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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Dependency of: No. 82799-5-I
A.W., ORDER GRANTING MOTION FOR RECONSIDERATION, A Minor Child. WITHDRAWING OPINION, AND SUBSTITUTING OPINION
The respondent, Department of Children, Youth, and Families, has filed a
motion for reconsideration of the opinion filed on August 8, 2022. The appellant,
A.K., has filed a response. The court has determined that the motion should be
granted, the opinion withdrawn, and a substitute opinion filed; now, therefore, it is
hereby
ORDERED that the motion for reconsideration is granted; and it is further
ORDERED that the opinion filed on August 8, 2022 is withdrawn; and it is
further
ORDERED that a substitute opinion shall be filed and published in the
Washington Appellate Reports. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
A.W., DIVISION ONE
A Minor Child. PUBLISHED OPINION
ANDRUS, C.J. — Shortly after A.K. gave birth to A.W., the Department of
Children, Youth, and Families (Department) filed a dependency petition and sought
an ex parte order allowing the Department to take A.W. into custody (“pick-up
order”) based on the mother’s drug use during pregnancy and evidence of an
inability to care for the infant. The mother’s attorney contacted the court,
requesting a hearing before the court signed the pick-up order. The trial court
denied that request and signed the order without first holding a hearing.
At the subsequent shelter care hearing, the trial court denied the mother’s
motion to vacate the pick-up order but nonetheless found that shelter care was no
longer necessary because of the steps she had taken to obtain drug treatment and
parenting support, and it returned the child to A.K. The court subsequently
dismissed the dependency proceeding. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82799-5-I/2
A.K. sought discretionary review of the order denying her motion to vacate,
arguing that the trial court violated due process by issuing a pick-up order without
first affording her a hearing and that the court violated both the Indian Child Welfare
Act of 1978 1 (ICWA) and the Washington State Indian Child Welfare Act 2 (WICWA)
in granting the pick-up order. This court granted discretionary review.
We conclude that entering a pick-up order without first holding a hearing did
not violate A.K.’s due process rights. We also conclude that when the Department
has reason to believe that a child is an Indian child under ICWA and WICWA, the
heightened removal standard in those statutes applies to ex parte pick-up order
requests. Because the Department had reason to know that A.W. is an Indian
child—information not shared with the trial court—and the trial court applied an
incorrect legal standard in assessing the Department’s evidence at that stage of
the proceeding, the trial court erred in not vacating the pick-up order. 3
FACTS
A.K. gave birth to A.W. on April 19, 2021. 4 A.K. had a long history of
struggling with heroin addiction and reported using the drug intermittently,
including throughout her pregnancy. 5 Because she did not realize she was
pregnant until the month before she gave birth, the mother received very little
prenatal care. On March 25, 2021, three weeks before A.W.’s birth, the mother
1 25 U.S.C. §§ 1901-1963. 2 Ch. 13.38 RCW. 3 While we reverse the pick-up order, we need not remand this matter to the trial court to vacate
the order because the dependency petition has already been dismissed. 4 The father, D.W., is not a party to this appeal. 5 The facts in this opinion are based in large part on allegations and statements from the
dependency petition and the mother’s shelter care hearing brief. As both parties refer to the allegations in the petition, which were certified by social worker Amber Grey to be true and correct, these appear to be undisputed facts.
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started a methadone program with Therapeutic Health Services (THS). When
A.W. was born, both mother and infant tested positive for methadone and A.W.
exhibited signs of withdrawal, including tremors and poor skin tone, and was not
eating well. The hospital began providing therapeutic morphine treatment. It also
notified the Department, and social worker Amber Grey opened a Child Protective
Services investigation.
The mother visited A.W. in the hospital regularly. Hospital staff initially
noted that she provided loving and appropriate care for A.W. but later reported
concerns that A.K. was “apathetic” when the baby cried. According to hospital
staff, she was often distracted by her phone, failed to engage with parent
educators, and allowed others to care for A.W. The hospital also reported that the
mother was sleeping often and failing to wake when A.W. cried. They described
the mother as a “poor historian” as she could not determine when she had last
used drugs and had no long-term housing plan. A.K. reportedly told a hospital
social worker that she “want[ed] to do methadone on her own, and was unwilling
to engage in any other services typically associated with sobriety, such as support
groups.”
