In Re Nicole B.

Opinion by ADKINS, J. For the first time in a reported opinion in Maryland, we are called upon to interpret and apply the requirement in the Federal Indian Child Welfare Act that the Department of Social Services take “active efforts” during CINA proceedings to prevent the breakup of an Indian family. See 25 U.S.C. § 1912 ; Md.Code (1978, 2006 Repl.Vol.), § 3-801 et seq. of the Courts and Judicial Proceedings Article (CJP). John B. and Wendy B., appellants, are the parents of Max B. and Nicole B. After the children were found to be children in need of assistance (CINA), the Circuit Court for Montgomery County held a permanency planning hearing and ordered the plan changed from reunification with appellants, to placement with a paternal aunt for custody and guardianship. The CINA case was then closed.

Appellants now ask us to conclude that the circuit court erred in closing the CINA case and failing to make “active efforts” to prevent the break-up of the family as required by the Federal Indian Child Welfare Act (hereinafter “ICWA”). We agree with appellants’ contention that the court failed to properly address the “active efforts” requirement of the ICWA. Therefore, we vacate and remand for further findings consistent with the requirements of this Act. FACTS AND LEGAL PROCEEDINGS Ms. B. is a Native American and a member of the Yankton Sioux Tribe.

Max, born July 20,1999, is a registered member of the Yankton Sioux Tribe. Nicole, born February 28, 2002, is eligible for membership, but is not currently a registered member of the Tribe. Mr. B. is not of Indian descent. Mr. and Ms. B. are married, and were separated at the time of the permanency hearing. ⁴⁵³ These proceedings began when the children were placed in shelter care by appellee, Montgomery County Department of Health and Human Services (“the Department”), on May 24, 2005, due to parental neglect.

The original CINA petition detailed that: Nicole has not yet been toilet trained; Max’s front teeth are rotten; Max refuses to eat at school; the family does not have a regular meal schedule; Max has asthma; and his mother does not know his treatment protocol. Max and Nicole were found to be CINA by agreement of all parties on June 20, 2005. After the CINA declaration, the children were placed with their paternal aunt, Denise P. The Department’s permanency plan was reunification with the parents. Thus, Mr. B. was ordered to participate in a substance abuse evaluation, submit to semi-weekly urinalysis, participate in regular psychiatric treatment, make efforts to maintain stable housing, and provide child support.

Ms. B. was ordered to submit to a substance abuse evaluation, follow treatment recommendations, and submit to semiweekly urine screens. Mr. and Ms. B. were granted supervised visitation, and Mr. B.’s telephone calls were monitored by the Department. The next review hearing was held on September 15, 2005. The court was informed that Mr. B. had obtained housing, and had been hospitalized to detox from the methadone prescribed to treat his Oxycontin addiction.

Mr. B. was willing to enter an in-patient drug treatment program and undergo mental health treatment, but needed assistance with the cost, as he lost his health insurance coverage. Mr. B. had tested positive for cocaine and marijuana. At the September 15 hearing, the court was also updated on Ms. B., who lacked housing, was unemployed, was not consistently visiting her children, and had not attended the court ordered substance abuse evaluation. Specifically, Ms. B. visited her children four times in three months, and appeared intoxicated during visitation.

The Department indicated that there was no phone number at which Ms. B. could be reached, ⁴⁵⁴ and she appeared to be under the influence of alcohol when at the Department’s offices. At the end of the September 15 hearing, the B.’s were ordered to complete weekly supervised visitation, participate in substance abuse evaluation, twice weekly urinalysis, and secure and maintain stable housing and employment. Mr. B. was also ordered to participate in mental health treatment. In November 2005, the Department gave Mr. B. an application for pharmacy assistance, and discussed mental health treatment with him.

The Department explained to Mr. B. that he needed substance abuse treatment before he could receive a mental health evaluation. In December 2005, there was a review hearing held, and a representative from the Yankton Sioux Indian Tribe came from South Dakota to speak to the circuit court regarding the tribe’s motion to intervene. A permanency planning hearing was held on April 27, 2006. At this hearing, the Yankton Sioux Tribe was granted intervenor status, but its motion to transfer jurisdiction was denied.

The Department and counsel for the children argued that the appellants had made minimal progress. The evidence showed that Mr. B. was unsuccessfully discharged from Avery Road Treatment Center, an inpatient drug treatment center, after three weeks. 1 Mr. B. was then referred to Addiction Services Coordination for an evaluation, which he did not attend. Ms. B. attended and was successfully discharged from the inpatient drug treatment program at Avery Road. Avery Road then referred her to Another Way, an out-patient methadone treatment facility.

