUIT COURT FOR PROCEED-INGS NOT INCONSISTENT WITHTHIS OPINION. COSTS IN THISCOURT AND IN THE COURT OF SPE-CIAL APPEALS TO BE PAID BY RE-SPONDENT.

Judge GREENE joins in the judgmentonly.

,

410 Md. 33

In re NICOLE B. and Max B.

No. 73, Sept. Term, 2007.

Court of Appeals of Maryland.

July 28, 2009.

Background: Following permanencyplanning hearing for Indian children whohad been found to be children in need ofassistance (CINA), the Circuit Court,Montgomery County, McGann, J., orderedthat the plan be changed from reunifica-tion with mother and father to placementwith paternal aunt for custody and guard-ianship, and closed the CINA case. Fatherfiled pro se notice of appeal. The Court ofSpecial Appeals, 175 Md.App. 450, 927A.2d 1194, Adkins, J., vacated and remand-ed. County department of health and hu-man services petitioned for writ of certio-rari.

Holdings: The Court of Appeals, John C.Eldridge, J., Retired, Specially Assigned,held that:

(1) Court of Special Appeals lacked sub-ject matter jurisdiction over mother’spurported ‘‘appeal’’;

(2) father had standing to appeal circuitcourt’s judgment despite acknowl-edging that he was unable to care forchildren and was not seeking custody;and

(3) county department made active efforts,as required under Indian Child Wel-fare Act (ICWA), to prevent breakupof family.

Judgment of Court of Special Appeals re-versed; case remanded with directions.

Raker, J., filed a dissenting opinion inwhich Bell, C.J., joined.

1. Infants O244.1Appellate court lacked subject matter

jurisdiction over mother’s purported ‘‘ap-

1040 976 ATLANTIC REPORTER, 2d SERIESMd.

peal’’ from order closing Child in Need ofAssistance (CINA) case regarding her twochildren, where mother’s attorney did notfile notice of appeal on mother’s behalf,mother did not file a notice of appeal prose, and mother did not sign notice of ap-peal filed and signed by her spouse thatcontained mother’s printed name in theaddress block of the notice of appeal.

2. Infants O244.1Pro se notice of appeal, signed by

father, from order closing Child in Need ofAssistance (CINA) case concerning his twochildren would have been insufficient toconfer appellate jurisdiction over mother’spurported appeal, even if the inclusion ofmother’s printed name in the address boxof the notice of appeal was an attempt byfather to appeal on her behalf; signature ofsigning spouse was not sufficient by itselfto make father the agent of non-signingspouse or to include her in appeal.

3. Appeal and Error O428(2)A party in the trial court must file a

timely notice of appeal, from an appealablejudgment, in order to confer upon an ap-pellate court subject matter jurisdictionover that party’s appeal.

4. Husband and Wife O21, 25(1)One spouse’s signature on a pleading,

legal document, contract, etc., which is in-tended by the signer to be on behalf ofboth spouses, is not by itself sufficient tomake the signing spouse an agent of thenon-signing spouse or to include the non-signing spouse.

5. Appeal and Error O154(.5, 4)A party in the trial court is not enti-

tled to appeal from a judgment or order ifthat party consented to or acquiesced inthat judgment or order.

6. Appeal and Error O154(.5, 4)Appellate court will address issue of

whether a party consented to or ac-quiesced in judgment or order so as not to

be entitled to appeal, even if the right toappeal is not contested by another party.

7. Appeal and Error O153, 154(.5)

The right to appeal may be lost byacquiescence in, or recognition of, the va-lidity of the decision below from which theappeal is taken or by otherwise taking aposition which is inconsistent with theright of appeal.

8. Indians O134(4)

Infants O242

Father was aggrieved by judgmentclosing a Child in Need of Assistance(CINA) case that was subject to require-ments of Indian Child Welfare Act (ICWA)and had standing to appeal that judgment,though he acknowledged at final circuitcourt hearing that he was unable to carefor the children and was not seeking custo-dy, where father nevertheless opposed clo-sure of CINA case and his objection to theorder closing case was sustained by Courtof Special Appeals. Indian Child WelfareAct of 1978, § 102(d), 25 U.S.C.A.§ 1912(d).

9. Indians O134(2)

Whether county department of healthand human services made active efforts, asrequired under Indian Child Welfare Act(ICWA), to prevent breakup of Indianfamily prior to closure of Child in Need ofAssistance (CINA) case involving Indianchildren would be decided based upon thesubstance of department’s and circuitcourt’s actions, rather than the use, orfailure to use, the statutory label ‘‘activeefforts.’’ Indian Child Welfare Act of1978, § 102(d), 25 U.S.C.A. § 1912(d).

10. Pleading O4

Statutes O174

In applying statutes, other enact-ments, pleadings, or legal principles,courts must ordinarily look beyond labels


and make determinations based on sub-stance.

11. Indians O134(2)County department of health and hu-

man services made ‘‘active efforts,’’ as re-quired under Indian Child Welfare Act(ICWA), to prevent breakup of family pri-or to the grant of custody to children’spaternal aunt and the closure of Child inNeed of Assistance (CINA) case; effortsextended over 14 months, with five ‘‘Re-view Reports’’ and five court hearings, andwere continually rebuffed or hindered byfather and mother, who continued theirsubstance abuse, failed to secure stablehousing, failed to show up for variousscheduled appointments or visitations,could not be located on many occasions,and generally did not avail themselves ofhelp offered from department. IndianChild Welfare Act of 1978, § 102(d), 25U.S.C.A. § 1912(d).

See publication Words and Phrasesfor other judicial constructions anddefinitions.

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

Robert S. Bokman, Rockville, for peti-tioners.

Michael R. Braudes, Asst. Public De-fender (Nancy S. Forster, Public Defenderand Nenutzka C. Villamar, Asst. PublicDefender, Baltimore), on brief, for respon-dent.

Lisa F. Cook, Rapid City, SD, brief ofIntervenor Yankton Sioux Tribe of SouthDakota amicus curiae, for IntervenorYankton Sioux Tribe.

Raymond Cournoyer, Director, IndianChild Welfare Program, Marty, SD, briefof Intervenor Yankton Sioux Tribe of

South Dakota amicus curiae, for ICWAProgram, Yankton Sioux Tribe.

Argued before BELL, C.J.,*RAKER,HARRELL, BATTAGLIA, GREENE,JOHN C. ELDRIDGE (Retired, SpeciallyAssigned) 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 inthe federal ‘‘Indian Child Welfare Act of1978,’’ 25 U.S.C. § 1912(d), which providesas follows (emphasis added):

‘‘Any party seeking to effect a fostercare placement of, or termination of pa-rental rights to, an Indian child underState law shall satisfy the court thatactive efforts have been made to provideremedial services and rehabilitative pro-grams designed to prevent the breakupof the Indian family and that these ef-forts have proved unsuccessful.’’

The Circuit Court for Montgomery Countyordered that the paternal aunt of two Na-tive American children, who are brotherand sister, ‘‘shall have full care, custodyand guardianship of the’’ children, ‘‘thatthe parents shall have reasonable visitationwith’’ the children ‘‘under the supervisionof the paternal aunt,’’ and that the CINA‘‘case be and hereby is closed.’’

The case presents two issues regardingthe merits of the Circuit Court’s judgment.The first is whether the requirement of‘‘active efforts’’ to prevent the breakup ofthe family, under the federal statute, isessentially the same standard as the ‘‘rea-sonable efforts TTT to preserve and reunifyfamilies’’ set forth in Maryland Code (1999,2006 Repl. Vol., 2008 Supp.), § 5–525(d) ofthe Family Law Article. The second issue

* Raker, J., now retired, participated in thehearing and conference of this case while anactive member of this Court; after being re-

called pursuant to the Constitution, Article IV,Section 3A, she also participated in the deci-sion and adoption of this opinion.


is, regardless of the similarity or dissimi-larity between the federal and state stan-dards, whether the Montgomery CountyDepartment of Health and Human Ser-vices did in fact make ‘‘active efforts’’ toprevent the breakup of the Indian familyand those efforts were unsuccessful. Aprocedural issue, concerning the properparties to this appellate litigation, is alsoraised. We shall hold that the father ofthe two children is a proper appellant-respondent in these appellate proceedings,and that, therefore, we shall be able toreach the merits of the case. We shallalso hold that the Department of Healthand Human Services did in fact make ‘‘ac-tive efforts’’ to prevent the breakup of thefamily and that those efforts were unsuc-cessful. Consequently, we need not, andshall not, decide whether the federal andstate standards are the same.1

I.

The mother of the minor children in-volved in this CINA case, Wendy B., is aNative American and a registered memberof the Yankton Sioux Tribe of South Dako-ta, although she was not raised within theTribe but was raised by non-tribal adop-tive parents. The children are Max B.,born on July 20, 1999, and Nicole B., bornon February 28, 2002. Max B. is a regis-tered member of the Tribe, and Nicole B.is eligible for membership in the Tribe.2

The children’s father, John B., is not aNative American.

The Child Welfare Services Office of theMontgomery County Department ofHealth and Human Services, on April 6,2005, received a report that Max B. andNicole B. were being neglected by theirparents.3 The Department, upon investi-

1. Cases in other jurisdictions seem to be di-vided on this issue. Opinions holding that thefederal ‘‘active efforts’’ standard is essentiallythe same as the ‘‘reasonable efforts’’ to ‘‘pre-serve or reunify families’’ standard utilized innumerous state statutes include, e.g., Adoptionof Hannah S., 142 Cal.App.4th 988, 998, 48Cal.Rptr.3d 605, 612 (2006); In re S.B., 130Cal.App.4th 1148, 1165, 30 Cal.Rptr.3d 726,736 (2005); In the Interest of K.D., 155 P.3d634, 637 (Colo.App.2007), cert. denied, 2007WL 887679, 2007 Colo. LEXIS 249 (Colo.2007); In re Noah B., 2005 WL 648058, 2005Conn.Super. LEXIS 459 (Conn.Super., 2005).See also Long v. State of Alabama, Departmentof Human Resources, 527 So.2d 133, 135–136(Ala.Civ.App., 1988).

Cases taking the position that ‘‘active ef-forts’’ under the federal statute requires morethan ‘‘reasonable efforts’’ include, e.g., Win-ston J. v. State of Alaska, Department of Healthand Social Services, 134 P.3d 343, 347 n. 18(Alaska 2006) (dicta, as the children were notNative American and the federal statute wasinapplicable); In the Interest of J.S.B., Jr., 691N.W.2d 611, 619 (S.D.2005). See also In theMatter of H.J., 149 P.3d 1073, 1074 (Okla.Civ.App.2006) (The Court recognized the wordingdifference between the federal and the statestatutes but did not discuss whether the reuni-

fying standards are actually different; in-stead, the legal issue in the case concernedthe degree of proof).

There are other states in which state law isworded the same as the federal Indian ChildWelfare Act of 1978, namely requiring ‘‘activeefforts,’’ regarding Native American children,as a matter of state law. Thus, no issueconcerning the possible difference between‘‘active efforts’’ and ‘‘reasonable efforts’’arises in those states. See, e.g., In the Matterof the Welfare of the Children of S. W., 727N.W.2d 144, 149–150, (Minn.App.2007), re-view denied, 2007 Minn. LEXIS 196 (Minn.2007) (State law required both ‘‘active ef-forts’’ and ‘‘reasonable efforts’’); In the Mat-ter of A.N. and M.N., 325 Mont. 379, 384, 106P.3d 556, 560 (2005); In re Interest of DakotaL., 14 Neb.App. 559, 572–575, 712 N.W.2d583, 593–595 (2006).

2. The Indian Child Welfare Act of 1978 de-fines an Indian child as ‘‘any unmarried per-son who is under age eighteen and is either(a) a member of an Indian tribe or (b) iseligible for membership in an Indian tribeand is the biological child of a member of anIndian tribe.’’ 25 U.S.C. § 1903(4).

3. Hereafter, the Child Welfare Services Officeand the Montgomery County Department of


gation, discovered that Nicole, then age 3,had not been toilet trained, and that Max,then age 5, had rotten front teeth, refusedto eat at school, and had asthma that hismother did not know how to treat. Inaddition, the family had no regular mealschedule at home. The Department’s in-vestigation disclosed that both parents hadstruggled with drug addiction for manyyears. The Department was also told byJohn B. that he was dependent on thedrug oxycontin and that he suffered frombi-polar disorder.

On May 18, 2005, John tested positivefor numerous drugs. Subsequently, theDepartment learned that, on May 19, 2005,Wendy B. began a ‘‘crack cocaine binge,’’and the next day she left home with anoth-er man, leaving the children alone withJohn. Wendy continued the ‘‘crack cocainebinge’’ and, as of May 24, 2005, she hadnot returned home. During Wendy’s ab-sence, John was observed falling asleepwhile smoking, causing burn-holes to furni-ture, and was unable to care for the chil-dren.

The Department on May 23, 2005,placed the children in emergency sheltercare. The Department’s staff met withJohn B. on May 24, 2005, and he acknowl-edged that he was unable to meet hischildren’s needs. Also on May 24, 2005,the Department filed in the Circuit Courtfor Montgomery County a CINA petition.The Circuit Court ordered continued shel-ter care for the two children and grantedJohn visitation with the children up to sixtimes a week. The children were placed inthe temporary custody of their paternalaunt, Denise P.4

Prior to May 2005, Wendy B., John B.,and the two children lived with John’smother in a house owned by the mother.John’s mother, however, was terminally illand died in early May 2005. John, on May24, 2005, informed a Department socialworker that ‘‘he will be losing the house asit will be sold in the settlement of hismother’s estate and he has not found an-other place for the family to live.’’ Thehouse was sold in early August 2005, andJohn left the house.

Health and Human Services will, collectively,be referred to as the ‘‘Department.’’