According to Grey, the mother could not tell her when she discovered she
was pregnant or when she started methadone treatment. A.K. informed Grey that
she had yet to engage with a THS counselor or to participate in any of its support
groups.
At the time of A.W.’s birth, the mother was living with her friend, Jordan
Ford-Nyce and Ford-Nyce’s great uncle, Gary Ford, in a house in Snohomish. As
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part of her investigation, Grey reached out to both Ford-Nyce and Ford to better
understand A.K.’s support system and living situation. Both were supportive of
A.K.’s efforts to obtain sobriety and were willing to have her and A.W. stay in their
home. While Ford-Nyce worked part time in Portland, Oregon, and would be gone
for several days each week, Ford could be home consistently and offered to teach
A.K. parenting skills, such as changing the baby and making bottles. Grey felt their
home was clean and well kept, and appeared to be safe.
On April 22, the Department held a family team decision meeting with A.K.
At the meeting, A.K. agreed to participate in random urinalysis testing (UA), and to
engage in services, including an in-home parenting class. She further agreed to
follow Safe Sleep guidelines and have either Ford or Ford-Nyce present for late
night feedings. Should she relapse, A.K. agreed to notify the Department and
ensure that A.W. was in the care of a safe and sober adult. Ford-Nyce, who also
attended the meeting, agreed that either she or Ford would check in with A.K. once
a day and report any concerns to the Department.
Following the meeting, Grey began making necessary referrals for these
services. She referred A.K. to an in-home parenting class and UA testing. Grey
notified A.K. of the UA referral by text message. A.K. never responded to it and
did not complete the UA. She claimed she had not seen the text until three days
after Grey sent it. On April 26, A.K. completed a UA at THS. While the UA was
negative, it was not “observed” as the Department required.
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On April 28, Grey learned that A.K. had not appeared for a scheduled in-
person meeting with her THS counselor. Grey also learned that the hospital
planned to discharge A.W. the following Monday, May 3.
On April 29, the Department held a second family team decision meeting.
At the meeting, Grey shared some of the Department’s concerns and A.K. offered
explanations for her behaviors. For example, A.K. explained that she missed her
meeting with the counselor because she “pee[d] her pants” in the car and had to
go home to change, and she said she allowed others to care for A.W. at the
hospital because the hospital staff had told her to rest. The Department
nevertheless informed A.K. that it intended to file a dependency petition and a
motion to take A.W. into custody. A.K. asked that Ford-Nyce be allowed to act as
A.W.’s caregiver in the event that A.K. was not permitted to do so.
The next morning, on Friday April 30, A.K.’s attorney e-mailed the
Department, asking for a third family team decision meeting and requesting that
she be notified of any ex parte requests with the court, including any pick-up order
requests. Later that morning, the Department responded and informed counsel
that it had filed the petition.
In the petition, the Department represented to the court that, among other
things, it did not have reason to know A.W. was an “Indian child” under ICWA and
WICWA. According to the petition, A.K. denied having any Native ancestry, and
Grey was unable to contact A.W.’s father to ask about his ancestry because he
was in jail in Oregon.
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The Department also filed an ex parte motion for an order to take the child
into custody with the dependency petition. When A.K.’s counsel learned about the
motion, she e-mailed the court and requested “a hearing on the record prior to any
ex parte order being signed.” The trial court reviewed this request and the petition
and elected to sign the pick-up order without a hearing. The court found that the
Department had demonstrated “a risk of imminent harm to the child in the child’s
home,” that the Department’s risk assessment constituted “reasonable efforts to
prevent or eliminate the need for removal of the child from the child’s home,” and
that “services previously offered or provided to the parent(s) have not remedied
the unsafe conditions in the home.” The order allowed the Department to take
A.W. into custody and place her in shelter care for not more than 72 hours.