She stated that she started this program, but it was costly, and “you have to get a ride there.” Ms. B. testified that she enrolled in an abused persons program, attended AA meetings, and a bible retreat. She also stated that she participated in an Indian Education Program with her children, where they attended class twice each week for ⁴⁵⁵ tutoring, computer education, Indian crafts, and holiday parties. Ms. B.’s testimony also reflected her tense relationship with Ms. P., the children’s aunt and guardian. She said, “when I first had Max, and I lived in the basement, she was suffering from OCDC really bad.

And, she used to come down in the morning and steal Max.” Ms. B. tested positive for benzodiazepine, cocaine, and an opiate on April 14, 2006. Ms. B. testified that she failed to see her children very often because she was “hiding.” She said she was working four to ten hours a day in construction, but had little income because she was “paying off a tab” to a hotel, for Mr. B. She planned to get a government job at Indian Health Services. She was living with Mr. B.’s brother Tommy, in a home where Mr. B. lived on a different floor. 2 Mr. and Ms. B. each had a mix of positive and negative urine tests, and each had missed some of their urinalysis appointments. At this April 27 hearing, Denise P.

(paternal aunt), testified that the children were doing well. She said that Nicole is a “happy little girl,” and that Max is reading on grade level, and has done “very, very well in math.” Ms. P. testified that she does not work outside the home because she suffers from obsessive — compulsive disorder, and receives disability payments. She stated that she takes medication for this disability, which she has been treating for 12 years. Ms. P. also testified that Mr. B. is “a good father to his children.” The Department’s social worker, Karen Crist, testified that the Department changed its permanency plan in November 2005, with the new plan placing custody and guardianship with Ms. P. Christ stated that since November 2005, she gave Mr. B. the application for pharmacy assistance and discussed mental health treatment with him. ⁴⁵⁶ At this April 2006 hearing, Nicole’s therapist, Allison Fellowes-Conly, was accepted as an expert in clinical social work and treatment of abused and neglected children.

She testified that Nicole made “incredible improvement,” as the girl changed from a “very afraid and guarded” child to an individual who trusted her caregivers. She stated that Nicole suffers from post-traumatic stress disorder, and her present symptoms include nightmares, disassoeiation, recurring memories of fights with her parents, and irritability. She summarized, she’s done incredible work, and she’s more of a full child now. She’s smiling.

She’s singing. She’s dancing. Whereas before, she was extremely guarded and restricted. Fellowes-Conly also testified that Max was coming along “very well” in his therapy.

The therapist stated that Ms. P. was great to work with, and used the advice given to her right away. There was also testimony from Mr. B.’s brother, Vincent B., who said that he has noticed a tremendous change in the , children since they were in Ms. P.’s care. At the conclusion of the April 2006 hearing, the court changed the permanency plan from reunification with the parents to custody and guardianship with Ms. P. The court further ordered the parties to secure and maintain stable housing and employment, and participate in substance abuse treatment, twice weekly urinalysis and breathalyzers, parenting education, and psychological and psychiatric evaluations. The court decided to review the matter further in 90 days.

The next review hearing was held on July 21, 2006. Ms. B. was submitting to urine screens, but still had some positive test results showing illicit drug use. She missed nine scheduled urine and breathalyzer tests between May 18, 2006 and July 10, 2006. Her results were positive for benzodiazapine nine times, for opiates three times, and for cocaine once.

On at least one date, Ms. B.’s urine tested positive for alcohol. Also, Ms. B. attended a parenting class two times, but was unable to fully focus during the sessions. Ms. B. produced documentation that she had been attending AA meetings. Ms. B.’s attorney also stated that her client had an emergency ⁴⁵⁷ tooth abscess, and was prescribed Vicodin for pain, which could account for some of the positive urines.

At this July hearing, Mr. B. did not seek custody of the children, but, instead, he supported Ms. B. having custody. The Department stated that Mr. B. did not attend the responsible fathers program. Mr. B. had spoken with the Department prior to the hearing, and stated that he saw many beer cans in the trash at Ms. B.’s residence, that she and his brother Tommy had been crashing and ingesting pills, and that his brother assaulted him. Mr. B. failed to appear for any of the mandatory urine or breathalyzer tests, provided no proof of employment, and had been kicked out of the rental unit he was living in.

