# In Re Nicole B.

> Court of Appeals of Maryland · July 28, 2009 · 410 Md. 33

URL: https://www.frixlaw.com/law-library/cases/9710015

## Case

- **Full name:** In Re NICOLE B. and Max B.
- **Court:** Court of Appeals of Maryland
- **Decided:** July 28, 2009
- **Citations:** 410 Md. 33; 976 A.2d 1039; 2009 Md. LEXIS 566
- **Precedential status:** Published
- **Opinion:** Dissent by Raker
- **Judges:** Eldridge, Raker
- **Cited by:** 10 later opinions in the Frix Law Library

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## Opinion text

RAKER, J.
dissenting, joined by BELL, C.J.:
I respectfully dissent. I agree with the well-reasoned opinion of the Court of Special Appeals, Judge Sally Adkins writing for the majority, in which the court held that “the ‘active efforts’ standard [of the ICWA] requires more effort than a ‘reasonable efforts’ standard does [under § 5-525 of the Family Law Article of the Maryland Code].” In re Nicole B., 175 Md.App. 450, 472 , 927 A.2d 1194, 1206 (2007).
I disagree with the majority’s decision to avoid answering the certiorari question 1 in this case, i.e., whether “reasonable efforts” as used in the Federal statute, differ from “active efforts” as used in the Family Law Article. 2 Second, I do not believe it is appropriate for this Court to usurp the role of the trial court and to make first level findings of fact. The trial court used the wrong standard when it concluded that the Department made reasonable efforts to achieve reunification with the children’s parents. Accordingly, I would hold that the ICWA requirement that active efforts have been made to provide remedial services and rehabilitative programs de *73 signed to prevent the breakup of the Indian family have proved unsuccessful is a different standard than that set out in § 5-525 of the Family Law Article of the Maryland Code which requires that reasonable efforts have been made.
Ms. B. is a registered member of the Yankton Sioux Tribe. Max B. is also a registered member of the Tribe and Nicole B. is eligible for membership. Accordingly, pursuant to the ICWA, Max B. and Nicole B. are “Indian children” and the Tribe is entitled to notice and the right of intervention in any involuntary proceeding in a State court regarding foster care placement or termination of parental rights. 25 U.S.C. § § 1908(4), 1911(c), 1912(a) (2006). According to the Department report, the Department “made efforts” to contact the Tribe to inform the Tribe that Max B. had been committed to the Department’s care. At the second permanency plan review hearing in December, a representative of the Tribe moved to intervene in the case pursuant to 25 U.S.C. § 1911 (c), a provision of the ICWA, which allows for intervention by the Indian custodian or Indian tribe at any point in a State court proceeding prior to the foster care placement of, or termination of parental rights to, an Indian child. 25 U.S.C. § 1911 (c). At the hearing, the tribal representative indicated that the Tribe was searching for relatives of Nicole B. and Max B. within the Tribe, but no relatives had yet been found. The Juvenile Court continued the hearing to allow the representative to file the proper pleading to intervene. 3
At the July 21, 2006 permanency plan review hearing, the Department represented that the children should remain in the care of their aunt and that the court should rescind its jurisdiction over the placement and close the case. The attorney for both children agreed with the Department and asked the court to close the case, stating that keeping the case open would “make things more unstable for the children.” The Tribe maintained that the Department had not complied with the ICWA because the Department had not made “active *74 efforts” as required by the Act. The Tribe sought to “be allowed to continue with discovery, to see more of what’s happening in the file, to work with the Department of Social Services to do a relative search for relatives at the reservation, and to discuss with the aunt ways in which she can, and should, and must, under federal law, assist these children in maintaining contact with the Tribe.” The court responded that it did not fault the County for not finding a relative. The court noted that the Tribe has been on notice and that no one has “come forward saying, I am a Tribe relative of this child and I’d like to be part of the child’s life.” The court suggested that referrals by the County to outside parenting programs could be “active efforts” but made no explicit finding that the Department’s actions in this case amounted to “active efforts” to prevent the breakup of the Indian family.