When the hospital discharged A.W. on Monday, May 3, the Department
placed her with Ford-Nyce and Ford. The court set a shelter care hearing for May
5 at which time A.K. moved to vacate the pick-up order and filed a brief in
opposition to the Department’s request for shelter care. A.K. argued that the pick-
up order violated ICWA, WICWA, and due process. At A.K.’s request, the court
continued the hearing to the next day to allow the court “to review the extensive
briefing provided by the parties.”
On May 6, the court held the shelter care hearing and considered A.K.’s
motion to vacate the pick-up order. Contrary to what was alleged in the
dependency petition, the Department agreed that ICWA and WICWA applied
because it had reason to know A.W. was an Indian child. The father, D.W., was
not present at the hearing but was represented by counsel who informed the court
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that D.W. had Native American ancestry. He further informed the court that,
because D.W. was involved in another dependency case in Cowlitz County, his
Native ancestry would have been known by the Department. The Department did
not contest this fact.
The court found that the Department’s omission of A.W.’s Native heritage
from the petition was “immaterial” for purposes of the pick-up order and concluded
that, although ICWA and WICWA applied, they “do not alter the standard by which
the Court needs to assess the order (RCW 13.34.050).” The court further rejected
A.K.’s due process challenge to the ex parte entry of the pick-up order.
The trial court reaffirmed that the pick-up order was compliant with RCW
13.34.050 and explained that it signed the order because
a. The mother was struggling and has struggled with substance abuse for a significant period of time. b. She has an 8-year-old daughter not in her custody. c. The father was in jail in Oregon and unavailable. d. There were discrepancies as to the mother’s reported drug use. e. The current placement could not identify when mother was using. f. One of the mother’s supports, Jordan, lives and works in Portland part time, leaving the monitoring of the care of the child up to Gary Ford, Jordan’s great uncle. g. Based on these facts the Court found it was provided with sufficient information to meet the standard of RCW 13.34.050.
The court nevertheless concluded that shelter care was no longer
necessary. The court found that since it signed the pick-up order, A.K. had
engaged with services by completing an intake with the Parent-Child Assistance
Program, meeting with her THS counselor, and starting a parenting class. It also
found that the mother had provided multiple negative UAs to the Department in the
intervening days. The court denied the Department’s request for shelter care and
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returned A.W. to A.K. as long as she lived with Ford-Nyce and Ford and complied
with various conditions.
A.K. sought, and this court granted, discretionary review of the order
denying the mother’s motion to vacate the pick-up order. Although the trial court
subsequently dismissed the dependency petition, making the appeal technically
moot, a commissioner of this court concluded that review was warranted to decide
whether the ex parte pick-up order violated A.K.’s procedural due process rights
and whether ICWA and WICWA imposes a heightened standard for removal at the
pick-up order stage.
ANALYSIS
Due Process
A.K. first argues that the trial court violated her procedural due process
rights under Mathews 6 by denying her request for a hearing before it entered a
pick-up order. We disagree.
Parents enjoy fundamental liberty interests in “the care, custody, and
management of their child[ren].” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.
Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Dependency of K.N.J., 171 Wn.2d 568,
574, 257 P.3d 522 (2011). “The due process clause of the Fourteenth Amendment
to the United States Constitution protects a parent’s right to the custody, care, and
companionship of her children,” a right which “cannot be abridged without due
process of law.” In re Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992).
“Due process requires that parents have notice, an opportunity to be heard, and
6 Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
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the right to be represented by counsel.” Id. at 611. We review alleged due process
violations de novo. In re Dependency of W.W.S., 14 Wn. App. 2d 342, 353, 469
P.3d 1190 (2020).