In addition, the appellants were not referred for psychological and psychiatric evaluations, because neither party showed six consecutive negative urine screens. The Department had referred the parties to the Axcess program, to address mental health and substance abuse issues, but neither parent had attended. The attorney for Nicole and Max agreed with the Department, and asked the case to be closed, stating that keeping the case open would “make things more unstable for the children.” Also at this July hearing, an attorney for the Yankton Sioux Tribe testified that the Department had not made enough “active efforts”, and was not in compliance with the Federal Indian Child Welfare Act. At the close of the July 2006 permanency hearing, the court maintained the permanency plan of custody and guardianship to Ms. P., and closed the CIÑA case, terminating the court’s jurisdiction, stating: Both children demonstrate symptoms of experiencing trauma from when they were still in their parents’ care.

Neither parent is able to provide them with a consistent, stable and nurturing home environment to meet their needs. They need a sense of permanency[.J The parents appealed, asking us to consider the following question: ⁴⁵⁸ Did the court err in closing the CIÑA case and terminating the court’s jurisdiction where the Department failed to make active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, as required by the Federal Indian Child Welfare Act? DISCUSSION I. Motion To Dismiss The Department argues that Ms. B. failed to file a timely notice of appeal. The parents claim to be appealing jointly, and have filed one appellants’ brief together.

The Department, however, contends that the docket entries show that only Mr. B. filed a timely notice of appeal. The appeal is filed under the names “John, Wendy B.”, and is signed by John B. Ms. B. filed no separate appeal. Although the Department argues that Ms. B. did not file a sufficient notice of appeal, the notice filed indicates the intent of both parties to appeal the circuit court’s decision. The appellants are represented by the same counsel, and are making the same arguments.

Therefore, we will view the notice of appeal as an appeal by both parties, and address its merits.

II

Decision To Terminate Jurisdiction The Indian Child Welfare Act Mr. and Ms. B. argue that the circuit court closed the CINA case in error, by failing to find that the Department made active efforts to prevent the breakup of the Indian family, as required by the ICWA. The pertinent section of the ICWA states: § 1912. Pending court proceedings (a) Notice; time for commencement of proceedings; additional time for preparation In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is ⁴⁵⁹ involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe____of the pending proceedings and of their right of intervention.... No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary!.] $$$$$$ (d) Remedial services and rehabilitative programs; preventive measures Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) Foster care placement orders; evidence; determination of damage to child No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912 (emphasis added). In Maryland, after a child is adjudicated CIÑA, a circuit court maintains jurisdiction until the child reaches twenty-one, unless the court terminates the case sooner. See CJP § 3-804(b). Here, the court terminated jurisdiction by closing the CIÑA case and awarding custody and guardianship to Ms. P., pursuant to CJP section 3-819.2.

We must now determine if the court erred by violating the provisions of the ICWA when terminating jurisdiction. ⁴⁶⁰ The ICWA’s Application To This Case The Department argues that the ICWA does not apply in this instance. We disagree. The statute defines “foster care placement” as: [A]ny action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated. 25 U.S.C. § 1903 (l)(i). Here, Max and Nicole B. have been removed from their parents for placement in a home of a guardian, and Mr. and Ms. B. cannot “have the[ir] child[ren] returned upon demand.” Therefore, the ICWA does apply to this case.

The Department also contends that it met the requirements of the ICWA, because it “neither sought nor obtained a foster care placement for Nicole and Max or a termination of Mr. B.’s and Ms. B.’s parental rights. Instead, the Department sought to place the children under their aunt’s guardianship.” Under the ICWA, an “extended family member” is “defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.” 25 U.S.C. § 1903 (2). We agree that Ms. P. qualifies as an “aunt” under this statutory definition. That does not mean, however, that closure of the CIÑA case was appropriate.

The Department, in making its argument stated above, ignores that a preference for placement with extended family members is not triggered until active efforts have been made to prevent the breakup of the children’s family. 3 ⁴⁶¹ “Active Efforts” Requirement We must determine whether the Department made “active efforts” to reunify the Indian family, under 25 U.S.C. section 1912 (d). The “active efforts” requirement is to be determined by the trial court, before the termination case may proceed. The state is required to make an affirmative showing, “to satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family and that those efforts have proved unsuccessful.” In re H.J., 149 P.3d 1073 , 1078 (Okla.Civ.App.2006) (citation omitted), cert. denied, Nov. 20, 2006. The determination of whether a social services agency has made “active efforts” to prevent family breakup under the ICWA is a mixed question of fact and law.