In its “Review and Order of Closure,” the Juvenile Court ruled that “reasonable efforts have been made by the Montgomery County Department of Health and Human Services (hereinafter the “Department”) to achieve Reunification with the parents ...” and ordered the CIÑA case to be closed. (Emphasis added). The court ordered that the children be placed with a relative for custody and guardianship and that the children’s paternal aunt, Denise P., have full care, custody and guardianship of the children. Nowhere in the Order did the court mention the ICWA or “active efforts.”
The ICWA requires that before any party may effect a foster care placement of, or termination of parental rights to, an Indian child under State law, the court must be satisfied that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. Section 5-525 of the Family Law Article of the Maryland Code requires that reasonable efforts shall be made to preserve and reunify families prior to placement of a child in an out-of-home placement. Based upon the plain language of the ICWA, as well as the legislative history of the federal act, I conclude, as did the Court of Special Appeals and a majority of our sister states, that “active efforts” under the ICWA are not the same as “reason *75 able efforts” under § 5-525. Accordingly, because the trial judge did not consider whether the Department engaged in active efforts to prevent the breakup of the Indian family, I would remand this case to the Circuit Court for Montgomery County, sitting as the Juvenile Court, for the court to reconsider the matter under the proper standard.
As noted by the Court of Special Appeals, whether the Department has made “active efforts” under the ICWA is often a mixed question of law and fact. 175 Md.App. at 461 , 927 A.2d at 1200 . The Court of Special Appeals discussed the “active efforts” requirement, noting as follows:
“Definitions of ‘active efforts’ under the federal statute vary by state, and what constitutes ‘active efforts’ is usually fact specific. The majority of courts that have considered the ‘active efforts’ requirement, however, have determined that it sets a higher standard for social services departments than the ‘reasonable 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 Child Welfare Agreement defines the term ‘active efforts’ as ‘thorough, careful, and culturally appropriate efforts’); Winston J. v. Alaska, Dept. of Health and Soc. Servs., Ofc. of Children’s Servs., 134 P.3d 343 , 347 n. 18 (Alaska 2006) (stating that the ICWA’s ‘active efforts’ requirement is more demanding than the ‘reasonable efforts’ required by the state statute); In re Interest of Dakota L., 14 Neb.App. 559 , 712 N.W.2d 583, 594 (2006) (recognizing that the ‘active efforts’ provision in the state’s ICWA is ‘separate and distinct’ from the “reasonable efforts” in the state statute); In re A.N., 325 Mont. 379 , 106 P.3d 556, 560 (2005) (determining that ‘[t]he term active efforts, by definition, implies heightened responsibility compared to passive efforts. Giving the parent a treatment plan and waiting for him to complete it would 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:
*76 “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.”
§ 1912(d). “Reasonable efforts” is contained in § 5-525 of the Family Law Article of the Maryland Code, 4 which reads, in pertinent part, as follows:
“(d)(1) Unless a court orders that reasonable efforts are not required under § 3-812 of the Courts Article or § 5-323 of this title, reasonable efforts shall be made to preserve and reunify families:
(i) prior to the placement of a child in an out-of-home placement, to prevent or eliminate the need for removing the child from the child’s home; and
(ii) to make it possible for a child to safely return to the child’s home.
(2) In determining the reasonable efforts to be made and in making the reasonable efforts described under paragraph (1) of this subsection, the child’s safety and health shall be the primary concern.
(3) Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with the reasonable efforts described under paragraph (1) of this subsection.
(4) If continuation of reasonable efforts to reunify the child with the child’s parents or guardian is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan and to *77 complete the steps to finalize the permanent placement of the child.”
§ 5-525 (emphasis added).
The two statutes differ most strikingly in their description of the “efforts” that must be made towards reunification. The ICWA provides that a party seeking a foster care placement must 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.” § 1912(d) (emphasis added). The Family Law Article provides, however, that the court must make a finding that “reasonable efforts ... be made to preserve and reunify families.” “Active” and “reasonable” are not necessarily synonymous. Black’s Law Dictionary defined reasonable, in pertinent part, as follows: “reasonable, adj. 1. Fair, proper, or moderate under the circumstances creasonable pay>. 2. According to reason....” Black’s Law Dictionary 1272 (7th ed. 1999). In 1997, Webster’s College Dictionary defined active, in pertinent part, as follows:
“active, adj. 1. engaged in action or activity; characterized by energetic work, motion, etc. 2. being in existence, progress or motion: active hostilities. 3. Marked by or disposed to direct involvement in practical action .... 8. capable of exercising influence (opposed to passive): active treason.... ”
Random House Webster’s College Dictionary 13-14 (2d ed. 1997). While something that is “active” might also be “reasonable,” something “reasonable” is not necessarily “active.” The two terms are not equivalent in meaning.