In assessing whether a parent has been provided procedures that comport
with the requirements of due process, we consider (1) the private interests
affected, (2) the risk of error created by the procedures used and the probable
value of any additional procedural safeguards, and (3) the State's interest. Key,
119 Wn.2d at 611; Mathews, 424 U.S. at 335.
Here, A.K.’s interest in challenging the removal of her child is a significant
one. Parental rights are “‘perhaps the oldest of the fundamental liberty interests
recognized by [the United States Supreme Court].’” In re Welfare of M.B., 195
Wn.2d 859, 868, 467 P.3d 969 (2020) (alteration in original) (quoting Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality
opinion)). We agree with A.K. and the State that the mother has a strong interest
in retaining custody of her daughter.
But A.W. also has private interests at stake here. A child’s liberty interests
in dependency proceedings include the interest in “being free from unreasonable
risks of harm and a right to reasonable safety; in maintaining the integrity of the
family relationships, including the child’s parents, siblings, and other familiar
relationships; and in not being returned to (or placed into) an abusive environment
over which they have little voice or control.” In re Dependency of M.S.R., 174
Wn.2d 1, 20, 271 P.3d 234 (2012). A.W.’s interests may not be aligned with those
of her mother if her health and safety are at risk.
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The State’s interest in a dependency proceeding is similarly “very strong.”
Id. at 18. According to our Supreme Court, in a dependency proceeding, the State
“has a compelling interest in both the welfare of the child and in ‘an accurate and
just decision.’” Id. (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 101
S. Ct. 2153, 68 L. Ed. 2d 640 (1981)). A.K.’s right to retain custody of her child
does not outweigh her child’s right to safety and the State’s right to ensure that
child’s safety.
That leaves us with an evaluation of the risk of an erroneous deprivation of
rights that the existing procedures create and the probable value, if any, of
providing additional procedural safeguards. M.B., 195 Wn.2d at 869. Here, we
assess whether the procedures outlined in RCW 13.34.050 are sufficient to protect
a parent from an unacceptable risk of the erroneous deprivation of custodial rights
and the value, if any, of requiring a court to conduct a hearing before granting a
Department request for an ex parte pick-up order. A.K. argues that the procedure
creates a significant risk to her rights because the court is relying solely on the
Department’s allegations. But in light of the other procedural protections in the
statute, we cannot agree that the risk of error is significant.
While the dependency statute allows the Department to request, and the
court to order, the removal of children from their parents without a hearing, it
provides numerous safeguards to ensure that the Department’s request is based
in fact and law and provides the parents with a prompt opportunity to address the
Department’s allegations, all designed to avoid an erroneous deprivation of
parental rights.
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First, the Department must meet a high evidentiary burden before a court
can issue an ex parte pick-up order. The Department must file a petition with the
court alleging that the child is dependent and that the child’s health, safety, and
welfare will be “seriously endangered” if not taken into custody. RCW
13.34.050(1)(a). The Department must also file an affidavit or declaration in
support of the petition, setting out the “specific factual information evidencing
reasonable grounds that the child’s health, safety, and welfare will be seriously
endangered if not taken into custody and at least one of the grounds set forth
demonstrates a risk of imminent harm to the child.” RCW 13.34.050(1)(b). The
court may enter the order only if, based on the Department’s evidence, it finds
reasonable grounds to believe that the child is dependent and that the child’s
health, safety, and welfare will be seriously endangered if not taken into custody.
RCW 13.34.050(1)(c).
If the Department cannot meet this evidentiary standard and fails to
demonstrate a risk of imminent harm, the statute specifically requires the
Department to notify the parents of the request to remove their child and to provide
the parents with an opportunity to be heard before the court can enter the pick-up
order. RCW 13.34.050(2).
Second, if the court grants a pick-up order, it must conduct a shelter care
hearing within 72 hours to determine whether the child may be safely returned to
the home. RCW 13.34.060(1), 065(1)(a). At the shelter care hearing, parents
have a right to be present, to be represented by counsel, and to present testimony
regarding the need or lack of need for shelter care. RCW 13.34.065(3). Any
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hearsay evidence “must be supported by sworn testimony, affidavit, or declaration”
of the person giving evidence. RCW 13.34.065(2)(c).