See E.A v. Alaska Div. of Family and Youth Servs., 46 P.3d 986, 989 (Alaska 2002). In reviewing mixed questions of fact and law in Maryland, this Court will accept “factual findings unless clearly erroneous, but mak[e] its own determination whether the application of the law to that finding was ‘legally correct.’ ” L.W. Wolfe Enters., Inc. v. Md. Nat’l Golf, L.P., 165 Md.App. 339, 348 , 885 A.2d 826 (2005) (citations omitted), cert. denied, 391 Md. 579 , 894 A.2d 546 (2006). Here, the court did not specifically make factual findings regarding the ICWA, but did address the efforts that the Department made to reunify Mr. and Ms. B. with their children. At the final hearing on July 21, 2006, (at the conclusion of which the CIÑA case was closed), the following colloquy occurred: [Attorney for the Yankton Sioux Tribe]: The Indian Child Welfare Act, in Section 25 U.S.C. § 1902 (d), I believe, ⁴⁶² requires the Department to make active efforts.

The Adoption and Safe Families Act, which is another Federal Congressional Act, that does provide funding to states through Title IV(e), funding by the, through the Social Security Act, requires states primarily to make reasonable efforts; and that is what the Department has presented to you in its report regarding its “reasonable efforts.” However, the Indian Child Welfare Act does require active effort. Active efforts are recognized by federal law to be applicable to native families, and active efforts require more than just the reasonable efforts that are alleged in the report by the Department. I do note that on, I believe page 2, of the report, where there is, about halfway down, a section entitled “Reasonable Efforts to Achieve the Permanency Plan,” that the Department is primarily engaged in monitoring of the placement, which is not actually a service to the parents, supervising the visitation between the parents and the children, and primarily providing a referral, referral to other sources, referral to parenting, referral to evaluations, referral to mental health treatment, et cetera. And referral is actually a passive activity, where a department tells parents this is where you can go, they hand them a card, it’s someplace to go to, and says go do it.

You’ve got this much time to get it done. That’s not actually an active effort. We do have a mother here who obviously has some issues that she has been dealing with, and the Tribe does believe that she has demonstrated some progress. It is true, and the Tribe also acknowledges, that Judge Algeo’s finding of being relatively underwhelmed at the last hearing is correct.

However, it does appear that even since that time, that the mother, at least — not to be confused with the father’s situation — has made some additional progress that has been requested and ordered by the court. The Tribe is also very concerned about the mother’s apparent mental health condition. She does have a panic disorder, and this is recognized on page six of the Department’s report. And there’s also some illusion there where there is ⁴⁶³ a — the Department is alluding to a communication it had with the mother, who is saying she is even afraid to leave the house on occasion.

Well when you’re doing a passive effort, go get this help, handing someone a card, for example, and a person has got a panic disorder, is on medication, has apparently some medical issues as well, and is afraid to leave the house, how, really truly, can a native mother get that done? * H* * * * * Tribes typically come fairly late to these kinds of proceedings, just by the nature of how things go. THE COURT: By nature of the fact that usually the parents have absolutely nothing to do with the Tribe, other than the fact that there’s some type of lineal descendant. That’s the reason. It’s not like we have an active member in the Tribe that’s in South Dakota, and is part of the Tribe, and happened to come in here and had a liaison with someone else and had a child.

I mean, that’s the reason the Tribe comes late to these proceedings. These women and fathers — in this particular case, as far as the County would know, would have no idea that they’re part of the Tribe. I mean they’re not active participants in the Tribe. And there’s no indication their lifestyle indicates that she’s part of the Tribe.

I don’t think she goes to tribal meetings, I don’t think she’s involved in any of these tribal celebrations you’re talking about. THE COURT: I had this case before Judge Algeo, and if she’s a very active member of the Tribe, that’s news to me. [Attorney for the Yankton Sioux Tribe]: She’s not required under federal law to— THE COURT: I didn’t say that she was. [Attorney for the Yankton Sioux Tribe]: — be an active member of the Tribe. THE COURT: I’m just indicating that how would we know? I could be a member of, say the Boy Scouts, but if I didn’t tell anybody, no one would know. ⁴⁶⁴ [Attorney for the Yankton Sioux Tribe]: Right.

The Indian Child Welfare Act imposes an affirmative duty on departments of social services of the different states to investigate, and to find out whether or not— THE COURT: Right. THE COURT: Have they