In re Nicole B.

The Indian Child Welfare Act (ICWA) imposed a special burden if the state sought to remove an Indian child from her home: the state was required to satisfy the court that (1) it had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and (2) the efforts were unsuccessful. Wendy B. (defendant) was a member of the Yankton Sioux Tribe of South Dakota (tribe). Wendy had two children, Max B. and Nicole B., who both qualified for ICWA protections. Wendy, Max, and Nicole traveled to Maryland so Wendy could receive healthcare at the Indian Health Service. Child Welfare Services (CWS) (plaintiff) of the Maryland county where Wendy, Max, and Nicole were visiting received a report that Wendy was neglecting Max and Nicole. CWS removed Max and Nicole from Wendy’s custody and placed custody with their aunt, Denise P., who was not a member of the tribe. CWS had the goal of reunifying Max, Nicole, and Wendy. As the months went by, CWS reported to the court that Wendy made no progress towards sobriety or other requirements for reunification. CWS changed the goal to permanent placement with a relative but did not search for a relative who was a member of the tribe. Pursuant to ICWA, the tribe was notified of the litigation, but notice was given late in the litigation. The tribe intervened. CWS filed a report with the trial court containing a list of the reasonable efforts it made to reunite the children with the mother. The reasonable efforts included monitoring the children’s placement in foster families, supervising visitation between the children and the mother, and referrals to other services, such as mental-health-treatment providers. The attorney for the tribe explained that ICWA required CWS to make active efforts to reunify Max, Nicole, and Wendy and informed the court that active efforts were more than reasonable efforts. The attorney argued that CWS had not made active efforts towards reunification. The trial court stated that Wendy was not on the reservation in South Dakota and was not an active member of the tribe. The attorney explained that ICWA did not require Wendy to be an active member, and that Wendy’s ICWA rights followed her wherever she traveled. The attorney expressed that the tribe wished to help the department locate other family members who were members of the tribe or tribe members who could provide foster care for Max and Nicole until reunification could occur, and to undertake discovery to better understand the status of Max and Nicole and the actions of CWS.