The definitions of “active” and “reasonable,” standing alone, do not fully explain the kinds of efforts the Department must make under § 1912(d)’s “active efforts” standard. The historical context of the federal' “active efforts” requirement and Maryland’s provision for “reasonable efforts” provides insight into the statutes’ use of different terms to describe the level of services a social services agency must provide in an attempt to *78 achieve family reunification before an out-of-home placement is finalized.
The ICWA was passed by Congress in 1978 as the result of a growing concern that state child welfare services were harming Indian children and Indian tribes by removing Indian children from their homes and placing them with non-Indian families unnecessarily and in too great a number. In considering the history of the ICWA, the United States Supreme Court has explained as follows:
“Senate oversight hearings in 1974 yielded numerous examples, statistical data, and expert testimony documenting what one witness called ‘[t]he wholesale removal of Indian children from their homes, ... the most tragic aspect of Indian life today.’ Indian Child Welfare Program, Hearings before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler) (hereinafter 1974 Hearings). Studies undertaken by the Association on American Indian Affairs in 1969 and 1974, and presented in the Senate hearings, showed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions. Id., at 15; see also H.R. Rep. No. 95-1386, p. 9 (1978) (hereinafter House Report), U.S. Code Cong. & Admin. News 1978, pp. 7530, 7531. Adoptive placements counted significantly in this total: in the State of Minnesota, for example, one in eight Indian children under the age of 18 was in an adoptive home, and during the year 1971-1972 nearly one in every four infants under one year of age was placed for adoption. The adoption rate of Indian children was eight times that of non-Indian children. Approximately 90% of the Indian placements were in non-Indian homes. 1974 Hearings, at 75-83. A number of witnesses also testified to the serious adjustment problems encountered by such children during adolescence,[ ] as well as the impact of the adoptions on Indian parents and the tribes themselves. See generally 1974 Hearings.
*79 Further hearings, covering much the same ground, were held during 1977 and 1978 on the bill that became the ICWA.[ ] While much of the testimony again focused on the harm to Indian parents and their children who were involuntarily separated by decisions of local welfare authorities, there was also considerable emphasis on the impact on the tribes themselves of the massive removal of their children. For example, Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians and representative of the National Tribal Chairmen’s Association, testified as follows:
‘Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.’ 1978 Hearings, at 193.
See also id., at 62. Chief Isaac also summarized succinctly what numerous witnesses saw as the principal reason for the high rates of removal of Indian children:
‘One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.’ Id., at 191—192.[ ]
* * #
The ICWA thus, in the words of the House Report accompanying it, ‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe *80 in retaining its children 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, an Indian child should remain in the Indian community,’ ibid., and by making sure that Indian child welfare determinations are not based on ‘a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.’ 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). As a result of the 1977 and 1978 hearings, Congress incorporated the following findings into ICWA:
“(3) [T]hat there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities 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 of 1997 (ASFA), Pub.L. No. 105-89, 111 Stat. 2115 (codified as amended at 42 U.S.C. § 1305 and scattered sections of the Social Security Act), in contrast, was designed to promote and hasten the adoption of children in foster care and to facilitate the removal of children from abusive families. See In re Karl H., 394 Md. 402 , 420 n. *81 15, 906 A.2d 898 , 908 n. 15 (2006). The Maryland General Assembly implemented the provisions of ASFA to comply with federal law 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 at 908 . The “main focus of the act was to accelerate the placement of foster children in adoptive homes.” In re Karl H., 394 Md. at 421 , 906 A.2d at 909 . The provision that “reasonable efforts shall be made to preserve and reunify families” mirrors an identical provision in ASFA. 42 U.S.C. § 671 (a)(15)(B) (2006).