4. The children’s placement in out-of-homeprotective care under the auspices of the De-partment began a process under Marylandlaw in which the court is required to establisha permanency plan for the children and toreview that permanency plan at least onceevery six months until the children’s commit-ment to the Department is rescinded. SeeMaryland Code (1974, 2006 Repl. Vol., 2008Supp.), § 3–823 of the Courts and JudicialProceedings Article. Subsection (e) of § 3–823 requires that the permanency plan beconsistent with the best interests of the chil-dren, and it gives the court several options.Subsection (e) provides as follows:

‘‘(e) Determinations to be made at hear-ing.—(1) At a permanency planning hear-ing, the court shall:

(i) Determine the child’s permanencyplan, which, to the extent consistent withthe best interests of the child, may be, indescending order of priority:

1. Reunification with the parent orguardian;

2. Placement with a relative for:A. Adoption; orB. Custody and guardianship under

§ 3–819.2 of this subtitle;3. Adoption by a nonrelative;4. Custody and guardianship by a non-

relative under § 3–819.2 of this subtitle; or5. Another planned permanent living ar-

rangement that:A. Addresses the individualized needs of

the child, including the child’s educationalplan, emotional stability, physical place-ment, and socialization needs; and

B. Includes goals that promote the con-tinuity of relations with individuals whowill fill a lasting and significant role in thechild’s life; and

(ii) For a child who has attained the ageof 16 years, determine the services neededto assist the child to make the transitionfrom placement to independent living.

(2) In determining the child’s permanen-cy plan, the court shall consider the factors


In early June 2005, Wendy B. contactedone of the Department’s social workersassigned to the case and informed thesocial worker that she had quit her job,that she and John had separated, and thatshe would be staying with John’s brother,Tommy, who, according to the record, wasan alcoholic. Wendy also stated that shewanted to ‘‘live off the inheritance,’’ appar-ently referring to the fact that John’s andTommy’s mother had recently died. Wen-dy refused to tell the social worker whereshe was living at that time. The socialworker told Wendy that there would be aCircuit Court adjudicatory hearing onJune 20, 2005.

At the June 20, 2005, Circuit Courthearing, all of the parties who were pres-ent entered into an agreement with re-spect to the facts and the recommenda-tions to be made to the court. Theagreement was incorporated in the CINApetition as an amendment. Both childrenwere represented at the hearing by acourt-appointed attorney. John was rep-resented by his attorney and was person-ally present during the first part of theproceedings. Although John had to leaveearly, he did personally concur in theagreement which had been reached.Wendy was not present at the June 20thhearing, either in person or by an attor-ney.5 The children’s paternal aunt, Den-ise P., was present and responded toquestions from the court.

In accordance with the parties’ agree-ment, the Circuit Court on June 20, 2005,sustained all of the Department’s allega-tions, found that the children ‘‘have beenneglected by their parents, and TTT theparents are unable and unwilling to givethe children the proper care and attentionthat they need.’’ The court determinedthat Max B. and Nicole B. were children inneed of assistance.6 The court furthercommitted the children ‘‘to the Depart-ment and place[d] them under the jurisdic-tion of th[e] court, and place[d] them withtheir aunt,’’ Denise P. Denise was alsomade a ‘‘limited’’ guardian of the children‘‘for medical and educational purposes.’’

Since the Department’s permanencyplan for the children was reunification witha parent, the Circuit Court at the June 20,2005, hearing imposed various require-ments. The children were to ‘‘be super-vised, under the direction of the Depart-ment, at a minimum weekly.’’ Wendy’svisitation with the children was to ‘‘beunder the direction of the Department,minimum weekly, and supervised by theDepartment.’’ Wendy, however, would notbe allowed to visit the children if, withrespect to a particular visit, she was notsober. Wendy was also required to ‘‘sub-mit to a substance abuse evaluation andfollow all treatment recommendations.’’In addition, the court ordered that she‘‘participate in semi-weekly urine screensand remain substance free.’’

specified in § 5–525(e)(1) of the FamilyLaw Article.’’

5. A few days before the June 20, 2005, hear-ing, Wendy telephoned one of the Depart-ment’s social workers and told the socialworker that she ‘‘had met with an attorneywho possibly was going to represent her’’ atthe June 20th hearing.

6. Maryland Code (1974, 2006 Repl. Vol.),§ 3–801(f) and (g) of the Courts and JudicialProceedings Article states as follows:

‘‘(f) Child in need of assistance.—‘Child inneed of assistance’ means a child who re-quires court intervention because:

(1) The child has been abused, has beenneglected, has a developmental disability,or has a mental disorder; and

(2) The child’s parents, guardian, or cus-todian are unable or unwilling to give prop-er care and attention to the child and thechild’s needs.

‘‘(g) CINA.—‘CINA’ means a child inneed of assistance.’’


Similar requirements were imposedupon John. He was ordered to participate‘‘in a substance abuse evaluation under thedirection of the Department’’ and to under-go semi-weekly urinalysis with ‘‘urinescreens.’’ The Department was to coordi-nate with the ‘‘Another Way TreatmentCenter’’ where John was receiving, as anoutpatient, methadone treatment for hisoxycontin addiction, and to develop a treat-ment plan. John was ordered to ‘‘secureand maintain stable housing’’ for the fami-ly, as he would not be able to remain in hismother’s house after it was sold. He wasalso directed to continue his treatmentwith a psychiatrist who was then treatinghim. In addition, John was told to report‘‘to the Office of Child Support Enforce-ment’’ for the purpose of establishing asupport order for both children. John’svisitation with the children was to be su-pervised under a plan to be worked out bythe Department and Denise P.

During the summer of 2005, the Depart-ment presented to John and to Wendy a‘‘Case Plan for Children in Out–of–HomeCare.’’ John and Wendy each signed theircase plans. Both case plans set forth thereasons causing the children to be placedin the Department’s care, the goal of reu-nifying the children with their parents, anda list of ‘‘tasks’’ for the parents with a timeframe, such as addressing substance abuseissues and maintaining safe and stablehousing.

In addition to the June 20th hearing,there were four other review hearings inthis case: September 15, 2005, December19, 2005, April 27, 2006, and July 21, 2006.

Before each hearing, the Department pre-pared a ‘‘Review Report’’ outlining the De-partment’s interactions with the parentsand the progress made by each parent.

Between the June 20, 2005, hearing andthe court hearing scheduled for September15, 2005, Wendy apparently informed aDepartment social worker that Max wasregistered with the Yankton Sioux Tribe ofSouth Dakota, and the Department noti-fied the Tribe of the CINA case. Severalmonths later, the Tribe filed a motion tointervene and a separate motion to trans-fer jurisdiction to the Yankton Sioux Trib-al Court. The Circuit Court granted themotion to intervene but denied the motionto transfer jurisdiction.

In a ‘‘Review Report’’ prepared by theDepartment in September 2005, in connec-tion with the September 15, 2005, courthearing, the Department reiterated thatthe Permanency Plan for Max and Nicolewas reunification with a parent. The De-partment listed numerous efforts which ithad made to achieve the PermanencyPlan.7 The Review Report also dealt withthe progress made by John, Wendy, andthe two children. In early July 2005, asocial worker visited John at his mother’shouse and left for John and Wendy courtorders, ‘‘letters regarding their lack ofprogress towards reunification, referralsfor substance abuse evaluation and urinal-ysis, and service agreements.’’ AlthoughWendy was not present, she later statedthat she had received the documents.

According to the Review Report, Johnhad ten scheduled visits with the children

7. The list of efforts included the following:

‘‘1. Explore options for relative placement.2. Monitor the children’s placement with the

aunt, Denise P.3. Supervised visitation for Max and Nicole

B. with their father.4. Supervised visitation for Max and Nicole

B. with their mother.

5. Provided transportation for the childrento and from visitation.

6. Met with both parents to discuss serviceagreements.

7. Referred John and Wendy B. for sub-stance abuse evaluations.

8. Referred John and Wendy B. for urinaly-sis.

9. Monitor urinalysis results.’’


between June and September 2005, but hefailed to show up on six of the dates. Withregard to the four dates when he did visitthe children, he would make promises tothem which he failed to keep, such aspromising Max a birthday present. Johnhad not attended the ‘‘Another Way Treat-ment Center’’ since July 17, 2005. OnAugust 24, 2005, John agreed to submit aurine sample, and the sample tested posi-tive for cocaine and marijuana. The De-partment at times found it difficult to con-tact John. Although he continued to live inhis mother’s house until early August 2005,the telephone was disconnected in earlyJuly; thus, when John would telephone asocial worker and leave a message, thesocial worker would be unable to returnthe call. Apparently near the end of theJune 20 to September 15 period, Johninformed a social worker ‘‘that he took aloan off his inheritance and was able torent a place to live.’’ He also gave DeniseP. $1200 for child support.

The Department’s lack of success withWendy was compounded by the difficultyin reaching her. On one occasion when asocial worker was able to speak with her,Wendy stated ‘‘that she did not have a job,permanent residence and a phone numberwhere she could be reached.’’ During theperiod covered by the Review Report,Wendy would call the Department andleave messages cancelling appointmentswith a social worker, but the social workerwas unable to call her back because Wen-dy had no telephone. At a meeting with asocial worker which did take place on Au-gust 22, 2005, Wendy’s eyes were blood-shot, she slurred her words, and ‘‘it wasdifficult to understand her reasoning.’’ Ata scheduled visitation with the children onAugust 25, 2005, Wendy arrived late andwas under the influence of drugs and alco-hol. Wendy admitted that a urine testwould be positive, and she informed thesocial worker that she had taken valiumjust before the meeting. Wendy stated

that she washed the valium down in anorange drink which contained vodka.Wendy had been referred to ‘‘AddictionServices Coordination (ASC)’’ for sub-stance abuse evaluation and urinalysis,but, as of the date of the Review Report,she had not attended ASC.

The Review Report stated that the chil-dren were ‘‘thriving in their current place-ment,’’ that ‘‘[b]oth children are obviouslybonded to their aunt,’’ that Denise P. wastaking Max to a dentist because of hisdecaying front teeth, that Max was takingswimming lessons, and that the childrenhad enjoyed a one-week vacation at thebeach. The Department’s recommenda-tions in the September 2005 Review Re-port were as follows:

‘‘RECOMMENDATIONS:‘‘The Department respectfully recom-mends that:

‘‘1. Max and Nicole B. remain com-mitted to the Department underthe jurisdiction of the Court.

2. Max and Nicole B. remain in place-ment with their aunt, Denise P.

3. Visitation between Max and Nicoleand their father, John B., be super-vised once a week under the di-rection of the Department.

4. Visitation between Max and Nicoleand their mother, Wendy B., besupervised once a week under thedirection of the Department.

5. John B. participate in a substanceabuse evaluation and follow all rec-ommendations.

6. John B. participate in urinalysistwice a week.

7. John B. secure and maintain stablehousing and a means of support forhis children.

8. John B. participate in mentalhealth treatment, including medi-cation management.


9. Wendy B. participate in a sub-stance abuse evaluation and followall recommendations.

10. Wendy B. participate in urinalysistwice a week.

11. Wendy B. secure and maintain sta-ble housing and a means of supportfor her children.

12. That a Review Hearing be sched-uled in 60 days.

‘‘PERMANENCY PLANThe Permanency Plan for Max and Ni-cole B. is Reunification with a parent.The Department will continue to worktowards the plan of Reunification for thenext 60 days.’’

At the September 15, 2005, hearing, allparties were represented by counsel ex-cept Wendy, who was not present in per-son and was not represented by an attor-ney whose appearance was entered. Anattorney was present who stated that hehad been ‘‘contacted by someone on behalfof the mother, and asked to be here withher,’’ and that he believed that ‘‘she wasdropped off at the court.’’ This attorneydeclined to enter an appearance for Wendyuntil he could ‘‘meet with her and recom-mend to her what should be done.’’ John’sattorney told the court that Wendy con-tacted John at 3:30 a.m. on September15th and said that she would be at thecourt hearing. Nevertheless, Wendy wasnot present at any time during the hear-ing.

At the September 15th hearing, the at-torney for the children raised an issueregarding visitation. The attorney stated‘‘that the visits with the dad are sporadic,and visits with [the] mom barely happen,TTT and the kids tend to become veryupset when they’re expecting the visitfrom their parents and it doesn’t happen.’’The children’s attorney recommended thatthe Department attempt to arrange visita-tion so as to avoid this situation.

John’s attorney represented to the courtat the September 2005 hearing that Johnhad ‘‘now obtained housing,’’ that Johnstopped going to the Another Way Treat-ment Center because ‘‘he got off the me-thadone,’’ that John attended ‘‘AddictionServices Coordination’’ (ASC), and thatJohn was ‘‘willing to go to an inpatientprogram if that’s what’s recommended.’’

There were no objections to Depart-ment’s recommendations, and the CircuitCourt on September 15th adopted the rec-ommendations.

John reported that directly after theSeptember 15th hearing, he went to ASCand attempted to enroll in an inpatienttreatment program, but no beds wereavailable at that time. Subsequently, Johnreported to the Department that he hadstopped calling the inpatient treatment fa-cility because he did not want to lose hishousing. He also reported that on Octo-ber 12, 2005, he got a job. During thisperiod following the September hearing,John visited his children on a regular ba-sis.

The Review Report prepared for theDecember hearing noted that Wendy se-cured employment but that she still didnot have stable housing. The social work-er reported that, on one occasion, Wendywas late for an appointment to visit thechildren and appeared to be under theinfluence of drugs or alcohol, slurring herwords and moving in slow motion. Sheupset the children by telling them that shewould be leaving for 28 days to attend arehabilitation program. She did not, how-ever, attend the program. Late in Octo-ber, she went to ASC, tested positive forcocaine and benzodiazepines, and was re-ferred for an extended evaluation.

On November 21, 2005, the Departmentchanged the permanency plan from reuni-fication with a parent to placement with arelative. The Department based this deci-


sion on the ‘‘parents’ lack of progress to-wards Reunification,’’ and on both parents’failure to comply with the Department’srecommendations. The Department alsoconsidered the parents’ substance abuse,their failure to participate in twice-weeklyurinalysis and breathalyzer tests, and theirfailure to provide documentation of a per-manent residence.