The court conducting the shelter care hearing must verify on the record that
the parents were given notice of the hearing and decide if the child can be safely
returned home and confirm that the Department had made efforts to place the child
with a relative. RCW 13.34.065(4)(a)-(c). The court must also determine if
services were provided to the family to prevent the need for removal of the child,
whether the placement proposed by the Department is the least disruptive and
meets the child’s needs, and whether the child is an Indian child under ICWA and
WICWA. RCW 13.34.065(4)(d)-(h).
Under this statutory scheme, there may be a risk that a party’s parental
rights are erroneously impacted but the impact is short in duration—72 hours, at
most—and the combination of the predeprivation evidentiary requirements and the
postdeprivation safeguards mitigate that risk by providing for a prompt review of
the removal decision, and affording parents the opportunity to rebut the
Department’s allegations on the merits. The statute thus balances the
government’s interest in protecting the child from imminent harm against the risk
of erroneous deprivation of a parent’s fundamental interest in the care and custody
of their child. No more process is due.
In re Detention of Johnson, 179 Wn. App. 579, 322 P.3d 22 (2014), is
instructive. In that case, this court rejected a procedural due process challenge
similar to the one A.K. advances here. Under the statute at issue there, the
involuntary treatment act (ITA), ch. 71.05 RCW, a crisis responder ordered
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Johnson to be detained for 72 hours based on a finding that Johnson demonstrated
“an imminent risk of harm.” 179 Wn. App. at 582. Johnson argued that detaining
her without first giving her the opportunity to challenge the crisis responder’s
finding violated her right to procedural due process. Id. at 585. This court held
that the ITA provides adequate procedural safeguards to minimize the risk of an
erroneous deprivation of a detainee’s liberty. Id. at 590. While we recognized
Johnson’s significant liberty interest, we nonetheless concluded that this interest
was outweighed by the State’s paramount interest in public safety and that the
predetention high evidentiary standard and the postdeprivation right to a prompt
hearing provided adequate protection against an erroneous detention. Id. at 591.
As in Johnson, A.K. has an undeniably strong interest in parenting A.W.,
which the government impacted when it removed her child from her custody.
However, just as Johnson’s recognized liberty interest was outweighed by the
State’s interest in public safety, so too is A.K.’s interest in parenting A.W.
outweighed by the government’s interest in protecting children from the risk of
imminent harm and A.W.’s interest in being free from such harm. And as in the
ITA, there are high evidentiary standards that the Department must meet before
the pick-up order may issue and there is a mandatory, prompt postdeprivation
hearing to allow the parent the opportunity to challenge the veracity and sufficiency
of the State’s evidence.
Moreover, A.K.’s requested hearing before the issuance of a pick-up order
would provide only minimal additional protections while creating significant risks to
the children the Department must protect. Because removal is allowed only when
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a risk of harm is imminent, delaying that removal for a court hearing would delay
the Department’s ability to ensure a child’s safety. We also believe requiring courts
to conduct such hearings would be impractical and offer minimal additional
protections to the parents who would have little time to obtain counsel, and almost
no chance to gather evidence or arrange for witnesses to testify to refute
Department evidence of their inability to parent the child safely. Issuing the ex
parte pick-up order under RCW 13.34.050 without first conducting a hearing to
allow A.K. to challenge the Department’s evidence did not violate her procedural
due process rights.
Emergency Pick-Up Order under ICWA
A.K. next argues that the pick-up order violated ICWA and WICWA because
the Department failed to prove, and the court did not find, that A.W. faced an
imminent risk of physical harm.
We review the trial court’s denial of a motion to vacate an order under CR
60(b) for abuse of discretion. Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn.
App. 803, 821, 225 P.3d 280 (2009). An abuse of discretion occurs when the trial
court applies the wrong legal standard or bases its ruling on an erroneous view of
the law. State v. Cawyer, 182 Wn. App. 610, 616, 330 P.3d 219 (2014); In re
Marriage of Shortway, 4 Wn. App. 2d 409, 418, 423 P.3d 270 (2018).