The ICWA and ASFA have different aims—the ICWA is concerned with creating a measured, and, as a result, potentially slower 6 process for separating an Indian child from the family, while ASFA is concerned with expediting the removal process when it proves necessary to achieve a higher level of permanency for children in out-of-home placements through adoption. Although ASFA contains no specific explanation of the interaction between the “reasonable efforts” standard it introduced and the provision for “active efforts” contained in the ICWA, ASFA provides that it “shall not be construed to affect the application of the Indian Child Welfare Act of 1978.” 42 U.S.C.A. § 674 (d)(4) (2009).
In People ex rel. J.S.B., Jr., the South Dakota Supreme Court explained the difference between the ICWA and ASFA, taking into account their different historical underpinnings, as follows:
*82 “ICWA differs from ASFA in its means of promoting Indian children’s best interests. ICWA ensures the best interests of Indian children by maintaining their familial, tribal, and cultural ties. It seeks to prevent capricious severance of those ties, whereas ASFA identifies permanency as a major consideration in promoting the best interests of children. A further distinction between the two acts ... is the requirement in ICWA that state agencies make ‘active’ efforts to provide services aimed at the prevention of a family breakup. ICWA provides no exception to this mandate. On the other hand, in an attempt to assist states in increasing the speed with which children might achieve the desired goal of permanency ... ASFA relieves states from making merely perfunctory remedial efforts in cases where a court has found that the parent has subjected the child to aggravated circumstances of abuse or neglect.”
People ex rel. J.S.B., Jr., 691 N.W.2d 611, 617 (S.D.2005). Noting that ASFA does not trump the ICWA, the South Dakota court continued:
“If it is perhaps open to question whether our Legislature understood the terms ‘reasonable efforts’ and ‘active efforts’ to be interchangeable, we do not think Congress intended that ASFA’s ‘aggravated circumstances’ should undo the State’s burden of providing ‘active efforts’ under ICWA. Three rules of statutory construction dictate otherwise. First,' ICWA clearly offers no exception to its requirement of ‘active efforts.’ And ASFA does not mention ICWA, much less state that its exceptions to ‘reasonable efforts’ should apply to ICWA’s ‘active efforts. In fact, no provision in ASFA specifically purports to modify ICWA. It would seem illogical that ASFA would implicitly leave unchanged certain ICWA provisions, like notice to tribes, intervention, and transfer to tribal courts, while modifying others.
Second, the rules of statutory construction require that the more specific statute controls. As between the two acts, ICWA is the more specific. ICWA deals with a discrete segment of our population, Native American families, who *83 Congress found were best served by maintaining their relationships with their tribes and extended families.
Third, when interpreting a statute pertaining to Indians, the United States Supreme Court has stated, ‘statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit....’ As Congress found when it enacted ICWA, it is to the benefit of Indian children to remain within their families and only after ‘active efforts’ to reunite those families have proven unsuccessful should the children 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 reunify families’ standard.” Maj. Op. at 38-39 n. 1, 976 A.2d at 1042 n. 1. The better view however, supported by a majority of states that have considered this issue, and embraced by the Court of Special Appeals, as well as by the legislative intent underlying the ICWA, is that the “active efforts” standard 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” requirement is “more demanding ” than the “reasonable efforts” requirement); In re Interest 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 ‘reasonable efforts’ provision”) (emphasis added).
In Winston J., 134 P.3d at 347 n. 18, the Alaska Supreme Court found that the ICWA’s “active efforts” requirement is more demanding than the “reasonable efforts” required by the state statute. See also Marina B. v. Alaska, Office of Children’s Servs., 2009 WL 225711 , 2009 Alas. LEXIS 5 (Alaska 2009). The Nebraska Court of Appeals in Sabrienia B., 621 N.W.2d at 842 , held that “the ICWA requirement of ‘active efforts’ is separate and distinct from the ‘reasonable efforts’ provision ... and therefore requires the State to plead active *84 efforts by the State to prevent the breakup of the family.” (Emphasis added). The court held that, because the State did not allege in its motion to terminate parental rights that active efforts had been made to reunify the Indian family pursuant to the ICWA, appellant’s demurrer to the termination pleading should have been granted. • Id.
In Iowa, by legislation, the federal standard of “active efforts” has been interpreted to mean something different than ‘reasonable efforts,’ and by statute, “[rjeasonable efforts shall not be construed to be active efforts.” Iowa Code § 232B.5(19) (2003) (emphasis added). The Iowa Code enumerates the steps that must be undertaken to comply with the “active efforts” requirement.