At the December 19, 2005, hearing, arepresentative of the Yankton Sioux Tribeof South Dakota was present. The repre-sentative stated that he was the IndianChild Welfare Act’s ‘‘specialist for theYankton Sioux Tribe’’ and that, althoughthe Tribe had been looking for relatives tocare for the children, the Tribe had not‘‘found any relatives as of yet.’’ The Tribepresented a petition to intervene, but thepetition had not been properly filed withthe court and copies had not been sent tothe other parties. The Circuit Court not-ed in its order that a motion to interveneby the Yankton Sioux Tribe would subse-quently be filed.

Wendy and her attorney attended theDecember 19th hearing, the first hearingin this case which she attended. Wendy’sattorney objected to the Department’schange of permanency plan from reunifica-tion to placement with a relative, but thetrial judge pointed out that Wendy had notcompleted any kind of in-house drug treat-ment program and that she had missedseveral urinalyses. The judge also saidthat, in order to achieve reunification, theparents needed to demonstrate that theyare drug-free. The trial judge explainedto the parents:

‘‘That means that you are probably go-ing to have to go through an in-houseprogram, based on your history. And,you are going to have to have a longperiod of time where your urines areclean. And that you haven’t missed any.And, that you’ve got a place to take the

children where they’ll be safe, andwhere they’ll be comfortable.’’

The judge further stated to the parents:‘‘[I]t’s clear to me that the County hasmade an awful lot of effort, here, to tryand get these kids back to you. And,you guys are not doing your, you are notdoing your share. You are not keepingup your part of the bargain.’’

The case was then continued, and the or-der issued by the court reiterated ‘‘thatthe conditions and requirements of thiscourt’s previous Order of September 15,2005, shall remain in effect.’’

On January 25, 2006, Wendy was admit-ted to an inpatient drug treatment pro-gram, but she refused to meet with theDepartment’s social worker while partici-pating in the program or verify her com-pletion of the program. Following the in-patient program, Wendy was referred to acontinuing program for substance abusetreatment, but she did not attend because,in her view, the $12 per day fee was tooexpensive. During the period from Janu-ary 2006 until the Department’s next Re-view Report dated April 13, 2006, Wendyparticipated in only two urine tests, eventhough the Circuit Court had ordered herto participate in twice weekly urinescreens, and she was informed that missedtests would be considered positives.

In February 2006, Wendy reported thatshe had rented an apartment with Tommy,who was her ‘‘boyfriend’’ and, as previous-ly noted, John’s brother. By April 2006,however, Wendy experienced problemswith that housing situation, reporting tothe Department that there were viciousdogs there that had bitten her, John, andTommy, and that she had stayed in a hotelfor a few nights to avoid the dogs and tobe closer to her employer.

John also attended an inpatient drugtreatment program some time in March2006. John provided no documentation to


the Department regarding the completionof his inpatient treatment program, and hefailed to participate in the twice weeklyurinalyses. The Department later learnedthat John did not complete the inpatienttreatment program because he was ex-pelled from the program for violating theprogram’s rules.

The April 13th Review Report againsummarized the efforts of the Departmentand the circumstances regarding the par-ents and the children. The report statedthat the children continued to thrive intheir current placement and that they had‘‘obviously bonded to their ‘Aunt Denise’and [her fiancee] ‘Uncle Gary.’ ’’ Max re-ceived the dental care he needed and at-tended weekly therapy sessions with apsychiatrist. Nicole was potty trained;her immunizations were updated, and shealso attended therapy sessions.

Sometime in March or April 2006, Johnlost his housing and was staying with Wen-dy and Tommy. Despite the court ordersof September 15, 2005, and December 19,2005, requiring John’s ‘‘[p]articipat[ion] inmental health treatment, including medi-cation management,’’ the Department re-ported that John was not getting treat-ment for his mental health issues. Wendysimilarly had failed to secure stable hous-ing, had failed to verify her completion of asubstance abuse program, and had notparticipated in the twice-weekly urinalys-es. The Review Report also noted thatWendy had missed more than ten visitswith Max and Nicole, while John hadmissed five visits. The Review Report setforth the Department’s position that ‘‘Johnand Wendy B. have made no significantprogress towards reunification,’’ pointingout that, while both attended inpatienttreatment, they both failed to provide doc-umentation of permanent residence or ver-ify that they had maintained their sobriety.

At the start of the April 27, 2006, hear-ing, an attorney representing the Yankton

Sioux Tribe of South Dakota filed theTribe’s motion to intervene. The Tribealso filed a motion to transfer the case totribal jurisdiction, but the Department op-posed that motion, pointing out that theTribe had been on notice of the children’sstatus since August 2005. As earlier men-tioned, the trial judge granted the Tribe’smotion to intervene but denied the Tribe’smotion to transfer jurisdiction. The trialjudge stated that the motion to transferjurisdiction had been filed ‘‘at the eleventhhour,’’ that the ‘‘children have been underthe jurisdiction of the Department fornearly a year,’’ and that the Departmenthad provided ‘‘an incredible amount of in-formation concerning the services thathave been provided to these children.’’The judge also found that transferring ju-risdiction ‘‘would be contrary to the wel-fare of these children, given the fact thatthe services have been in place for such aperiod of time.’’ The Tribe’s attorney par-ticipated in the morning portion of theApril 27th hearing but left before the af-ternoon session. Consequently, theTribe’s attorney was not present whenWendy and Denise testified during theafternoon.

At the April 27th hearing, the Depart-ment asked the trial judge to leave thechildren in the relative placement withtheir aunt, Denise, and to close the case.The attorney for John and the attorneyrepresenting Wendy each asked the judgeto postpone closing the case because, asthey argued, ‘‘we are not at the pointwhere this case should be closed.’’ TheTribe joined in the parents’ request toleave the case open.

Several witnesses testified at the April27, 2006, hearing with regard to the activi-ties of the Department, the children’sprogress, and the parents’ efforts towardsreunification. A clinical social workerfrom the ‘‘Reginald Lourie Center for In-


fants and Young Children’’ testified con-cerning the therapy which she had provid-ed to Nicole. The clinical social workerhad determined that Nicole suffered frompost-traumatic stress disorder. The socialworker testified that, when she first beganto work with Nicole, the child was ‘‘highlyrestricted in her movements, very pale,TTT looking very afraid and guarded.’’During the time Nicole lived with Denise,however, the social worker had observed‘‘an incredible improvement with a bright-er aspect, less depression.’’ When ques-tioned regarding the impact of removingNicole from Denise’s home, the clinicalsocial worker stated:

‘‘[A]t this time, Nicole’s made incredibleprogress in gaining a trust of adults thatshe knows that will keep her safe. And,she has just begun to be more free inmovements, freer in her play, less anx-ious at home and less anxious at school.Any sort of huge adjustment, change, inher environment is going to further ex-acerbate her symptoms and bring herback to where she was when she firstcame in. And it might, her symptomsmight even become worse than theywere initially.’’

A representative of the Avery RoadTreatment Center, the inpatient drugtreatment program attended by both Johnand Wendy, testified that John had beendischarged from the program for violatingprogram rules. The representative fur-ther testified that Wendy successfully com-pleted the Avery Road program and thatshe was referred to a methadone treat-ment facility. On discharge, the programrecommended that Wendy abstain fromalcohol and stay away from others drink-ing alcohol. The supervisor of the urinemonitoring program also testified, statingthat the most recent urinalysis of John,conducted on April 14th, tested positive forbenzodiazepine, cocaine and opiate. Thesupervisor also testified that both John

and Wendy had multiple ‘‘no shows’’ be-tween January and April.

Denise, the aunt and caretaker of thechildren, testified that, when Nicole wasfirst placed with her, the child had not hadany vaccinations since infancy, that shewas not potty trained, and that she wasvery shy and withdrawn. According toDenise, Nicole also suffered from terrornightmares when she was first placed withDenise. Max was also very shy at first,Denise testified, and ‘‘he needed specialhelp in kindergarten’’ and was behind inreading. Denise also said that she hadsmelled alcohol on Wendy during some ofher visits with the children, but that shenever confronted Wendy about it. Denisestated that the last time she spoke to Johnand Wendy, ‘‘they were living at a hotel’’and that she had ‘‘really no way to reachthem, unless I talk to [the social worker].’’She also testified that she had received$1,200 from John shortly after the childrenwere placed in her custody, but that theparents had not provided her with anymonetary support since then. Vincent B.,another brother of John B. and Denise P.,also testified regarding the care of thechildren. He stated that he had seen ‘‘anamazing change’’ in the children since theymoved in with Denise.

The Department’s social worker, KarenCrist, who had worked directly with Johnand Wendy, testified at the April 27thhearing that she had attempted to helpJohn find affordable mental health treat-ment by giving him an application for apharmacy assistance program and encour-aging him to get involved in the substanceabuse treatment program that was a pre-requisite to most mental health programs.She stated that John had not been forth-coming regarding his participation in thesubstance abuse treatment program, mak-ing it difficult for her to work with himbecause he never signed the consent forms


necessary for her to work with his pro-gram facilitators.

John chose not to testify during theApril hearing. Wendy did testify that shehad attended the Avery Road substanceabuse program, which she followed up witha methadone program, ‘‘AA meetings, aBible retreat, and TTT [she also] enrolledin the abused persons program.’’ Whenthe children were living with her, she stat-ed that Max was ‘‘doing really good as akindergartner’’ and she had taken the chil-dren to Title IX Indian Education Pro-grams twice a week. According to Wendy,the death of the children’s grandmotherhad led to the children’s post-traumaticstress disorder. Wendy presented thecourt with certificates of completion forMicrosoft courses which she had taken.She also testified that she intended to re-turn to a job with the federal government,that she had recently purchased a car, andthat ultimately she wanted the court’s per-manency plan to be reunification betweenherself and the children. Her testimony,however, was vague about her living situa-tion, her job prospects, and her substanceabuse recovery program. The trial judgelater noted that he had ‘‘some issues con-cerning credibility’’ with Wendy becauseshe failed to provide verification of heractivities.

Wendy acknowledged that she and Johnwere still married but that she currentlylived with her brother-in-law, Tommy, inthe basement of a house, while her hus-band, John, lived upstairs. Wendy testi-fied that she had not seen the childrenfrom May through the end of August,2005, because she was ‘‘hiding.’’ She alsoadmitted to ‘‘hav[ing] some beers now andthen’’ and stated that she was currently onmethadone for treatment of her oxycontinaddiction.

At the end of the April 27, 2006, hearing,the Department urged the court to closethe case and allow the children to stay in

the care of Denise. The Department ar-gued that ‘‘the parents have had a longtime to try to make some changes, and it’sjust not happening.’’ The Departmentalso pointed out that, although both par-ents attended the Avery Road treatmentprogram, John had ‘‘recently tested posi-tive for a number of different substances’’and Wendy ‘‘by her own admission, ha[d]not followed through with the recommen-dations from Avery Road.’’

The children’s attorney endorsed therecommendation of the Department thatthe custody and guardianship of the chil-dren should stay with Denise. The chil-dren’s attorney, however, agreed withJohn’s and Wendy’s position that ‘‘maybeanother three months’’ would be appropri-ate to see if the parents made any otherprogress. Although the children’s attor-ney noted his concerns with ‘‘all the no-shows for the urines, [and] all of themissed visitations,’’ he encouraged thecourt to establish a definite visitationschedule.

John’s attorney argued that the caseshould not be closed and that the perma-nency plan should be to reunify John withhis children. The attorney pointed out thatseveral of the witnesses recognized thatJohn had a strong bond with his childrenand that he was a ‘‘good father.’’ John’sattorney complained that the Departmenthad failed to provide John with the mentalhealth treatment needed. The attorneyalso highlighted John’s concerns for thechildren’s welfare.

Wendy’s attorney argued that the per-manency plan should remain reunificationwith the parents and that the court shouldkeep the case open for three more months.The attorney claimed that Wendy hadmade some progress by successfully com-pleting a substance abuse treatment pro-gram and attending AA meetings. Theattorney represented that Wendy had at-


tempted to keep in contact with the chil-dren by telephoning them and that Wendywanted additional time to demonstrate tothe court that she could do what was nec-essary to get her children back.

The trial judge was ‘‘underwhelmed TTT

at what both of you [parents] have done or,more importantly, failed to do’’ during thecourse of the Department’s involvementwith the children. The judge recognizedthat both John and Wendy had made someprogress in addressing their addictions byattending the substance abuse programs,even though their progress was not ‘‘phe-nomenal.’’ The judge decided to keep thecase open, although the judge did agree tomodify the permanency plan to placementwith a relative and, to that effect, orderedthat ‘‘Max and Nicole remain placed in thecustody and guardianship of Denise P.’’The court also ordered John and Wendy tocomply with a variety of recommendationsfrom the Department, including participat-ing in twice weekly urinalyses and findingstable housing and employment. Thejudge stated that, at the next hearing, hewould evaluate the parties’ progress, withparticular attention toward ‘‘any deviationfrom this Court’s order.’’

Sometime after July 12, 2006, the Yank-ton Sioux Tribe of South Dakota submitteda written ‘‘Objection of Intervenor Yank-ton Sioux Tribe to the Review Report Sub-mitted to the Court by the Department ofHuman Services Dated July 12, 2006.’’ Inits objection, the Tribe alleged that ‘‘theDepartment has not made active effortswithin the meaning of the [federal statute]to prevent the breakup of the Indian fami-ly.’’ Specifically, the Tribe pointed outthat the Department’s placement of thechildren with the aunt did not reflect ‘‘theunique cultur[al] heritage of the Minor In-dian Children.’’ The Tribe urged the Cir-cuit Court to keep the case open and to‘‘direct the Department to make active and

reasonable efforts to prevent the breakupof the Indian family.’’

The final hearing in the case was held onJuly 21, 2006, and both John and Wendyattended. The evidence at the hearingwas as follows. Since the April 27th hear-ing, John had not attended any urinalysesand Wendy had missed nine tests betweenMay 18th and July 10th. On the dateswhen Wendy was screened, she tested pos-itive for benzodiazepine on nine occasions,and, on three of those tests, she also testedpositive for opiates. Wendy generally re-fused to take breathalyzer tests because ofan asthma condition, but, on the one occa-sion when she was administered an orallitmus-like test, she tested positive for al-cohol, though she disputed those results.Despite the Circuit Court’s order requiringverification of attendance at AA meetings,John presented no verification slips andWendy presented only one to the Depart-ment.