The trial court held that ICWA and WICWA “do not alter the standard by
which the Court needs to assess the pick-up order (RCW 13.34.050).” The
Department asks this court to affirm this decision and hold that the evidentiary
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standard for the emergency removal of any child is “imminent risk of harm” whether
that removal occurs under RCW 13.34.050, ICWA, or WICWA.
Congress enacted ICWA to remedy the historical destruction of Native
families and communities while ensuring the safety of Native children. In re
Dependency of Z.J.G., 196 Wn.2d 152, 157, 471 P.3d 853 (2020). ICWA
establishes “minimum Federal standards for the removal of Indian children from
their families and the placement of such children in foster or adoptive homes . . . .”
25 U.S.C. § 1902. Washington enacted WICWA in 2011, and several of its
provisions are identical or analogous to ICWA. In re Adoption of T.A.W., 186
Wn.2d 828, 843, 383 P.3d 492 (2016). ICWA and WICWA are generally
interpreted coextensively unless one provides more protection than the other, in
which case we apply the more protective act. In re Welfare of A.L.C., 8 Wn. App.
2d 864, 872-73, 439 P.3d 694 (2019). The statutes must “‘be construed liberally
in favor of the Indians, with ambiguous provisions interpreted to their benefit.’”
Z.J.G. 196 Wn.2d at 163-64 (quoting Montana v. Blackfeet Tribe of Indians, 471
U.S. 759, 766, 105 S. Ct. 2399, 85 L. Ed. 2d 753 (1985)).
ICWA generally applies to any “child custody proceeding” involving an
“Indian child.” 25 U.S.C. §§ 1911(a), 1912(a). Under ICWA, a “child custody
proceeding” includes any “ʻfoster care placement,’” defined as “any action
removing an Indian child from its parent or Indian custodian for temporary
placement in a foster home . . . where the parent or Indian custodian cannot have
the child returned upon demand, but where parental rights have not been
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terminated.” 7 25 U.S.C. § 1903(1)(i). Federal regulations provide that ICWA
applies to any state court proceeding involving the emergency removal or
placement of an Indian child. 25 C.F.R. §§ 23.103(a), 23.2. See BUREAU OF INDIAN
AFFAIRS, U.S. DEP'T OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD
WELFARE ACT 12-13 (Dec. 2016) (BIA Guidelines). 8
Under section 1922 of ICWA:
Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child . . . from his parent or Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child.
25 U.S.C. § 1922 (emphasis added). 9 And in any emergency removal of an Indian
child, the state court must “[m]ake a finding on the record that the emergency
removal or placement is necessary to prevent imminent physical damage or harm
to the child.” 25 C.F.R. § 23.113(b)(1).
RCW 13.34.050, however, uses a different standard for the emergency
removal of a child from a parent. It provides:
(1) The court may enter an order directing a . . . child protective services official to take a child into custody if: . . . an affidavit or declaration is filed by the department in support of the petition setting forth specific factual information evidencing reasonable grounds that the child’s health, safety, and welfare will be seriously endangered if not taken into custody and at least one of the grounds set forth demonstrates a risk of imminent harm to the child. ‟Imminent harm” for purposes of this section shall include, but not be limited to, circumstances of sexual abuse, sexual exploitation as defined in RCW 26.44.020, and a parent’s failure to perform basic parental functions, obligations, and duties as the result of substance abuse; and (c) the court finds reasonable grounds to believe the child is
7 WICWA defines a “child custody proceeding” in identical terms. See RCW 13.38.040(3)(a). 8 https://www.indianaffairs.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf
[https://perma.cc/3AJ5-PBCA]. 9 WICWA contains an identical emergency removal provision. See RCW 13.38.140(1).
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dependent and that the child's health, safety, and welfare will be seriously endangered if not taken into custody.
(Emphasis added.)