The fact that the “active efforts” requirement of § 1912(d) is not defined in the federal act makes it difficult for local departments to comply. Active efforts, at a minimum, require that reunification efforts be tailored to the family’s status as an Indian family and must be designed to “prevent the breakup of the Indian family.” § 1912(d). Offers of assistance must take into account the cultural differences that may effect utilization of resources, the availability of resources specifically tailored to Native American needs, and that “it is in the Indian child’s best interest that its 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 Department may consider the required steps set out in the Iowa Code, which are as follows:
“a. A request to the Indian child’s tribe to convene traditional and customary support and resolution actions or services.
b. Identification and participation of tribally designated representatives at the earliest point.
c. Consultation with extended family members to identify family structure and family support services that may be provided by extended family members.
d. Frequent visitation in the Indian child’s home and the homes of the child’s extended family members.
*85 e. Exhaustion of all tribally appropriate family preservation alternatives.
f. Identification and provision of information to the child’s family concerning community resources that may be able to offer housing, financial, and transportation assistance and actively assisting the family in accessing the community resources.”
Iowa Code § 232B.5(19).
Reading § 1912(d) to require culturally appropriate efforts to “prevent the breakup of the Indian family” gives full effect to the intent of ICWA without undermining the importance of finding a permanent placement for Indian children in a timely manner. This reading comports with guidelines issued ,for state courts by the Bureau of Indian Affairs in the wake of the passage of the ICWA, which state as follows:
“Any party petitioning a state court for foster care placement or termination of parental rights to an Indian child must demonstrate to the court that prior to the commencement of the proceeding active efforts have been made to alleviate the need to remove the Indian child from his or her parents or Indian custodians. These efforts shall take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe. They shall also involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers.”
Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67592 (Nov. 26, 1979). The guidelines are nonbinding but persuasive, and confirm that the plain language of § 1912(d) provides that culturally appropriate “efforts” are required to prevent the breakup of the “Indian family.” 7
*86 The majority maintains that we need not consider the Juvenile Court’s factual and legal findings in its Review and Order of Closure to assess whether the Department made “active efforts” in compliance with the ICWA. Rather, the majority posits, this Court should “examine the substance of the Department’s and Circuit Court’s actions” to determine if “active efforts” were made. Maj. Op. at 66-67, 976 A.2d at 1058. I disagree. The ICWA requires that a court make express findings that the Department has made “active efforts” in compliance with § 1912(d) to reunify the Indian family. The Juvenile Court’s failure to do so in the case sub judice requires this case to be remanded to that court.
I agree with the view expressed by the Court of Special Appeals, noting as follows:
“We do not know exactly what additional services the Department could have provided. It may have been able to identify funds to help pay for the ‘Another Way’ methadone treatment, or offer other assistance to Ms. B. to deal with her substance abuse problem. Quite possibly, the ‘active efforts’ standard, under these circumstances, would require the Department to do more than just recommend a program. The ‘active efforts’ standard may also have required that the Department facilitate Ms. B.’s visitations with her children, which she said she could not make because she ‘was hiding’ in her house, possibly due to her panic disorder, *87 by having a social worker accompany her when she leaves her home for the visits.
Whether additional steps are required will depend not only on the particular facts of the case, but on what resources the Department has, a matter not addressed in this record. The burden is on the Department to demonstrate that a lack of resources prevented it from making more active efforts on her behalf. 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 concerning efforts—reasonable or active— made by the Department and consider whether those findings were clearly erroneous. Rather, the majority cites “the record in this case” and renders its own findiiig that “the Department offered numerous services to both John B. and Wendy B.” Maj. Op. at 69-70, 976 A.2d at 1060. In doing so, the majority substitutes its own judgment for that of the trial court on its findings of fact.
