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Lack of ‘effort’ cited in Indian custody case
ANNAPOLIS — In the first court opinion of its kind in Maryland, the state Court of Special Appeals ruled yesterday that a local court failed to properly address requirements of the federal Indian Child Welfare Act in a child custody case.
The case is unique in Maryland law because it is the first reported opinion to interpret and apply a federal requirement that “active efforts” be made to prevent the breakup of an American Indian family during proceedings for children in need of assistance.
The case stems from a Montgomery County Circuit Court ruling that changed a custody arrangement for two American Indian children, a decision that put the children in the custody of a paternal aunt instead of their parents.
Child welfare is a state function, and the Maryland attorney general’s office represented the state in the case. Norris West, a spokesman for the Maryland Department of Human Resources, said the attorney general’s office is reviewing the case and couldn’t comment in detail.
The case involves a 7-year-old boy who is a member of the Yankton Sioux Tribe in South Dakota and a 5-year-old girl who is eligible to be a member of the tribe but isn’t registered. Their mother, identified in court filings as Ms. B, is a tribal member. Their father, Mr. B, is not of Indian descent.
The Montgomery County Department of Health and Human Services put the children in a shelter in May 2005 because of findings of parental neglect and accusations of drug use by the parents. After it was determined in June 2005 that the children were in need of assistance, they were sent to live with their aunt.
A representative from the Yankton tribe came from South Dakota in December 2005 to express the tribe’s interest in intervening. The tribe was granted intervenor status at an April 2006 hearing. However, the tribe’s motion to transfer jurisdiction was denied because the department and attorneys for the children argued the parents had made minimal progress.
A therapist testified that the children had improved while in the aunt’s care and the court changed the custody arrangement, putting them in the care of their aunt until a review of the matter in 90 days.
After the parents had problems with drug testing — either by failing tests or not showing up to take them — the circuit court ruled at a July 2006 hearing that the aunt receive custody and guardianship of the children.
The parents appealed, arguing the department had not done enough to provide services to prevent the breakup of the family — as required by the federal Indian Child Welfare Act. The act was created in 1978 to re-establish tribal authority over the adoption of American Indian children with the goal of strengthening American Indian families and culture.
While the department argued that the act doesn’t apply in this case, the Court of Special Appeals disagreed, noting that the department’s plan was changed from reunification with the parents to custody with another relative after only six months of department intervention. The court also pointed out that the parents couldn’t afford to attend the programs recommended by the department.
By David Keene
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