Neither parent at the July 21, 2006,hearing provided evidence of a stable hous-ing situation or stable employment, andneither had consistently attended the par-enting education classes arranged by theDepartment. Before the Departmentwould arrange psychological and psychiat-ric evaluations, it had asked each parent tosubmit three weeks of clean drug tests, atotal of ‘‘six consecutive negative urinesand breathalyzers,’’ but neither John norWendy submitted those clean tests.

At the July hearing, both the children’sattorney and the Department argued thatthe court should close the case. The chil-dren’s attorney said that the parents, atthe April hearing, had been given ‘‘anotherchance, and TTT clearly, the parents ha-ven’t done anything close to what theyneeded to do. And I can’t imagine thatthey’re going to do it any time in theforeseeable future.’’ He submitted that ‘‘itis absolutely not in [the children’s] best


interests to be reunified with [the parents]in the foreseeable future, and I think thatkeeping the case open and giving the par-ents another chance would only makethings more unstable for the children.’’

John, by his attorney, admitted that hewas unable to care for the children andstated that ‘‘[h]e’s not seeking custody ofthe kids, but he does support Wendy hav-ing custody of the children.’’ John also‘‘acknowledge[d] that he is not ready andthat he couldn’t do it, but he supportsWendy having the children and if not Wen-dy, TTT he does support Denise.’’

Wendy’s attorney again requested thatthe case be kept open for ‘‘at least 60 moredays’’ to give Wendy ‘‘the opportunity toreally demonstrate even further that shereally would like to have her childrenback.’’ Wendy showed the court a leasesigned on May 26, 2006, for a home inSilver Spring, Maryland, and she provideddocumentation of her $15–an–hour employ-ment. She also presented several slipsverifying her attendance at AA meetingsand, attempting to justify some of the posi-tives on the urinalyses, produced painmedication prescriptions from a dentist.

The Tribe joined Wendy’s argumentthat the case should be kept open longer,claiming that the Tribe had not been giventhe time necessary to evaluate whether theDepartment had made the ‘‘active efforts’’necessary under the federal statute. TheTribe also wanted the case open so that itcould assist the Department with a relativesearch in South Dakota. The Tribe ar-gued that the numerous referrals providedto John and Wendy by the Departmentconstituted ‘‘a passive activity’’ and did notamount to ‘‘active efforts.’’

In response to the Tribe’s arguments,the Department indicated that its first con-tact with the Tribe was on August 15,2005, and that the Tribe had not respond-ed until April 2006. The Department alsostated that there were ‘‘repeated efforts by

the Department to engage the Tribe to filethe right papers,’’ but that the Tribe con-tinually filed ‘‘procedurally defective’’ pa-pers. When the court inquired what ef-forts the Tribe had made to find an Indianrelative placement for the children, theTribe’s attorney admitted that she was‘‘not as well informed as I should be andTTT I have not exercised discovery proper-ly.’’ The court commented on the Tribe’sobjections, noting that,

‘‘as far as the County not being able toprovide the service themselves, but di-recting it, that’s for the legislature be-cause TTT it’s not like they have thepsychiatrist on call in their building andthey’re purposely telling mom to gosomewhere else. This is the way thatthey operate. They provide the ser-vices, they let them know where theprograms are and then the parents ei-ther show up or they don’t, or they getsomething out of it or they don’t.’’

The Tribe conceded that the Department‘‘has made efforts in the best interests ofthe children,’’ but concluded that thoseefforts were not ‘‘active efforts at thispoint in time as required by federal law.’’

John himself made a statement to thecourt, saying that the children should beplaced with Wendy because ‘‘[t]here’s noreason why they should not live with thiswoman.’’ The Department’s social worker,however, countered John’s statements bypointing out that only ten days earlier,John had contacted the social worker, say-ing that Wendy’s ‘‘home was not safe, thathe did not want the children going withMrs. B., [and] that there were 30 beer cansin the trash can.’’ The social worker alsostated that John, during the same conver-sation, ‘‘indicated that he wanted the kidsto remain with Denise.’’ While John, atthe hearing, admitted that he had madethose statements, he claimed that ‘‘his con-cerns were about Tommy, not about Wen-


dy,’’ and that, as Tommy was now alleged-ly not living with Wendy, John was nolonger concerned for the children’s wel-fare.

In rendering his decision to close thecase, the trial judge pointed out that Johnwas no longer seeking custody of the chil-dren, but the Judge declined to acceptJohn’s recommendation that the childrenstay with Wendy. The court stated:

‘‘I won’t address John because he’s obvi-ously graciously, and quite properly,backed himself out of the consideration,but also consider[ing] his strong sub-stance abuse problems himself, and Iconsider that when I consider his recom-mendations as well, that is, that he rec-ommend that the children go live withtheir mother.’’

With regard to Wendy, the judge summa-rized her recent actions as follows:

‘‘Wendy B.’s minimization and denial ofher alcohol and prescription abuse isalarming, and seriously jeopardizes herability to provide a safe and stable homeenvironment for the children, and she’snot consistently participated in weeklyurinalysis.’’

The judge continued:‘‘John, Wendy and Tommy remain in acrisis-driven, triangulated relationship.And I don’t think for one moment, that,based on the history of this case, thatmom is not going to get herself back inanother jam, whether it’s with Tommyor somebody else. There’s no reason tobelieve that she’ll make good choices.She hasn’t yet, and is probably unable tobecause of the substance abuse.

‘‘Now Max and Nicole are in a safeand stable living environment, which weall want, with their paternal aunt who iswilling and able to provide for the chil-dren, and the doctor’s reports indicatethat TTT the kids will be in good handswith [Denise].’’

The trial judge found that Wendy had‘‘proven to this court that she’s chosendrugs over her childrenTTTT [T]he recordis clear. This is not a hard case to makethe decision on.’’ The judge concluded:

‘‘It’s an easy decision because we’ve hadover 14 months and you basically haven’tgotten any farther, in the court’s opin-ion, along the way towards addressingyour substance and alcohol abuse prob-lem, addressing your relationship prob-lem, addressing what the kids need to beexposed to and what they don’t need tobe exposed to, what you can say tochildren, what you can’t say to children,and what’s in the best interests of thechildren.’’

After the judge stated that he had decid-ed to leave the children in the custody ofDenise and to close the CINA case, theattorney for John, the attorney for Wendy,and the Tribe’s attorney objected on theground that the decision was not in accor-dance with the federal statute. Thecourt’s order closing the case was enteredon August 1, 2006.

II.

Neither the Tribe, nor the attorney forWendy, nor the attorney for John, filed anotice of appeal. Moreover, Wendy didnot file a pro se notice of appeal. OnAugust 28, 2006, John, pro se, filed a ‘‘line’’containing the handwritten word ‘‘Appeal,’’John’s signature, and an address blockwith the names ‘‘John, Wendy B.,’’ printedin it, along with their address. Subse-quently, the Maryland Public Defender’sOffice apparently undertook to representboth John and Wendy before the Court ofSpecial Appeals.

The Department filed a motion in theCourt of Special Appeals to dismiss thepurported appeal of Wendy on the groundthat she filed no notice of appeal and thuswas not a party to the appellate proceed-


ings. The Court of Special Appeals deniedthe motion to dismiss Wendy’s ‘‘appeal.’’While acknowledging that the notice ofappeal was signed only by John, the Courtof Special Appeals held that the pro senotice of appeal by John ‘‘indicate[d] theintent of both parties to appeal the circuitcourt’s decision.’’ In re Nicole B. andMax B., 175 Md.App. 450, 458, 927 A.2d1194, 1198 (2007).

On the merits, the Court of Special Ap-peals vacated the decision closing theCINA case and remanded the case to theCircuit Court. In re Nicole B. and MaxB., supra, 175 Md.App. at 474–475, 927A.2d at 1208. The intermediate appellatecourt seemed to find fault with the CircuitCourt’s decision because the Circuit Court‘‘did not specifically make factual findingsregarding the’’ federal Indian Child Wel-fare Act of 1978. In re Nicole B. and MaxB., 175 Md.App. at 461, 927 A.2d at 1200.Nevertheless, the Court of Special Appealsacknowledged that the Circuit Court ‘‘didaddress the efforts that the Departmentmade to reunify Mr. and Mrs. B. with theirchildren’’ (ibid.). The Court of SpecialAppeals ‘‘emphasize[d] TTT that the re-quirement of ‘active efforts’ does not re-quire ‘futile efforts’ ’’ (175 Md.App. at 472,927 A.2d at 1206), and stated that ‘‘[w]e donot know exactly what additional servicesthe Department could have provided.’’175 Md.App. at 473, 927 A.2d at 1207. TheCourt of Special Appeals concluded (175Md.App. at 474–475, 927 A.2d at 1208):

‘‘[W]e vacate the closure of the B.’sCINA case, and remand for further pro-ceedings consistent with this opinion.On remand, the circuit court, in deter-mining if it should retain jurisdiction,should evaluate whether, in light of allthe circumstances and resources reason-

ably available to the Department, thelatter made sufficient active efforts tofacilitate and provide treatment for theB.’s, in light of the mental health disor-ders.’’

The Department filed a petition for awrit of certiorari which this Court granted.In re Nicole B. and Max B., 402 Md. 36,935 A.2d 406 (2007). Neither John norWendy filed a cross-petition for certiorari.8

III.

[1, 2] The Department in this Courtrepeats its contention that Wendy’s ‘‘ap-peal’’ should have been dismissed by theCourt of Special Appeals. The Depart-ment relies on the failure of Wendy, eitherpro se or by an attorney, to file a notice ofappeal. The Department, however, takesthe position that John was entitled to ap-peal because he ‘‘meets the statutory defi-nition of a ‘parent’ of an ‘Indian Child’ withstanding to appeal. See 25 U.S.C.A.§ 1903(4), (9)TTTT’’ (Department’s brief inthis Court at 22 n. 6).

Even if the Department had not raisedthe issues regarding the respondents’ rightto appeal, this Court, as a matter of Mary-land appellate procedure, would addressthe issues sua sponte.

[3] With regard to Wendy’s ‘‘appeal,’’ aparty in the trial court must file a timelynotice of appeal, from an appealable judg-ment, in order to confer upon an appellatecourt subject matter jurisdiction over thatparty’s appeal. See, e.g., Houghton v.County Commissioners of Kent County,305 Md. 407, 413, 504 A.2d 1145, 1148,motion for reconsideration denied, 307Md. 216, 513 A.2d 291 (1986) (‘‘The re-quirement TTT that an order of appeal be

8. The Yankton Sioux Tribe of South Dakota isnot a party to the appellate proceedings inthis case because the Tribe, although a partyin the Circuit Court, had not taken an appeal

from the Circuit Court’s judgment. Neverthe-less, the Tribe was given permission to file,and did file, an amicus curiae brief in thisCourt.


filed within thirty days of a final judgmentis jurisdictional; if the requirement is notmet, the appellate court acquires no juris-diction and the appeal must be dis-missed’’); Joseph H. Munson Co. v. Secre-tary of State, 294 Md. 160, 168, 448 A.2d935, 939–940 (1982), affirmed, 467 U.S.947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984);Maryland Rule 8–201(a). In addition, see,e.g., East v. Gilchrist, 293 Md. 453, 458,445 A.2d 343, 345 (1982) (‘‘ ‘[T]his Courtwill dismiss an appeal sua sponte when itnotices that appellate jurisdiction is lack-ing’ ’’); Biro v. Schombert, 285 Md. 290,293, 402 A.2d 71, 73 (1979) (‘‘[W]here theCourt of Special Appeals has entertainedan appeal without having jurisdiction to doso, and the case is timely brought to ourattention (such as by a petition for a writof certiorari dealing with the merits of theappeal), we will issue a writ of certiorariand sua sponte consider the jurisdiction ofthe intermediate appellate court’’); East-gate Associates v. Apper, 276 Md. 698, 701,350 A.2d 661, 663 (1976) (‘‘Where appellatejurisdiction is lacking, the appellate courtwill dismiss the appeal sua sponte’’). TheUnited States Supreme Court has takenthe same position. See, e.g., Liberty Mut.Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96S.Ct. 1202, 1204, 47 L.Ed.2d 435, 439(1976) (‘‘Though neither party has ques-tioned the jurisdiction of the Court of Ap-peals to entertain the appeal, we are obli-gated to do so on our own motion if aquestion thereto exists’’).

It is clear that the Court of SpecialAppeals erred by denying the Depart-ment’s motion to dismiss Wendy’s appeal.Wendy’s attorney did not file a notice ofappeal on behalf of Wendy. Wendy her-self did not, pro se, file a notice of appeal,and Wendy did not sign the notice of ap-peal filed by John. The fact that Johnprinted his and Wendy’s name and addressin the address block of the notice of appealis no indication that John was attemptingto appeal on behalf of Wendy.

[4] Moreover, even if the notice of ap-peal were construed as an effort by Johnto appeal on behalf of Wendy, it would stillbe insufficient to confer appellate jurisdic-tion over Wendy’s appeal. One spouse’ssignature on a pleading, legal document,contract, etc., which is intended by thesigner to be on behalf of both spouses, isnot by itself sufficient to make the signingspouse an agent of the non-signing spouseor to include the non-signing spouse. See,e.g., Routzahn v. Cromer, 220 Md. 65, 70,150 A.2d 912, 915 (1959) (A contract signedby the husband, and intended to includehis wife, did not include his wife as ‘‘therelationship of principal and agent betweena husband and wife may not be impliedsolely from the marital status of the par-ties’’); William Penn Supply Corp. v.Watterson, 218 Md. 291, 296, 146 A.2d 420,422 (1958) (A materialman could not en-force a mechanics’ lien because the noticeto the husband was not received by thewife, and the Court has ‘‘consistently heldthat the relationship of principal and agentbetween a husband and wife may not beimplied from the marital status of the par-ties’’); White v. Friel, 210 Md. 274, 284,123 A.2d 303, 308 (1956) (‘‘The husband isnot the agent of the wife merely because ofthe husband-wife relationship’’); Bukowitzv. Maryland Lumber Company, 210 Md.148, 153, 122 A.2d 486, 488 (1956) (same);Twilley v. Bromley, 192 Md. 465, 470–471,64 A.2d 553, 556 (1949) (‘‘Neither the exis-tence of the relationship of husband andwife, standing alone, nor knowledge by herof his intention TTT, together with failureon her part to object, is sufficient to consti-tute him her agent’’); Ridgeley v. Cran-dall, 4 Md. 435 (1853) (A pleading filed bythe husband, and intended to include hiswife, did not include the wife, and she wasnot properly a party to the action). Inlight of these decisions, as well as manymore opinions of this Court, John’s signa-ture on a notice of appeal did not make


Wendy a party to the appellate proceed-ings.