The majority concludes that we need not consider whether the Juvenile Court used the statutory label “active efforts” in its Review and Order of Closure, because “[t]he governing principle is that, in applying statutes, other enactments, pleadings, or legal principles, ‘courts must ordinarily look beyond labels ... and make determinations based on ... substance.’ ” Maj. Op. at 65-66, 976 A.2d at 1058. This rule of appellate review has not been applied by this Court in reviewing child custody proceedings, and the majority misconstrues the string of cases that purportedly support it. Most of the cases the majority cites refer solely to construing pleadings. In re Deontay J., 408 Md. 152, 160 , 968 A.2d 1067, 1071 (2009), Piven v. Comcast, 397 Md. 278, 290 , 916 A.2d 984, 991 (2007), Alitalia v. Tornillo, 320 Md. 192, 195 , 577 A.2d 34, 36 (1990), Korzendorfer Realty, Inc. v. Bufalo, 264 Md. 293, 296 , 286 A.2d 142, 144 (1972), and Lapp v. Stanton, 116 Md. 197, 199 , 81 A. 675, 676 (1911), only apply to a trial court’s consideration of a pleading. See Deontay J., 408 Md. at 160 , 968 A.2d at 1071 (noting “the well established principle ‘that the sub *88 stance rather than the form of the pleading is the controlling consideration’ ”); Piven, 397 Md. at 290 , 916 A.2d at 991 (“courts must ordinarily look beyond labels and conclusory averments and make determinations based on the substance of the allegations of a pleading); Tornillo, 320 Md. at 195 , 577 A.2d at 36 (“Ordinarily, ‘magic words’ are not essential to successful pleading in Maryland”); Korzendorfer, 264 Md. at 296 , 286 A.2d at 144 (“The forms of pleadings which follow shall be sufficient and the like forms may be used with such modifications as may be necessary to meet the facts of the case, but nothing herein contained shall render it emoneous or irregular to depart from said forms so long as substance is expressed”); Lapp, 116 Md. at 199 , 81 A. at 676 (“[T]he substance, rather than the form, of the pleading is the controlling consideration”).
The remaining cases cited by the majority also do not support its theory that this Court must look to the substance of the Department’s and Circuit Court’s actions to divine the Circuit Court’s purported legal conclusions and provide a basis for review. See Murrell v. Baltimore, 376 Md. 170, 195 , 829 A.2d 548, 563 (2003) (considers the “substance” of a cause of action in determining the application of the non-appealability rule of Courts and Judicial Proceedings Article, § 12-302(a)); Kant v. Montgomery County, 365 Md. 269, 274 , 778 A.2d 384, 387 (2001) (considering whether Md.Code, Courts and Judicial Proceedings Article, § 12-302(a) authorizes an appeal from a circuit court’s judgment in reviewing the decision of an administrative agency); Gisriel v. Ocean City Elections Board, 345 Md. 477, 498-500 , 693 A.2d 757, 768 (1997). (considering the “substance” of a cause of action in determining the application of the non-appealability rule of Courts and Judicial Proceedings 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 proper even though the motion was not clearly labeled as such); Matter of Spalding, 273 Md. 690, 703 , 332 A.2d 246, 253 (1975) (noting that “labels are not controlling in determining the applicability of the Due Process Clause to juvenile proceedings”).
*89 This Court could not properly review the Juvenile Court’s findings of facts as it related to “active efforts” or conclusions of law regarding “active efforts” made by the Department because the Juvenile Court did not make any such findings. As such, as the Court of Special Appeals mandated, this Court should vacate the closure of this case. The Circuit Court should evaluate whether, in light of all the circumstances and resources reasonably available to the Department, the Department made sufficient active efforts to facilitate and provide treatment for the B’s.
The majority asserts that appellate courts applying the ICWA “generally examine the actual evidence in the case instead of requiring trial courts to use the phraseology of the federal statute.” Maj. Op. at 66-67, 976 A.2d at 1058. To the contrary, the Juvenile Court was required to make explicit findings that the State made “active efforts” and complied with the ICWA before closing the CIÑA case before it. In re Roe, 281 Mich.App. 88 , 764 N.W.2d 789, 795 (2008).
Section 1912(d) provides that “[a]ny 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 ... and that these efforts have proved unsuccessful.” (Emphasis added). The plain language of the ICWA makes clear that the Department bears the burden of proving that “active efforts” have been made to prevent the breakup of the B. family and “that these efforts have proved unsuccessful.” In re Roe, 764 N.W.2d at 795 . Because the Department must “satisfy” the trial court that the “active efforts” were made and were unsuccessful, “in order ‘to effect’ the termination [of parental rights], the trial court had to find specifically that the Department had made active efforts and that these efforts were unsuccessful before it could proceed with the termination of ... parental rights.” Id. (emphasis added).