In Z.J.G., 196 Wn.2d at 174, our Supreme Court explicitly stated that “ICWA
provides a heightened standard for removal [of an Indian child] during emergency
proceedings,” comparing the “imminent physical damage or harm” language in 25
U.S.C. § 1922 to the standard for removing a child at a shelter care hearing under
RCW 13.34.065(5)(a)(ii)(B). It went on to hold that when a court has “reason to
know” a child is or may be an Indian child, “it must apply ICWA and WICWA
standards.” Id.
The Department contends the “imminent risk of physical damage or harm”
standard in 25 U.S.C. § 1922 and RCW 13.38.140 is the same as the removal
standard in RCW 13.34.050. We cannot agree. The definition of “imminent harm”
under the state dependency statute is broadly worded to include a “failure to
perform basic parental functions.” Under Department regulations, “child abuse or
neglect” includes any negligent treatment that creates a risk of injury “to the
physical, emotional, or cognitive development of the child.” WAC 110-30-
0030(5)(e)(iv) (“What is child abuse or neglect?”). By contrast, ICWA and WICWA
both require a showing of “physical damage or harm” and would not be satisfied
by a showing of emotional abuse or neglect. See Indian Child Welfare Act
Proceedings, 81 Fed. Reg. at 38,778 (June 14, 2016) (explaining the Bureau of
Indian Affairs’ position that a failure to ensure one’s child attends school would not
meet the federal standard).
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We conclude that a Department motion for a pick-up order is an emergency
proceeding to remove a child from its parents within the meaning of ICWA. Under
RCW 13.34.050(1)(a), the Department cannot seek the emergency removal of a
child without simultaneously filing a dependency petition. If the Department thus
knows or has reason to know that the child is an Indian child, it must notify the
court of this fact under RCW 13.34.040(3) and the court must apply the heightened
emergency removal standard of 25 U.S.C. § 1922 and 25 C.F.R. § 23.113 and
make the requisite factual finding to satisfy the federal regulations.
The trial court here erred in concluding that A.W.’s status as an Indian child
was immaterial at the pick-up order stage. It was material because it triggered a
different and heightened emergency removal standard under ICWA and required
the trial court to make a specific factual finding—that removal was necessary to
prevent imminent physical damage or harm to A.W. The trial court applied the
wrong legal standard both in issuing the pick-up order and in denying A.K.’s motion
to vacate that order. The trial court thus abused its discretion in denying A.K.’s
motion to vacate the April 30, 2021 pick-up order.
WICWA’s “Active Efforts” Requirement
Finally, A.K. contends the Department failed to make “active efforts” to
prevent the removal of A.W. from her custody before seeking the ex parte pick-up
order. The Supreme Court recently held that WICWA requires the Department to
make active efforts before any involuntary foster care placement but recognized
“that law enforcement and the [D]epartment may be called on to take children into
protective custody under emergency circumstances where prior active efforts are
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not possible or required by WICWA.” In re Dependency of J.M.W., No. 99481-1,
slip op at 10 (Wash. July 21, 2022),
https://www.courts.wa.gov/opinions/pdf/994811.pdf. Where the Department has
“prior contact with the family and reason to believe the child was at risk of physical
damage or harm, it [has] an obligation to at least begin active efforts to avoid
breaking up the family.” Id. at 11-12. When active efforts are required, but not
established, the child should be returned to their parents unless it is established
that doing so would subject the child to substantial and immediate danger or threat
of such danger. Id. at 12-13. It also held that at shelter care hearings, WICWA
requires the trial court to “consider whether active efforts had been taken” and to
return the child home when “removal or placement is no longer necessary to
prevent imminent physical damage or harm to the child.” Id. at 12-13.
Whether WICWA required the Department to engage in active efforts in this
particular case is now moot as the trial court has dismissed the dependency
petition. We therefore need not reach the issue in this appeal.
Reversed. 10
WE CONCUR:
10 Because the dependency proceeding has been dismissed, there is no need to remand the matter
to the trial court for the purpose of vacating the pick-up order.
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