[5–7] As to John’s appeal, the issue iswhether he is attempting to appeal from ajudgment to which he consented or ac-quiesced. It is well-settled that a party inthe trial court is not entitled to appealfrom a judgment or order if that partyconsented to or acquiesced in that judg-ment or order. Furthermore, this is anissue which an appellate court will addresseven if the right to appeal is not contestedby another party. Globe American Casu-alty Company v. Chung, 322 Md. 713, 589A.2d 956 (1991). As Judge Bell pointedout for the Court in Osztreicher v. Juante-guy, 338 Md. 528, 534, 659 A.2d 1278, 1281(1995), ‘‘[i]t is well settled in Maryland thatthe right to appeal may be lost by acquies-cence in, or recognition of, the validity ofthe decision below from which the appealis taken or by otherwise taking a positionwhich is inconsistent with the right of ap-peal’’ (internal quotation marks omitted).See also, e.g., Parker v. State, 402 Md. 372,405, 936 A.2d 862, 882 (2007); Suter v.Stuckey, 402 Md. 211, 222–225, 935 A.2d731, 738–740 (2007); Franzen v. Dubinok,290 Md. 65, 68–69, 427 A.2d 1002, 1004–1005 (1981); Lohss and Sprenkle v. State,272 Md. 113, 118–119, 321 A.2d 534, 537–538 (1974).

[8] The status of John in these appel-late proceedings presents a closer issuethan the status of Wendy. Although thefederal statute may generally give Johnstanding as a parent of a Native Americanchild, the federal act does not purport toabrogate settled procedural rules such asthe principle that a party in the trial courtmay not appeal from a judgment in whichthat party acquiesced.

If the portion of the Circuit Court’sjudgment regarding the custody of thechildren were the focal point of John’sappeal, it is likely that his appeal wouldhave to be dismissed under the principle

that one may not appeal from a judgmentin which he or she acquiesced. At thefinal Circuit Court hearing in July 2006,John acknowledged that he was unable tocare for the children and that he was notseeking custody. He recommended thatthe children be placed in the custody ofWendy or, if not Wendy, in the custody ofDenise. Several days earlier, John hadtold the Department that Wendy’s homewas unsafe and that he wanted the chil-dren to remain in Denise’s custody.

Nevertheless, John did oppose the clo-sure of the CINA case, and the Court ofSpecial Appeals’ decision was to vacate theclosure of the case. Thus, John’s objectionto the Circuit Court’s order closing theCINA case was sustained by the Court ofSpecial Appeals. Consequently, John wasaggrieved by the Circuit Court’s judgment.He did have standing to appeal that judg-ment, and he is an appropriate respondentin this Court.

IV.

As mentioned earlier, the Court of Spe-cial Appeals’ decision appeared to bebased, in part, upon the Circuit Court’sfailure, in its findings of fact, to use thespecific language of the federal IndianChild Welfare Act of 1978. In addition,John B. in this Court relies heavily on the‘‘active efforts’’ language of the federalstatute.

[9] While the Department and the Cir-cuit Court may not have used the languageof the federal statute, what is important iswhether the Department in substancemade active efforts to prevent the breakupof the family, whether those efforts wereunsuccessful, and whether the CircuitCourt’s findings reflected that active ef-forts were in fact made and were unsuc-cessful.


[10] As numerous opinions of thisCourt teach, we should examine the sub-stance of the Department’s and CircuitCourt’s actions; we should not decide thecase based upon the use, or failure to use,the statutory label ‘‘active efforts.’’ Thegoverning principle is that, in applyingstatutes, other enactments, pleadings, orlegal principles, ‘‘courts must ordinarilylook beyond labels TTT and make determi-nations based on TTT substance,’’ Piven v.Comcast Corporation, 397 Md. 278, 290,916 A.2d 984, 991 (2007). See, e.g., In reDeontay J., 408 Md. 152, 160, 968 A.2d1067, 1071 (2009) (relying upon ‘‘the wellestablished principle ‘that the substancerather than the form TTT is the controllingconsideration’ ’’); Alitalia v. Tornillo, 320Md. 192, 195, 577 A.2d 34, 36 (1990) (‘‘Ordi-narily, ‘magic words’ are not essentialTTTT

Courts and administrative agencies are ex-pected to look at the substance’’); Matterof Spalding, 273 Md. 690, 703, 332 A.2d246, 253 (1975) (‘‘[I]t is clear that labelsare not controlling in determining the ap-plicability of’’ a constitutional provision);Korzendorfer Realty v. Bufalo, 264 Md.293, 296, 286 A.2d 142, 144 (1972) (‘‘It haslong been held that substance takes prece-dence over form’’). See also, e.g., Murrellv. Baltimore, 376 Md. 170, 193–196, 829A.2d 548, 563 (2003); Kant v. MontgomeryCounty, 365 Md. 269, 274, 778 A.2d 384,386–387 (2001); Gisriel v. Ocean CityElections Board, 345 Md. 477, 500, 693A.2d 757, 768 (1997), cert. denied, 522 U.S.1053, 118 S.Ct. 702, 139 L.Ed.2d 645(1998); Gluckstern v. Sutton, 319 Md. 634,650–651, 574 A.2d 898, 906 cert. deniedsub. nom., Henneberry v. Sutton, 498 U.S.950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990);Lapp v. Stanton, 116 Md. 197, 199, 81 A.675, 676 (1911).

Turning specifically to cases applyingthe federal Indian Child Welfare Act of1978, appellate courts generally examinethe actual evidence in the case instead ofrequiring trial courts to use the phraseolo-

gy of the federal statute. For example, inIn Interest of J.S.B., Jr., 691 N.W.2d 611(S.D.2005), the trial court had held that thefederal statute and the ‘‘active efforts’’standard were not applicable to the case.The Supreme Court of South Dakota disa-greed with this conclusion and held thatthe federal statute was applicable. None-theless, the South Dakota Supreme Courtaffirmed on the ground that, ‘‘despite the[trial] court’s erroneous ruling, the recordreflects that the Department of Social Ser-vices TTT [did in fact] provide ‘active ef-forts’ to reunify the family, but such ef-forts were unsuccessful.’’ 691 N.W.2d at613. See also, e.g., A.A. v. State of Alaska,Department of Family & Youth Services,982 P.2d 256, 261 (Alaska 1999) (‘‘In accor-dance with other jurisdictions’ case-by-caseapproach, we have held that ‘no pat formu-la’ exists for distinguishing between activeand passive efforts’’) (footnotes omitted);In the Matter of M.D.M., 313 Mont. 51, 56,59 P.3d 1142, 1146 (2002) (In a case underthe federal statute, a reversal because ofthe trial court’s failure to set forth a perti-nent legal conclusion ‘‘would be to elevateform over substance’’); In the Matter ofH.J., 149 P.3d 1073, 1077 n. 3, 1078 (Okla.Civ.App.2006) (After pointing out thatthere is no precise definition of what con-stitutes ‘‘active efforts’’ under the federalstatute, and that it should be ‘‘ ‘determinedby the appellate court on a case by casebasis,’ ’’ the court held that the actual evi-dence before the trial court was determi-native).

The Nebraska Court of Appeals, ‘‘notingthe principle that the law respects formless than substance,’’ went on to point out,regarding cases under the federal IndianChild Welfare Act of 1978, ‘‘that each caseis dependent upon its particular facts andcircumstances.’’ In re Interest of EnriqueP., 14 Neb.App. 453, 469, 709 N.W.2d 676,689 (2006) (Internal quotation marks omit-ted). The Nebraska Court, in language


that would largely be applicable to thepresent case, concluded (14 Neb.App. at471, 709 N.W.2d at 689–690):

‘‘[T]he juvenile court did not articulate astandard by which it made its findings;nor did it make a finding, supported bytestimony of qualified expert witnesses,that active but unsuccessful efforts hadbeen made to prevent the breakup of theIndian family or that continued custodyof the children by [their mother] Shan-non was likely to result in serious emo-tional or physical damage. * * * [W]efind that any error related to the juve-nile court’s failure to specifically statethe foregoing was harmless error in thatthe evidence would have supported theseICWA [Indian Child Welfare Act] find-ings.

‘‘In sum, we first find that there wasclear and convincing evidence to supporta finding that active efforts had beenmade to prevent the breakup of thisfamily—which efforts included therapy,placement, case management, psychiat-ric and chemical dependency evalua-tions, visitation services, transportationassistance with visitation, parenting anddomestic violence classes, and randomurine analysis—and that such effortswere unsuccessful. Second, * * * theevidence adduced by the State at thedispositional hearing clearly and con-vincingly supports TTT a finding of harm[if the children were returned to thecustody of their mother, Shannon].Shannon’s psychological evaluation indi-cated that Shannon had a history ofdrug and alcohol abuse, and her diag-noses included major depressive disor-der, alcohol dependence, adjustment dis-order with anxiety, and antisocial anddepressive personality features. Theconclusions of the evaluation indicatedthat Shannon’s parenting problemsstemmed from her addiction, rather thana psychopathology, and that while Shan-non completed her inpatient chemical

dependency treatment, she failed tocomplete outpatient treatment and didnot provide verification that she was at-tending Alcoholics Anonymous or Nar-cotics Anonymous meetings or that shehad obtained a ‘sponsor.’ Shannon didnot submit to all of the requested urinal-ysis screenings. In addition, Shannondid not address her domestic violenceissues through a group setting orthrough individual therapy; nor did sheattend parenting classes. Shannon hadno proper housing or employment, andher visitation with her children was spo-radic. Based upon the psychologicalevaluation and the caseworkers’ courtreports, it has been clearly and convinc-ingly shown that custody with Shannonwould result in serious emotional orphysical damage to the children.’’

For the most part, the above-quoted sum-mary could be used to describe the circum-stances regarding Wendy B. and John B.

[11] The facts in the case at bar, re-viewed in detail in Part I of this opinion,demonstrate that the Department didmake ‘‘active efforts’’ to reunify the family,that those efforts were unsuccessful, thatthe trial court’s findings reflected the un-successful active efforts made by the De-partment, and that the trial court was fullyjustified in closing the CINA case. Aspreviously set forth, the Court of SpecialAppeals acknowledged that ‘‘[w]e do notknow exactly what additional services theDepartment could have provided.’’ In reNicole B. and Max B., supra, 175 Md.App.at 473, 927 A.2d at 1207. The brief in thisCourt on behalf of John B., in the argu-ment portion, makes only two commentswhich seem to be specific to the facts ofthis case and relate to the Department’salleged failure to make active efforts.First, it is asserted that

‘‘facilitating visitation and ‘working with’therapists and teachers TTT show[s] thatit [the Department] may have taken rea-


sonable steps, but it has not taken activeones.’’ (Brief of the Respondent JohnB. at 15).

Second, John B.’s brief states that‘‘parents beset by drug addiction, mentalillness, and the like, may turn out to besalvageable, despite predictable set-backs, if the involved social servicesagency expends sufficient efforts.’’ (Id.at 16).

Neither the Court of Special Appeals norany parties in this case have shown whatadditional efforts, which the Department islegally and fiscally authorized to do, couldhave been done to reunify the family with-out harm to the children.

The record in this case establishes thatthe Department offered numerous servicesto both John B. and Wendy B. While therewere certain pre-conditions to some ofthese services, such as the requirementthat each have six clean urine screensprior to his or her enrollment in mentalhealth counseling, or a demonstrated com-mitment to sobriety before offering certainassistance, such prerequisites do not makethe efforts of the Department insufficientsimply because the parents failed to com-ply. Although not a case under the feder-al statute, In re Adoption/Guardianship ofRashawn H. and Tyrese H., 402 Md. 477,937 A.2d 177 (2007), is pertinent. In thatcase, this Court explained that the servicesoffered by the Department must be ‘‘de-signed to address both the root causes andthe effect of the problem,’’ but noted that‘‘[t]here are some limits, however, to whatthe State is required to do.’’ 402 Md. at500, 937 A.2d at 191. The Court specified(402 Md. at 500–501, 937 A.2d at 191):

‘‘The State is not obliged to find employ-ment for the parent, to find and pay forpermanent and suitable housing for thefamily, TTT or to cure or ameliorate anydisability that prevents the parent frombeing able to care for the child. It mustprovide reasonable assistance in helping

the parent to achieve those goals, but itsduty to protect the health and safety ofthe children is not lessened and cannotbe cast aside if the parent, despite thatassistance, remains unable or unwillingto provide appropriate care.’’

Courts have accepted a wide array ofactions by social services organizations asmeeting the federal Indian Child WelfareAct’s ‘‘active efforts’’ standard. In In theMatter of A.N., 325 Mont. 379, 382, 106P.3d 556, 559 (2005), the Montana Su-preme Court reviewed a case where thefather of two Indian children was accusedof abuse and neglect, and was given treat-ment plans by the Department of PublicHealth and Human Services. The treat-ment plans included many of the sameservices offered to John B. and Wendy B.,including chemical dependency evaluations,drug screens, counseling sessions, parent-ing classes, and meetings with the socialworker. Where the father completed onlythree of the thirteen tasks assigned to himand showed up intoxicated outside the fos-ter home, the court concluded that the‘‘Department’s efforts were as active aspossible’’ in light of the father’s unavaila-bility. In the Matter of A.N., supra, 325Mont. at 385, 106 P.3d at 561. In responseto the father’s claim that the Departmentfailed to provide ‘‘active efforts’’ as re-quired under the federal statute, the Su-preme Court of Montana explained (325Mont. at 385, 106 P.3d at 561):

‘‘The Department’s efforts were as ac-tive as possible. It was [the] Father’sapparent apathy and indifference thatprevented him from completing histreatment plans. Without any involve-ment, even to the absolute minimal levelof giving [the social worker] his contactinformation, [the] Father prevented theDepartment from making active effortsat providing more intensive services.’’

