In Re Dependency of ZFS

51 P.3d 170
CourtCourt of Appeals of Washington
DecidedAugust 5, 2002
Docket49606-9-I
StatusPublished

This text of 51 P.3d 170 (In Re Dependency of ZFS) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Dependency of ZFS, 51 P.3d 170 (Wash. Ct. App. 2002).

Opinion

51 P.3d 170 (2002)

In re the DEPENDENCY OF Z.F.S.,
Charge D'affaires, Legal Guardian for the Mother, Tonya St. Clair, Appellant,
v.
State of Washington, Respondent.

No. 49606-9-I.

Court of Appeals of Washington, Division 1.

August 5, 2002.

Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Appellant.

Teresa Bowles Otsuba, Attorney Generals Office, Everett, WA, Kirsten Hauagen, Everett, WA, for Respondent.

Martha Keefe, Guardian Ad Litem.

COLEMAN, J.

In this dependency action, Tonya St. Clair appeals the juvenile court's decision to place her 14-month-old child with her extended relatives in Alaska. Tonya argues that the juvenile court violated Section 1915(b) of the Indian Child Welfare Act ("ICWA") and *171 RCW 13.34.125 by ruling on placement without further exploring through a home study placement with her cousin who resides in Washington. Because the juvenile court had a tenable basis to rule out the cousin as a placement option and to determine the Alaska placement was in the child's best interest, the court did not violate the ICWA. And because Tonya failed to propose or indicate her intent to propose a voluntary adoption plan or agree to relinquish her parental rights, RCW 13.34.125 was never triggered. We thus affirm.

FACTS

ZS was born August 7, 2000. He and his mother, Tonya St. Clair, are members of the Hoonah Village of the Tlingit Indian Tribe. Tonya has been declared an incapacitated person and "Charge d'affaires" was appointed her legal guardian in March 2000. The record indicates she operates on the level of a 7- or 8-year-old and the parties agree that she will never be able to care for ZS herself.

A dependency petition was filed on August 9, 2000, alleging Tonya was an incapacitated person. Shortly afterwards, the Department of Social and Health Services ("DSHS") and the mother's guardian looked for permanent placement for ZS. Julie St. Clair, Tonya's mother, initially sought placement of ZS. But she was quickly ruled out because she tested positive for methamphetamines the day of the initial shelter care hearing and there was evidence that she may have been involved in criminal drug activity. As a consequence, ZS was placed in local foster care with nonrelatives who were not Native American.

The Hoonah Indian Association ("Association") filed a notice of intervention on November 15, 2000. During the fall of 2000, DSHS and the Association began exploring placing ZS with Tonya's relatives who live in Alaska. Tonya's guardian had hoped that both Tonya and ZS could live with these relatives together.

An agreed order of dependency was entered on March 27, 2001. Around that time, Tonya's Alaska relatives withdrew their application to provide foster care for ZS. Thereafter, steps were taken to explore other relative placement options. By the summer of 2001, the Association had located and was pursuing placement with Mr. and Mrs. Eric Williams, different relatives of Tonya's who live in Hoonah, Alaska and who are members of the Hoonah Village of the Tlingit tribe.

On July 11, 2001, the juvenile court entered a permanency planning order, providing for a concurrent plan of adoption and dependency guardianship. The record indicates that the Association originally supported both these options, but by late summer, it had ruled out a guardianship and was advocating for termination. By July 31, 2001, the Association had completed a home study of the Williamses and was recommending that they adopt ZS.

On October 3, 2001, DSHS filed a motion to have ZS placed with the Williamses, supported by the declaration of ZS's caseworker. In the declaration, the caseworker indicated that Julie St. Clair had contacted DSHS in late August 2001 to report that Donya Owens, a cousin of Tonya's who lives in Washington, "would like to raise [ZS]." The caseworker stated that she conferred with the Association's tribal social worker about Owens. According to the caseworker, the tribe does not recommend placement of ZS with Julie's relatives, because then Julie would have access to the child. [The tribe] stated that "the tribe does now [sic] want Julie to have access to the child. Because the tribe did not want the local relative placement resource option explored, I did not explore that option."

On October 9, 2001, Tonya filed an opposition to DSHS's motion, arguing that placement in Alaska would be detrimental to both mother and child because it would sever all contact between the two. Tonya requested placement with "Danya Owens," asserting that Owens is a Native American and an appropriate caregiver. Alternatively, she requested that the court order DSHS to complete a home study of Owens. Donya Owens submitted a declaration in support of Tonya's request stating, "When I found out that [ZS] was going to have to move up to Alaska without Tonya, it just didn't seem right so I found out what I could do to keep them together." Owens also stated that she is an *172 "Alaskan native," that her father was Julie St. Clair's brother, and that she would obey any court-ordered limits on contact between Julie St. Clair and ZS.

A hearing on DSHS's motion was held on October 10, 2001. There, DSHS questioned Owens' tribal affiliation and reiterated concerns over her relationship with Julie St. Clair. It also expressed doubts over Owens' suitability for placement. The tribal representative concurred with DSHS's request that ZS be placed with the Williamses.

Tonya's attorney requested that the court permit Julie St. Clare and Donya Owens to attend the hearing. The court denied the request with regard to Julie but inquired whether Owens had anything to say to the court about placement. The attorney responded, "I've not planned on calling her as a witness," then reiterated that DSHS should complete a home study of Owens before the court ruled on placement. At one point the attorney suggested that Tonya would be willing to relinquish her parental rights if it was determined that Owens was a suitable placement for ZS and stated that this would be best for ZS because it would avoid a termination trial.

At the close of the hearing, the juvenile court ordered placement with the Williamses in Hoonah, "as a permanent adoptive placement," indicating this was in ZS's best interest and consistent with the ICWA.

ANALYSIS

"A placement decision in a dependency proceeding is discretionary and will be overturned on appeal only upon a showing of an abuse of discretion." In re Dependency of A.C., 74 Wash.App. 271, 275, 873 P.2d 535 (1994). In determining placement, the best interests of the child are the court's paramount concern. In the Matter of the Dependency of J.B.S., 123 Wash.2d 1, 10, 863 P.2d 1344 (1993). The criteria for establishing the best interests of the child are not capable of exact specification because each case is largely dependent upon its own facts and circumstances. In re Aschauer, 93 Wash.2d 689, 695, 611 P.2d 1245 (1980).

Tonya first argues that the juvenile court violated the ICWA by placing ZS in Alaska.

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Related

In Re the Welfare of Aschauer
611 P.2d 1245 (Washington Supreme Court, 1980)
Scott v. Department of Social & Health Services
863 P.2d 1344 (Washington Supreme Court, 1993)
Craven v. Department of Social & Health Services
873 P.2d 535 (Court of Appeals of Washington, 1994)
Frederickson v. Becker
553 P.2d 1339 (Washington Supreme Court, 1976)
In Re Adoption of Crews
825 P.2d 305 (Washington Supreme Court, 1992)
In Re Dependency of JS
46 P.3d 273 (Court of Appeals of Washington, 2002)
In re the Dependency of J.S.
111 Wash. App. 796 (Court of Appeals of Washington, 2002)

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51 P.3d 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dependency-of-zfs-washctapp-2002.