The Juvenile Court made no evaluation of the efforts expended in this case under the “active efforts” analysis set forth above. The court did not mention “active efforts” in its *90 ruling from the bench or in its Review and Order of Closure. In its ruling from the bench, the court did not acknowledge the children’s unique status as Indian children and as members of the Tribe in the context of the level or type of efforts made to reunify the family.
In its Review and Order of Closure, the Juvenile Court merely stated as follows:
“This Court hereby FINDS that Reasonable Efforts have been made by the Montgomery County Department of Health and Human Services (hereinafter the “Department”) to achieve Reunification with the Child’s parents as listed on page 2 of the Department’s report dated July 12th, 2006 (copy attached).”
The Juvenile Court failed to evaluate the efforts made by the Department under the appropriate legal standard contained in § 1912(d), that of “active efforts ... to prevent the breakup of the Indian family.” I would hold that the court erred as a matter of law by failing to apply the appropriate standard.
The CINA closure was premised upon an incorrect standard of law. The Department must provide services tailored to the family’s status as an “Indian family” in order to satisfy the “active efforts” requirement of ICWA, and to state that active efforts have been made to prevent the break up of the Indian family.
Accordingly, I would affirm the judgment of the Court of Special Appeals reversing the trial court and remand the case back to the Juvenile Court to apply the proper legal standard in deciding whether the Department expended active efforts to keep the Indian family together.
Chief Judge BELL has authorized me to state that he joins in the views expressed in this dissenting opinion.
. The certiorari question reads as follows:
"Are 'active efforts’ to prevent the breakup of an Indian family under ICWA equivalent to ‘reasonable efforts' to preserve and reunify families under federal and Maryland law, so that further, futile reunification efforts are unnecessary when foster placement is in a Native American child’s proven best interest?”
In re Nicole B., 402 Md. 36 , 935 A.2d 406 (2007).
. Did this Court really take this case to make the factual determination that the Department of Social Services actually made "active efforts” to reunite this family?
. The Juvenile Court granted the Tribe’s motion at the April permanency plan hearing.
. The subsection was amended in 2001 to reflect a change in numbering of current § 5-323 of the Family Law Article. 2001 Md. Laws, ch. 415, § 6. Recent amendments that took effect on October 1, 2008, provide for consideration of out-of-state placement in addition to instate placement and do not otherwise effect the substance of the "reasonable efforts” standard. 2008 Md. Laws, ch. 16.
. The Federal government, under ASFA, provided up to $6,000 per child to assist in increasing the number of adoptions of children placed out of the home. 42 USCA § 673b(d)(l)(A)-(B) (2003); William Wesley Patton and Amy M. Pellman, The Reality of Concurrent Planning: Juggling Multiple Family Plans Expeditiously Without Sufficient Resources, 9 U.C. Davis J. Juv. L. & Pol'y 171, 175 (2005).
. The ICWA allows for a transfer of jurisdiction to tribal court, notification to the Indian tribe and an additional 20 days to prepare upon request by the tribe, and withdrawal of the parents' consent to voluntary placement or adoption, among other measures. See 25 U.S.C. §§ 1911 (b), 1912(a), 1913(b)-(d) (2006). These special protections can cause the process of foster care placement or termination of parental rights to take longer than cases in which the ICWA does not apply.
. The Department argues that any departure from the "reasonable efforts" standard would require "unreasonable" or futile efforts to be expended. No one suggests that “active efforts” requires futile efforts. There will be some circumstances where “attempts at reunification would obviously be futile,” and, in such cases “the Department need *86 not go through the motions in offering services doomed to failure.” In re Adoption/Guardianship No. 10941, 335 Md. 99, 117 , 642 A.2d 201, 210 (1994). Even those jurisdictions that find "active efforts” to be a heightened standard compared to "reasonable efforts” do not require efforts that could be deemed futile. 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 willingness to participate in treatment may be considered in determining whether the state has taken 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 "persist with futile efforts” where a father's whereabouts were originally unknown, he was later incarcerated, and he refused to participate fully in the alcohol treatment services which were offered to him). Requiring that the Department's efforts be tailored to the cultural context of the Indian family does not require the Department to expend futile efforts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710015. Public record. Not legal advice.