The Supreme Court of Alaska, in E.A. v.State Div. of Family & Youth Services, 46


P.3d 986, 991 (Alaska 2002), held that ‘‘ ‘aparent’s demonstrated lack of willingnessto participate in treatment may be consid-ered in determining whether the state hastaken active efforts.’ ’’ The Alaska Su-preme Court recognized that where theDepartment of Family and Youth Services’efforts consisted ‘‘largely of failed attemptsto contact [the mother] or obtain informa-tion from her rather than the provision ofservices, [the mother’s] evasive, combativeconduct rendered provision of servicespractically impossible.’’ 46 P.3d at 990.See also In re J.S.B, Jr., supra, 691N.W.2d at 621, where the South DakotaSupreme Court held that the ‘‘active ef-forts’’ requirement of the federal statutewas satisfied when a father continued toabuse alcohol and failed to complete anoutpatient treatment program.

In the present case, the Departmentmade extensive active efforts to reunifyNicole and Max with their parents, whilestill attempting to locate a permanentplacement with stability and safety for thechildren. The Department’s efforts ex-tended over 14 months, with five ‘‘ReviewReports’’ and five Circuit Court hearings.The active efforts by the Department tohelp reunify the children with their par-ents were continually rebuffed or hinderedby John B. and Wendy B. John and Wen-dy continued their substance abuse, failedto follow the Department’s recommenda-tions regarding that abuse, failed to securestable housing for themselves and the chil-dren, failed to show up for various sched-uled appointments or visitation with thechildren, could not be located on many

occasions, and generally failed to availthemselves of the help offered to themfrom the Department.

In the language of the Indian Child Wel-fare Act of 1978, 25 U.S.C. § 1912(d), therecord shows ‘‘that active efforts’’ were‘‘made to provide remedial services andrehabilitative programs designed to pre-vent the breakup of the’’ family in thiscase, ‘‘and that these efforts have provedunsuccessful.’’ 9

JUDGMENT OF THE COURT OFSPECIAL APPEALS REVERSED ANDCASE REMANDED TO THE COURTOF SPECIAL APPEALS WITH DI-RECTIONS TO GRANT THE MOTIONTO DISMISS WENDY B’s APPEALAND, OTHERWISE, TO AFFIRM THEJUDGMENT OF THE CIRCUIT COURTFOR MONTGOMERY COUNTY.COSTS IN THIS COURT AND IN THECOURT OF SPECIAL APPEALS TO BEPAID BY THE RESPONDENT JOHN B.

BELL, C.J., and RAKER, J., Dissent.

RAKER, J. dissenting, joined by BELL,C.J.:

I respectfully dissent. I agree with thewell-reasoned opinion of the Court of Spe-cial Appeals, Judge Sally Adkins writingfor the majority, in which the court heldthat ‘‘the ‘active efforts’ standard [of theICWA] requires more effort than a ‘rea-sonable efforts’ standard does [under § 5–525 of the Family Law Article of the Ma-ryland Code].’’ In re Nicole B., 175 Md.App. 450, 472, 927 A.2d 1194, 1206 (2007).

I disagree with the majority’s decision toavoid answering the certiorari question 1 in

9. Judge Raker’s dissenting opinion accusesthe majority of ‘‘usurp[ing] the role of thetrial court and TTT mak[ing] first level find-ings of fact.’’ Actually, we have not made asingle ‘‘first level finding of fact.’’ What wehave done is to review extensively the evi-dence in the trial court record, which evi-dence is basically undisputed. The purpose

of such review is to show that the trial judge’sdecision was supported by the evidence andto show that the ‘‘active efforts’’ standard ofthe federal statute was met by the evidence inthe trial court’s record. This is one of thenormal functions of an appellate court.

1. The certiorari question reads as follows:


this case, i.e., whether ‘‘reasonable efforts’’as used in the Federal statute, differ from‘‘active efforts’’ as used in the Family LawArticle.2 Second, I do not believe it isappropriate for this Court to usurp therole of the trial court and to make firstlevel findings of fact. The trial court usedthe wrong standard when it concluded thatthe Department made reasonable effortsto achieve reunification with the children’sparents. Accordingly, I would hold thatthe ICWA requirement that active effortshave been made to provide remedial ser-vices and rehabilitative programs designedto prevent the breakup of the Indian fami-ly have proved unsuccessful is a differentstandard than that set out in § 5–525 ofthe Family Law Article of the MarylandCode which requires that reasonable ef-forts have been made.

Ms. B. is a registered member of theYankton Sioux Tribe. Max B. is also aregistered member of the Tribe and NicoleB. is eligible for membership. According-ly, pursuant to the ICWA, Max B. andNicole B. are ‘‘Indian children’’ and theTribe is entitled to notice and the right ofintervention in any involuntary proceedingin a State court regarding foster careplacement or termination of parentalrights. 25 U.S.C. § § 1903(4), 1911(c),1912(a) (2006). According to the Depart-ment report, the Department ‘‘made ef-forts’’ to contact the Tribe to inform theTribe that Max B. had been committed tothe Department’s care. At the secondpermanency plan review hearing in De-cember, a representative of the Tribe

moved to intervene in the case pursuant to25 U.S.C. § 1911(c), a provision of theICWA, which allows for intervention bythe Indian custodian or Indian tribe at anypoint in a State court proceeding prior tothe foster care placement of, or termi-nation of parental rights to, an Indianchild. 25 U.S.C. § 1911(c). At the hear-ing, the tribal representative indicated thatthe Tribe was searching for relatives ofNicole B. and Max B. within the Tribe, butno relatives had yet been found. The Ju-venile Court continued the hearing to allowthe representative to file the proper plead-ing to intervene.3

At the July 21, 2006 permanency planreview hearing, the Department represent-ed that the children should remain in thecare of their aunt and that the courtshould rescind its jurisdiction over theplacement and close the case. The attor-ney for both children agreed with the De-partment and asked the court to close thecase, stating that keeping the case openwould ‘‘make things more unstable for thechildren.’’ The Tribe maintained that theDepartment had not complied with theICWA because the Department had notmade ‘‘active efforts’’ as required by theAct. The Tribe sought to ‘‘be allowed tocontinue with discovery, to see more ofwhat’s happening in the file, to work withthe Department of Social Services to do arelative search for relatives at the reserva-tion, and to discuss with the aunt ways inwhich she can, and should, and must, un-der federal law, assist these children inmaintaining contact with the Tribe.’’ The

‘‘Are ‘active efforts’ to prevent the breakupof an Indian family under ICWA equivalentto ‘reasonable efforts’ to preserve and reu-nify families under federal and Marylandlaw, so that further, futile reunification ef-forts are unnecessary when foster place-ment is in a Native American child’s provenbest interest?’’

In re Nicole B., 402 Md. 36, 935 A.2d 406(2007).

2. Did this Court really take this case to makethe factual determination that the Departmentof Social Services actually made ‘‘active ef-forts’’ to reunite this family?

3. The Juvenile Court granted the Tribe’s mo-tion at the April permanency plan hearing.


court responded that it did not fault theCounty for not finding a relative. Thecourt noted that the Tribe has been onnotice and that no one has ‘‘come forwardsaying, I am a Tribe relative of this childand I’d like to be part of the child’s life.’’The court suggested that referrals by theCounty to outside parenting programscould be ‘‘active efforts’’ but made no ex-plicit finding that the Department’s actionsin this case amounted to ‘‘active efforts’’ toprevent the breakup of the Indian family.

In its ‘‘Review and Order of Closure,’’the Juvenile Court ruled that ‘‘reasonableefforts have been made by the Montgom-ery County Department of Health and Hu-man Services (hereinafter the ‘‘Depart-ment’’) to achieve Reunification with theparents TTT’’ and ordered the CINA caseto be closed. (Emphasis added). Thecourt ordered that the children be placedwith a relative for custody and guardian-ship and that the children’s paternal aunt,Denise P., have full care, custody andguardianship of the children. Nowhere inthe Order did the court mention the ICWAor ‘‘active efforts.’’

The ICWA requires that before any par-ty may effect a foster care placement of, ortermination of parental rights to, an Indianchild under State law, the court must besatisfied that active efforts have beenmade to provide remedial services and re-habilitative programs designed to preventthe breakup of the Indian family. Section5–525 of the Family Law Article of theMaryland Code requires that reasonableefforts shall be made to preserve and reu-nify families prior to placement of a childin an out-of-home placement. Based uponthe plain language of the ICWA, as well asthe legislative history of the federal act, Iconclude, as did the Court of Special Ap-peals and a majority of our sister states,that ‘‘active efforts’’ under the ICWA arenot the same as ‘‘reasonable efforts’’ under§ 5–525. Accordingly, because the trial

judge did not consider whether the De-partment engaged in active efforts to pre-vent the breakup of the Indian family, Iwould remand this case to the CircuitCourt for Montgomery County, sitting asthe Juvenile Court, for the court to recon-sider the matter under the proper stan-dard.

As noted by the Court of Special Ap-peals, whether the Department has made‘‘active efforts’’ under the ICWA is often amixed question of law and fact. 175 Md.App. at 461, 927 A.2d at 1200. The Courtof Special Appeals discussed the ‘‘activeefforts’’ requirement, noting as follows:

‘‘Definitions of ‘active efforts’ under thefederal statute vary by state, and whatconstitutes ‘active efforts’ is usually factspecific. The majority of courts thathave considered the ‘active efforts’ re-quirement, however, have determinedthat it sets a higher standard for socialservices departments than the ‘reason-able efforts’ required by state statutes.See In re Welfare of Children of S. W.,727 N.W.2d 144, 150 (Minn.Ct.App.2007), review denied, Mar. 28, 2007(Minnesota Tribal/State Indian ChildWelfare Agreement defines the term ‘ac-tive efforts’ as ‘thorough, careful, andculturally appropriate efforts’); WinstonJ. v. Alaska, Dept. of Health and Soc.Servs., Ofc. of Children’s Servs., 134P.3d 343, 347 n. 18 (Alaska 2006) (statingthat the ICWA’s ‘active efforts’ require-ment is more demanding than the ‘rea-sonable efforts’ required by the statestatute); In re Interest of Dakota L., 14Neb.App. 559, 712 N.W.2d 583, 594(2006) (recognizing that the ‘active ef-forts’ provision in the state’s ICWA is‘separate and distinct’ from the ‘‘reason-able efforts’’ in the state statute); In reA.N., 325 Mont. 379, 106 P.3d 556, 560(2005) (determining that ‘[t]he term ac-tive efforts, by definition, implies height-ened responsibility compared to passive


efforts. Giving the parent a treatmentplan and waiting for him to complete itwould constitute passive efforts’).’’

Id. at 471, 927 A.2d at 1206.The term ‘‘active efforts’’ is found in 25

U.S.C. § 1912(d) (2006) of the ICWA,which reads, in pertinent part, as follows:

‘‘Any party seeking to effect a fostercare placement of, or termination of pa-rental rights to, an Indian child underState law shall satisfy the court thatactive efforts have been made to provideremedial services and rehabilitative pro-grams designed to prevent the breakupof the Indian family and that these ef-forts have proved unsuccessful.’’

§ 1912(d). ‘‘Reasonable efforts’’ is con-tained in § 5–525 of the Family Law Arti-cle of the Maryland Code,4 which reads, inpertinent part, as follows:

‘‘(d)(1) Unless a court orders that rea-sonable efforts are not required under§ 3–812 of the Courts Article or § 5–323of this title, reasonable efforts shall bemade to preserve and reunify families:

(i) prior to the placement of a child inan out-of-home placement, to preventor eliminate the need for removing thechild from the child’s home; and(ii) to make it possible for a child tosafely return to the child’s home.

(2) In determining the reasonable ef-forts to be made and in making thereasonable efforts described under para-graph (1) of this subsection, the child’ssafety and health shall be the primaryconcern.(3) Reasonable efforts to place a childfor adoption or with a legal guardianmay be made concurrently with the rea-sonable efforts described under para-graph (1) of this subsection.

(4) If continuation of reasonable effortsto reunify the child with the child’s par-ents or guardian is determined to beinconsistent with the permanency planfor the child, reasonable efforts shall bemade to place the child in a timely man-ner in accordance with the permanencyplan and to complete the steps to finalizethe permanent placement of the child.’’

§ 5–525 (emphasis added).

The two statutes differ most strikinglyin their description of the ‘‘efforts’’ thatmust be made towards reunification. TheICWA provides that a party seeking afoster care placement must satisfy thecourt ‘‘that active efforts have been madeto provide remedial services and rehabili-tative programs designed to prevent thebreakup of the Indian family.’’ § 1912(d)(emphasis added). The Family Law Arti-cle provides, however, that the court mustmake a finding that ‘‘reasonable effortsTTT be made to preserve and reunify fami-lies.’’ ‘‘Active’’ and ‘‘reasonable’’ are notnecessarily synonymous. Black’s LawDictionary defined reasonable, in pertinentpart, as follows: ‘‘reasonable. adj. 1. Fair,proper, or moderate under the circum-stances ¢reasonable pay$. 2. According toreasonTTTT’’ BLACK’S LAW DICTIONARY 1272(7th ed. 1999). In 1997, Webster’s CollegeDictionary defined active, in pertinentpart, as follows:

‘‘active. adj. 1. engaged in action oractivity; characterized by energeticwork, motion, etc. ¢an active life.$ 2.being in existence, progress or motion:active hostilities. 3. Marked by or dis-posed to direct involvement in practicalaction TTTT 8. capable of exercising influ-

4. The subsection was amended in 2001 toreflect a change in numbering of current § 5–323 of the Family Law Article. 2001 Md.Laws, ch. 415, § 6. Recent amendments thattook effect on October 1, 2008, provide for

consideration of out-of-state placement in ad-dition to in-state placement and do not other-wise effect the substance of the ‘‘reasonableefforts’’ standard. 2008 Md. Laws, ch. 16.


ence (opposed to passive): active trea-sonTTTT’’

RANDOM HOUSE WEBSTER’S COLLEGE DICTIO-

NARY 13–14 (2d ed. 1997). While some-thing that is ‘‘active’’ might also be ‘‘rea-sonable,’’ something ‘‘reasonable’’ is notnecessarily ‘‘active.’’ The two terms arenot equivalent in meaning.

