In Re Welfare of MG

201 P.3d 354
CourtCourt of Appeals of Washington
DecidedFebruary 10, 2009
Docket36975-3-II
StatusPublished
Cited by22 cases

This text of 201 P.3d 354 (In Re Welfare of MG) 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 Welfare of MG, 201 P.3d 354 (Wash. Ct. App. 2009).

Opinion

201 P.3d 354 (2009)

In re The WELFARE OF MG, Minor Child.

No. 36975-3-II.

Court of Appeals of Washington, Division 2.

February 10, 2009.

*356 Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Janet Cattano, Port Angeles Office of the Atty. General, Port Angeles, WA, for Respondent.

PENOYAR, J.

¶ 1 Born several weeks early, underweight, and suffering from drug withdrawals, MG was placed in State care. MG's mother, KS, agreed to a dependency order that allowed MG to be placed with her while she underwent inpatient drug treatment, subject to approval from MG's medical care specialists. Subsequently, MG's care specialists determined that MG was too weak to immediately join KS in treatment and KS petitioned the juvenile court to revoke her agreed dependency order. The trial court denied her motion.

¶ 2 On appeal, KS argues that the dependency order should be invalidated because the juvenile court failed to follow several provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq. and failed to follow several RCW 13.34.110(3) provisions. Further, KS claims the order is invalid because the juvenile court lacked authority to enter a dependency order as to only one parent. Lastly, KS argues that the juvenile court abused its discretion in denying her motion to revoke the agreed order. None of KS's claims has merit and we affirm.

FACTS

¶ 3 On September 10, 2007, an Olympic Medical Center (OMC) employee referred MG to the Washington State Division of Children and Family Services (DCFS). MG, an Indian child, born premature 2 days earlier, weighed 4 pounds and was "definitely withdrawing from [some drug]...." Clerk's Papers (CP) at 33. MG's pediatrician believed MG was suffering withdrawal from opiates and placed her on morphine and antibiotics to treat the symptoms.

¶ 4 MG's mother, KS (a member of the Lower Elwah Tribe), admitted in an interview with a DCFS intake worker on September 11, 2007, that she had, in the past, abused methamphetamines, cocaine, opiates, and alcohol.[1] During the interview, KS denied using any illegal drug during her pregnancy but during an interaction with an OMC practitioner immediately following MG's birth, KS reported that she last abused drugs four months earlier. To explain how drugs may have entered her system during pregnancy, KS admitted that she may have "accidentally ingested a street-purchased cocktail drug" and that, around August 8, 2007, a female friend may have spiked her milk with Oxycodone. CP at 33. When the DCFS worker showed KS the OMC papers *357 documenting her attempt to obtain Oxycodone from that facility on May 14, 2007, KS adamantly denied that she had done so.[2]

¶ 5 The State prepared a dependency petition on September 13, 2007. The State subsequently obtained an order placing MG in DCFS custody. Because she required serious medical monitoring, DCFS placed MG in Pediatric Interim Care Center for continued treatment. On September 18, in accordance with 25 U.S.C. § 1912, a certification of an Indian expert was filed with the court, supporting out-of-home placement.

¶ 6 On October 11, KS signed an agreed dependency order, thus forgoing a fact finding hearing. In return, the DCFS agreed that MG could stay with KS at Perinatal Treatment Services (Perinatal) while KS underwent treatment for drug addiction. This plan depended on MG's health care provider's approval and Perinatal's willingness to follow MG's health care provider's recommendations.

¶ 7 MG's health care provider, Pediatric Interim Care Center, did not approve the move due to MG's weakened immune system and, at the October 25 disposition hearing, KS moved to withdraw her consent to the agreed order of dependency and sought a fact finding hearing. KS argued that she only agreed to the order on the condition that MG be able to join her in treatment. Further, KS argued that a social worker improperly selected the "yes" boxes on a screening test, without her consent, thereby causing the drug evaluation center to conclude that she was an addict. Report of Proceedings (RP) (Oct. 25, 2007) at 8-9. The juvenile court denied her motion to withdraw consent; KG now appeals.[3]

ANALYSIS

I. Background on the ICWA

¶ 8 Recognizing that "there is no resource more vital to the continued existence and integrity of Indian tribes than their children" and "that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children," Congress enacted the ICWA establishing "minimum Federal Standards for the removal of Indian children." 25 U.S.C. § 1901-1902. The ICWA applies whenever an "Indian child" is the subject of a "child custody proceeding."[4] 25 U.S.C. § 1903(1) and (4).

¶ 9 Different requirements apply for the voluntary placement as opposed to involuntary removal of an Indian child. Special care is taken to ensure that Indian parents voluntarily releasing their children to the care of others fully understand the terms of that release. 25 U.S.C. § 1913(a). Further, in a voluntary proceeding, if an Indian parent desires to withdraw his/her consent to placement, the child must be returned to his/her care. 25 U.S.C. § 1913(b).

¶ 10 Procedural and substantive requirements for an involuntary removal are found in 25 U.S.C. § 1912 of the ICWA. This section requires notification of the Tribe, appointment of counsel for the parents, an offer of remedial or rehabilitative services, and a showing that continued custody by the parents is likely to result in "serious emotional or physical damage to the child." 25 U.S.C. § 1912(e).

II. 25 U.S.C. § 1913(a) and § 1912

¶ 11 KS argues that in entering the agreed order of dependency, the juvenile court violated 25 U.S.C § 1913(a) of the ICWA when it did not discuss the terms and consequences of consent with her or complete *358 the required certificate recording her understanding.

¶ 12 25 U.S.C. § 1913(a) provides in part:

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201 P.3d 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-welfare-of-mg-washctapp-2009.