The definitions of ‘‘active’’ and ‘‘reason-able,’’ standing alone, do not fully explainthe kinds of efforts the Department mustmake under § 1912(d)’s ‘‘active efforts’’standard. The historical context of thefederal ‘‘active efforts’’ requirement andMaryland’s provision for ‘‘reasonable ef-forts’’ provides insight into the statutes’use of different terms to describe the levelof services a social services agency mustprovide in an attempt to achieve familyreunification before an out-of-home place-ment is finalized.

The ICWA was passed by Congress in1978 as the result of a growing concernthat state child welfare services wereharming Indian children and Indian tribesby removing Indian children from theirhomes and placing them with non-Indianfamilies unnecessarily and in too great anumber. In considering the history of theICWA, the United States Supreme Courthas explained as follows:

‘‘Senate oversight hearings in 1974yielded numerous examples, statisticaldata, and expert testimony documentingwhat one witness called ‘[t]he wholesaleremoval of Indian children from theirhomes, TTT the most tragic aspect ofIndian life today.’ INDIAN CHILD WEL-

FARE PROGRAM, HEARINGS BEFORE THE SUB-

COMMITTEE ON INDIAN AFFAIRS OF THE SEN-

ATE COMMITTEE ON INTERIOR AND INSULAR

AFFAIRS, 93d Cong., 2d Sess., 3 (state-ment of William Byler) (hereinafter 1974Hearings). Studies undertaken by theAssociation on American Indian Affairsin 1969 and 1974, and presented in theSenate hearings, showed that 25 to 35%

of all Indian children had been separat-ed from their families and placed inadoptive families, foster care, or institu-tions. Id., at 15; see also H.R. REP. No.95–1386, p. 9 (1978) (hereinafter HouseReport), U.S. CODE CONG. & ADMIN. NEWS

1978, pp. 7530, 7531. Adoptive place-ments counted significantly in this total:in the State of Minnesota, for example,one in eight Indian children under theage of 18 was in an adoptive home, andduring the year 1971–1972 nearly one inevery four infants under one year of agewas placed for adoption. The adoptionrate of Indian children was eight timesthat of non-Indian children. Approxi-mately 90% of the Indian placementswere in non-Indian homes. 1974 Hear-ings, at 75–83. A number of witnessesalso testified to the serious adjustmentproblems encountered by such childrenduring adolescence,[ ] as well as the im-pact of the adoptions on Indian parentsand the tribes themselves. See general-ly 1974 Hearings.Further hearings, covering much thesame ground, were held during 1977 and1978 on the bill that became theICWA.[ ] While much of the testimonyagain focused on the harm to Indianparents and their children who were in-voluntarily separated by decisions of lo-cal welfare authorities, there was alsoconsiderable emphasis on the impact onthe tribes themselves of the massive re-moval of their children. For example,Mr. Calvin Isaac, Tribal Chief of theMississippi Band of Choctaw Indiansand representative of the National Trib-al Chairmen’s Association, testified asfollows:

‘Culturally, the chances of Indian sur-vival are significantly reduced if ourchildren, the only real means for thetransmission of the tribal heritage, areto be raised in non-Indian homes anddenied exposure to the ways of their


People. Furthermore, these practicesseriously undercut the tribes’ abilityto continue as self-governing commu-nities. Probably in no area is it moreimportant that tribal sovereignty berespected than in an area as sociallyand culturally determinative as familyrelationships.’ 1978 Hearings, at 193.

See also id., at 62. Chief Isaac alsosummarized succinctly what numerouswitnesses saw as the principal reason forthe high rates of removal of Indian chil-dren:

‘One of the most serious failings of thepresent system is that Indian childrenare removed from the custody of theirnatural parents by nontribal govern-ment authorities who have no basisfor intelligently evaluating the culturaland social premises underlying Indianhome life and childrearing. Many ofthe individuals who decide the fate ofour children are at best ignorant ofour cultural values, and at worst con-temptful of the Indian way and con-vinced that removal, usually to a non-Indian household or institution, canonly benefit an Indian child.’ Id., at191–192.[ ]

* * *

The ICWA thus, in the words of theHouse Report accompanying it, ‘seeks toprotect the rights of the Indian child asan Indian and the rights of the Indiancommunity and tribe in retaining itschildren in its society.’ House Report,at 23, U.S. CODE CONG. & ADMIN. NEWS

1978, at 7546. It does so by establishing‘a Federal policy that, where possible, anIndian child should remain in the Indiancommunity,’ ibid., and by making surethat Indian child welfare determinationsare not based on ‘a white, middle-classstandard which, in many cases, fore-closes placement with [an] Indian fami-ly.’ Id., at 24, U.S. CODE CONG. & ADMIN.

NEWS 1978, at 7546.’’

Mississippi Band of Choctaw Indians v.Holyfield, 490 U.S. 30, 32–37, 109 S.Ct.1597, 1600–02, 104 L.Ed.2d 29 (1989). Asa result of the 1977 and 1978 hearings,Congress incorporated the following find-ings into ICWA:

‘‘(3) [T]hat there is no resource that ismore vital to the continued existenceand integrity of Indian tribes than theirchildren and that the United States hasa direct interest, as trustee, in protect-ing Indian children who are members ofor are eligible for membership in anIndian tribe;

(4) that an alarmingly high percentageof Indian families are broken up by theremoval, often unwarranted, of theirchildren from them by nontribal publicand private agencies and that an alarm-ingly high percentage of such childrenare placed in non-Indian foster andadoptive homes and institutions; and

(5) that the States, exercising their rec-ognized jurisdiction over Indian childcustody proceedings through administra-tive and judicial bodies, have often failedto recognize the essential tribal relationsof Indian people and the cultural andsocial standards prevailing in Indiancommunities and families.’’

25 U.S.C. § 1901 (2000). See also 490 U.S.at 35–36, 109 S.Ct. at 1601.

The Adoption and Safe Families Act of1997 (ASFA), Pub.L. No. 105–89, 111 Stat.2115 (codified as amended at 42 U.S.C.§ 1305 and scattered sections of the SocialSecurity Act), in contrast, was designed topromote and hasten the adoption of chil-dren in foster care and to facilitate theremoval of children from abusive families.See In re Karl H., 394 Md. 402, 420 n. 15,906 A.2d 898, 908 n. 15 (2006). The Mary-land General Assembly implemented theprovisions of ASFA to comply with federallaw and secure the financial benefits of


compliance in 1998.5 1998 Md. Laws, Ch.539, In re Karl H. at 420–21, 906 A.2d at908. The ‘‘main focus of the act was toaccelerate the placement of foster childrenin adoptive homes.’’ In re Karl H., 394Md. at 421, 906 A.2d at 909. The provisionthat ‘‘reasonable efforts shall be made topreserve and reunify families’’ mirrors anidentical provision in ASFA. 42 U.S.C.§ 671(a)(15)(B) (2006).

The ICWA and ASFA have differentaims—the ICWA is concerned with creat-ing a measured, and, as a result, potential-ly slower 6 process for separating an Indi-an child from the family, while ASFA isconcerned with expediting the removalprocess when it proves necessary toachieve a higher level of permanency forchildren in out-of-home placementsthrough adoption. Although ASFA con-tains no specific explanation of the interac-tion between the ‘‘reasonable efforts’’ stan-dard it introduced and the provision for‘‘active efforts’’ contained in the ICWA,ASFA provides that it ‘‘shall not be con-strued to affect the application of the Indi-an Child Welfare Act of 1978.’’ 42U.S.C.A. § 674(d)(4) (2009).

In People ex rel. J.S.B., Jr., the SouthDakota Supreme Court explained the dif-ference between the ICWA and ASFA,taking into account their different histori-cal underpinnings, as follows:

‘‘ICWA differs from ASFA in its meansof promoting Indian children’s best in-terests. ICWA ensures the best inter-ests of Indian children by maintaining

their familial, tribal, and cultural ties.It seeks to prevent capricious severanceof those ties, whereas ASFA identifiespermanency as a major consideration inpromoting the best interests of children.A further distinction between the twoacts TTT is the requirement in ICWAthat state agencies make ‘active’ effortsto provide services aimed at the preven-tion of a family breakup. ICWA pro-vides no exception to this mandate. Onthe other hand, in an attempt to assiststates in increasing the speed withwhich children might achieve the desiredgoal of permanency TTT ASFA relievesstates from making merely perfunctoryremedial efforts in cases where a courthas found that the parent has subjectedthe child to aggravated circumstances ofabuse or neglect.’’

People ex rel. J.S.B., Jr., 691 N.W.2d 611,617 (S.D.2005). Noting that ASFA doesnot trump the ICWA, the South Dakotacourt continued:

‘‘If it is perhaps open to question wheth-er our Legislature understood the terms‘reasonable efforts’ and ‘active efforts’ tobe interchangeable, we do not thinkCongress intended that ASFA’s ‘aggra-vated circumstances’ should undo theState’s burden of providing ‘active ef-forts’ under ICWA. Three rules of statu-tory construction dictate otherwise.First, ICWA clearly offers no exceptionto its requirement of ‘active efforts.’And ASFA does not mention ICWA,much less state that its exceptions to

5. The Federal government, under ASFA, pro-vided up to $6,000 per child to assist in in-creasing the number of adoptions of childrenplaced out of the home. 42 USCA§ 673b(d)(1)(A)-(B) (2003); William WesleyPatton and Amy M. Pellman, The Reality ofConcurrent Planning: Juggling Multiple Fami-ly Plans Expeditiously Without Sufficient Re-sources, 9 U.C. DAVIS J. JUV. L. & POL’Y 171,175 (2005).

6. The ICWA allows for a transfer of jurisdic-tion to tribal court, notification to the Indiantribe and an additional 20 days to prepareupon request by the tribe, and withdrawal ofthe parents’ consent to voluntary placementor adoption, among other measures. See 25U.S.C. §§ 1911(b), 1912(a), 1913(b)-(d)(2006). These special protections can causethe process of foster care placement or termi-nation of parental rights to take longer thancases in which the ICWA does not apply.


‘reasonable efforts’ should apply toICWA’s ‘active efforts. In fact, no pro-vision in ASFA specifically purports tomodify ICWA. It would seem illogicalthat ASFA would implicitly leave un-changed certain ICWA provisions, likenotice to tribes, intervention, and trans-fer to tribal courts, while modifying oth-ers.Second, the rules of statutory construc-tion require that the more specific stat-ute controls. As between the two acts,ICWA is the more specific. ICWAdeals with a discrete segment of ourpopulation, Native American families,who Congress found were best servedby maintaining their relationships withtheir tribes and extended families.

* * *

Third, when interpreting a statute per-taining to Indians, the United StatesSupreme Court has stated, ‘statutes areto be construed liberally in favor of theIndians, with ambiguous provisions in-terpreted to their benefitTTTT’ As Con-gress found when it enacted ICWA, it isto the benefit of Indian children to re-main within their families and only after‘active efforts’ to reunite those familieshave proven unsuccessful should thechildren be removed.’’

Id. at 619 (citations and footnote omitted).The majority relies on the several states

which held that ‘‘the federal ‘active efforts’standard is essentially the same as the‘reasonable efforts’ to ‘preserve or reunifyfamilies’ standard.’’ Maj. Op. at 38 n. 1,976 A.2d at 1042 n. 1. The better viewhowever, supported by a majority of statesthat have considered this issue, and em-braced by the Court of Special Appeals, aswell as by the legislative intent underlyingthe ICWA, is that the ‘‘active efforts’’ stan-dard differs from ‘‘reasonable efforts.’’See Winston J. v. Dept. of Health and Soc.Servs., 134 P.3d 343, 347 n. 18 (Alaska

2006) (finding that the ‘‘active efforts’’ re-quirement is ‘‘more demanding ’’ than the‘‘reasonable efforts’’ requirement); In reInterest of Sabrienia B., 9 Neb.App. 888,621 N.W.2d 836, 842 (2001) (holding that‘‘the ICWA requirement of ‘active efforts’is separate and distinct from the ‘reason-able efforts’ provision’’) (emphasis added).

In Winston J., 134 P.3d at 347 n. 18, theAlaska Supreme Court found that theICWA’s ‘‘active efforts’’ requirement ismore demanding than the ‘‘reasonable ef-forts’’ required by the state statute. Seealso Marina B. v. Alaska, Office of Chil-dren’s Servs., 2009 WL 225711, 2009 Alas.LEXIS 5 (Alaska 2009). The NebraskaCourt of Appeals in Sabrienia B., 621N.W.2d at 842, held that ‘‘the ICWA re-quirement of ‘active efforts’ is separateand distinct from the ‘reasonable efforts’provision TTT and therefore requires theState to plead active efforts by the State toprevent the breakup of the family.’’ (Em-phasis added). The court held that, be-cause the State did not allege in its motionto terminate parental rights that activeefforts had been made to reunify the Indi-an family pursuant to the ICWA, appel-lant’s demurrer to the termination plead-ing should have been granted. Id.

In Iowa, by legislation, the federal stan-dard of ‘‘active efforts’’ has been inter-preted to mean something different than‘reasonable efforts,’ and by statute, ‘‘[r]ea-sonable efforts shall not be construed tobe active efforts.’’ Iowa Code§ 232B.5(19) (2003) (emphasis added).The Iowa Code enumerates the steps thatmust be undertaken to comply with the‘‘active efforts’’ requirement.

The fact that the ‘‘active efforts’’ re-quirement of § 1912(d) is not defined inthe federal act makes it difficult for localdepartments to comply. Active efforts, ata minimum, require that reunification ef-forts be tailored to the family’s status as


an Indian family and must be designed to‘‘prevent the breakup of the Indian fami-ly.’’ § 1912(d). Offers of assistance musttake into account the cultural differencesthat may effect utilization of resources, theavailability of resources specifically tai-lored to Native American needs, and that‘‘it is in the Indian child’s best interest thatits relationship to the tribe be protected.’’Holyfield, 490 U.S. 30, 50 n. 24, 109 S.Ct.1597, 1609 n. 24. As a guide, the Depart-ment may consider the required steps setout in the Iowa Code, which are as follows:

‘‘a. A request to the Indian child’s tribeto convene traditional and customarysupport and resolution actions or ser-vices.b. Identification and participation oftribally designated representatives atthe earliest point.c. Consultation with extended familymembers to identify family structureand family support services that may beprovided by extended family members.d. Frequent visitation in the Indianchild’s home and the homes of the child’sextended family members.e. Exhaustion of all tribally appropri-ate family preservation alternatives.f. Identification and provision of infor-mation to the child’s family concerningcommunity resources that may be ableto offer housing, financial, and transpor-tation assistance and actively assistingthe family in accessing the communityresources.’’

Iowa Code § 232B.5(19).

Reading § 1912(d) to require culturallyappropriate efforts to ‘‘prevent the break-up of the Indian family’’ gives full effect tothe intent of ICWA without underminingthe importance of finding a permanentplacement for Indian children in a timelymanner. This reading comports withguidelines issued for state courts by theBureau of Indian Affairs in the wake of thepassage of the ICWA, which state as fol-lows:

‘‘Any party petitioning a state court forfoster care placement or termination ofparental rights to an Indian child mustdemonstrate to the court that prior tothe commencement of the proceedingactive efforts have been made to allevi-ate the need to remove the Indian childfrom his or her parents or Indian custo-dians. These efforts shall take into ac-count the prevailing social and culturalconditions and way of life of the Indianchild’s tribe. They shall also involve anduse the available resources of the ex-tended family, the tribe, Indian socialservice agencies and individual Indiancare givers.’’

Bureau of Indian Affairs, Guidelines forState Courts; Indian Child Custody Pro-ceedings, 44 Fed.Reg. 67584, 67592 (Nov.26, 1979). The guidelines are nonbindingbut persuasive, and confirm that the plainlanguage of § 1912(d) provides that cultur-ally appropriate ‘‘efforts’’ are required toprevent the breakup of the ‘‘Indian fami-ly.’’ 7

7. The Department argues that any departurefrom the ‘‘reasonable efforts’’ standard wouldrequire ‘‘unreasonable’’ or futile efforts to beexpended. No one suggests that ‘‘active ef-forts’’ requires futile efforts. There will besome circumstances where ‘‘attempts at reu-nification would obviously be futile,’’ and, insuch cases ‘‘the Department need not gothrough the motions in offering servicesdoomed to failure.’’ In re Adoption/Guardian-ship No. 10941, 335 Md. 99, 117, 642 A.2d201, 210 (1994). Even those jurisdictions

that find ‘‘active efforts’’ to be a heightenedstandard compared to ‘‘reasonable efforts’’ donot require efforts that could be deemed fu-tile. See, e.g., E.A. v. State Div. of Family &Youth Servs., 46 P.3d 986, 991 (Alaska 2002)(‘‘[a] parent’s demonstrated lack of willing-ness to participate in treatment may be con-sidered in determining whether the state hastaken active efforts.’’) (alteration in original);People ex rel J.S.B., Jr., 691 N.W.2d 611, 621(S.D.2005) (there is no requirement to ‘‘per-sist with futile efforts’’ where a father’swhereabouts were originally unknown, he


The majority maintains that we need notconsider the Juvenile Court’s factual andlegal findings in its Review and Order ofClosure to assess whether the Departmentmade ‘‘active efforts’’ in compliance withthe ICWA. Rather, the majority posits,this Court should ‘‘examine the substanceof the Department’s and Circuit Court’sactions’’ to determine if ‘‘active efforts’’were made. Maj. Op. at 65, 976 A.2d at1058. I disagree. The ICWA requiresthat a court make express findings thatthe Department has made ‘‘active efforts’’in compliance with § 1912(d) to reunify theIndian family. The Juvenile Court’s fail-ure to do so in the case sub judice requiresthis case to be remanded to that court.

I agree with the view expressed by theCourt of Special Appeals, noting as fol-lows:

‘‘We do not know exactly what additionalservices the Department could have pro-vided. It may have been able to identifyfunds to help pay for the ‘Another Way’methadone treatment, or offer other as-sistance to Ms. B. to deal with her sub-stance abuse problem. Quite possibly,the ‘active efforts’ standard, under thesecircumstances, would require the De-partment to do more than just recom-mend a program. The ‘active efforts’standard may also have required thatthe Department facilitate Ms. B.’s visita-tions with her children, which she saidshe could not make because she ‘washiding’ in her house, possibly due to herpanic disorder, by having a social work-er accompany her when she leaves herhome for the visits.Whether additional steps are requiredwill depend not only on the particularfacts of the case, but on what resourcesthe Department has, a matter not ad-

dressed in this record. The burden ison the Department to demonstrate thata lack of resources prevented it frommaking more active efforts on her be-half. See 25 U.S.C. § 1912(d).’’

Id. at 473, 927 A.2d at 1207–08.Nowhere does the majority refer to the

Juvenile Court’s factual findings concern-ing efforts—reasonable or active—madeby the Department and consider whetherthose findings were clearly erroneous.Rather, the majority cites ‘‘the record inthis case’’ and renders its own finding that‘‘the Department offered numerous ser-vices to both John B. and Wendy B.’’ Maj.Op. at 69, 976 A.2d at 1060. In doing so,the majority substitutes its own judgmentfor that of the trial court on its findings offact.

The majority concludes that we need notconsider whether the Juvenile Court usedthe statutory label ‘‘active efforts’’ in itsReview and Order of Closure, because‘‘[t]he governing principle is that, in apply-ing statutes, other enactments, pleadings,or legal principles, ‘courts must ordinarilylook beyond labels TTT and make determi-nations based on TTT substance.’ ’’ Maj.Op. at 65, 976 A.2d at 1058. This rule ofappellate review has not been applied bythis Court in reviewing child custody pro-ceedings, and the majority misconstruesthe string of cases that purportedly sup-port it. Most of the cases the majoritycites refer solely to construing pleadings.In re Deontay J., 408 Md. 152, 160, 968A.2d 1067, 1071 (2009), Piven v. Comcast,397 Md. 278, 290, 916 A.2d 984, 991 (2007),Alitalia v. Tornillo, 320 Md. 192, 195, 577A.2d 34, 36 (1990), Korzendorfer Realty,Inc. v. Bufalo, 264 Md. 293, 296, 286 A.2d142, 144 (1972), and Lapp v. Stanton, 116Md. 197, 199, 81 A. 675, 676 (1911), only

was later incarcerated, and he refused to par-ticipate fully in the alcohol treatment serviceswhich were offered to him). Requiring thatthe Department’s efforts be tailored to the

cultural context of the Indian family does notrequire the Department to expend futile ef-forts.


apply to a trial court’s consideration of apleading. See Deontay J., 408 Md. at 160,968 A.2d at 1071 (noting ‘‘the well estab-lished principle ‘that the substance ratherthan the form of the pleading is the con-trolling consideration’ ’’); Piven, 397 Md.at 290, 916 A.2d at 991 (‘‘courts must ordi-narily look beyond labels and conclusoryaverments and make determinations basedon the substance of the allegations of apleading); Tornillo, 320 Md. at 195, 577A.2d at 36 (‘‘Ordinarily, ‘magic words’ arenot essential to successful pleading in Ma-ryland’’); Korzendorfer, 264 Md. at 296,286 A.2d at 144 (‘‘The forms of pleadingswhich follow shall be sufficient and the likeforms may be used with such modificationsas may be necessary to meet the facts ofthe case, but nothing herein containedshall render it erroneous or irregular todepart from said forms so long as sub-stance is expressed’’); Lapp, 116 Md. at199, 81 A. at 676 (‘‘[T]he substance, ratherthan the form, of the pleading is the con-trolling consideration’’).

The remaining cases cited by the majori-ty also do not support its theory that thisCourt must look to the substance of theDepartment’s and Circuit Court’s actionsto divine the Circuit Court’s purportedlegal conclusions and provide a basis forreview. See Murrell v. Baltimore, 376Md. 170, 195, 829 A.2d 548, 563 (2003)(considers the ‘‘substance’’ of a cause ofaction in determining the application of thenon-appealability rule of Courts and Judi-cial Proceedings Article, § 12–302(a));Kant v. Montgomery County, 365 Md. 269,274, 778 A.2d 384, 387 (2001) (consideringwhether Md.Code, Courts and JudicialProceedings Article, § 12–302(a) author-izes an appeal from a circuit court’s judg-ment in reviewing the decision of an ad-ministrative agency); Gisriel v. OceanCity Elections Board, 345 Md. 477, 498–500, 693 A.2d 757, 768 (1997) (consideringthe ‘‘substance’’ of a cause of action indetermining the application of the non-

appealability rule of Courts and JudicialProceedings Article, § 12–302(a));Gluckstern v. Sutton, 319 Md. 634, 650–51,574 A.2d 898, 906 (1990) (noting that a‘‘motion to revise the judgment’’ was prop-er even though the motion was not clearlylabeled as such); Matter of Spalding, 273Md. 690, 703, 332 A.2d 246, 253 (1975)(noting that ‘‘labels are not controlling indetermining the applicability of the DueProcess Clause to juvenile proceedings’’).

This Court could not properly reviewthe Juvenile Court’s findings of facts as itrelated to ‘‘active efforts’’ or conclusions oflaw regarding ‘‘active efforts’’ made by theDepartment because the Juvenile Courtdid not make any such findings. As such,as the Court of Special Appeals mandated,this Court should vacate the closure of thiscase. The Circuit Court should evaluatewhether, in light of all the circumstancesand resources reasonably available to theDepartment, the Department made suffi-cient active efforts to facilitate and providetreatment for the B’s.

The majority asserts that appellatecourts applying the ICWA ‘‘generally ex-amine the actual evidence in the case in-stead of requiring trial courts to use thephraseology of the federal statute.’’ Maj.Op. at 66, 976 A.2d at 1058. To the con-trary, the Juvenile Court was required tomake explicit findings that the State made‘‘active efforts’’ and complied with theICWA before closing the CINA case be-fore it. In re Roe, 281 Mich.App. 88, 764N.W.2d 789, 795 (2008).

Section 1912(d) provides that ‘‘[a]ny par-ty seeking to effect a foster care placementof, or termination of parental rights to, anIndian child under State law shall satisfythe court that active efforts have beenmade TTT and that these efforts haveproved unsuccessful.’’ (Emphasis added).The plain language of the ICWA makesclear that the Department bears the bur-


den of proving that ‘‘active efforts’’ havebeen made to prevent the breakup of theB. family and ‘‘that these efforts haveproved unsuccessful.’’ In re Roe, 764N.W.2d at 795. Because the Departmentmust ‘‘satisfy’’ the trial court that the ‘‘ac-tive efforts’’ were made and were unsuc-cessful, ‘‘in order ‘to effect’ the termination[of parental rights], the trial court had tofind specifically that the Department hadmade active efforts and that these effortswere unsuccessful before it could proceedwith the termination of TTT parentalrights.’’ Id. (emphasis added).

The Juvenile Court made no evaluationof the efforts expended in this case underthe ‘‘active efforts’’ analysis set forthabove. The court did not mention ‘‘activeefforts’’ in its ruling from the bench or inits Review and Order of Closure. In itsruling from the bench, the court did notacknowledge the children’s unique statusas Indian children and as members of theTribe in the context of the level or type ofefforts made to reunify the family.

In its Review and Order of Closure, theJuvenile Court merely stated as follows:

‘‘This Court hereby FINDS that Rea-sonable Efforts have been made by theMontgomery County Department ofHealth and Human Services (hereinafterthe ‘‘Department’’) to achieve Reunifi-cation with the Child’s parents as list-ed on page 2 of the Department’s reportdated July 12th, 2006 (copy attached).’’

The Juvenile Court failed to evaluate theefforts made by the Department under theappropriate legal standard contained in§ 1912(d), that of ‘‘active efforts TTT toprevent the breakup of the Indian family.’’I would hold that the court erred as amatter of law by failing to apply the appro-priate standard.

The CINA closure was premised uponan incorrect standard of law. The Depart-ment must provide services tailored to thefamily’s status as an ‘‘Indian family’’ in

order to satisfy the ‘‘active efforts’’ re-quirement of ICWA, and to state that ac-tive efforts have been made to prevent thebreak up of the Indian family.

Accordingly, I would affirm the judg-ment of the Court of Special Appeals re-versing the trial court and remand thecase back to the Juvenile Court to applythe proper legal standard in decidingwhether the Department expended activeefforts to keep the Indian family together.

Chief Judge BELL has authorized me tostate that he joins in the views expressedin this dissenting opinion.

,

410 Md. 91

Cecil Laroy ROBINSON

v.

STATE of Maryland.

No. 109, Sept. Term, 2008.

Court of Appeals of Maryland.

July 28, 2009.

Background: Defendant was convicted ina jury trial in the Circuit Court, CarolineCounty, Karen A. Murphy Jensen, J., ofattempted robbery and related offenses.Defendant appealed. The Court of Appealsgranted certiorari before consideration bythe Court of Special Appeals.

Holding: The Court of Appeals, Barbera,J., held that defendant failed to preserveon appeal his claim that trial court violatedhis right to a public trial by excluding hisfamily and certain other persons from tri-al.

Affirmed.

IN RE NICOLE B. Md. 1039

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