FILED JANUARY 25, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Dependency of: ) No. 39603-7-III ) A.T. ) PUBLISHED OPINION )
PENNELL, J. — A.T. is an Indian child as defined by the federal Indian Child
Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and the Washington State Indian
Child Welfare Act (WICWA), chapter 13.38 RCW. After a dependency fact-finding and
disposition hearing, the juvenile court found A.T. was dependent and ordered out-of-
home placement due to safety concerns prompted by signs that A.T.’s father has
significant untreated mental illness.
A.T.’s father appeals, primarily arguing the Department of Children, Youth, and
Families failed to engage him in active efforts to prevent the breakup of A.T.’s family.
We agree with the father in part.
We agree the Department fell short on its obligation to provide active efforts.
Although the Department’s social workers worked extensively with the father, they never
specifically engaged the father in an effort to help him overcome his aversion to mental No. 39603-7-III In re Dependency of A.T.
health treatment. While the father could not be ordered to complete mental health services
prior to the court’s dispositional order, this did not excuse the Department from actively
encouraging voluntary participation in services so as to avoid out-of-home placement.
Although we disagree with the juvenile court’s finding regarding active efforts, we
nevertheless affirm A.T.’s out-of-home placement. At the conclusion of the dependency
fact-finding hearing, the juvenile court found that returning A.T. to his father’s care
would subject him to substantial and immediate danger or threat of such danger. This
finding was amply supported by the record. Thus, the juvenile court was justified in
ordering that A.T. be placed out of the home, despite the absence of active efforts. See
25 U.S.C. § 1920; RCW 13.38.160.
FACTS
A.T. is an Indian 1 child under ICWA and WICWA. He has spent most of his life
in the exclusive care of his father. His mother has had limited involvement. A.T. was
1 “Indian” is the statutory term of art used in ICWA and WICWA. See In re Dependency of R.D., 27 Wn. App. 2d 219, 230 n.7, 532 P.3d 201 (2023) (citing 25 U.S.C. § 1903(4); RCW 13.38.040(7)). A.T. is an Indian child because his maternal grandmother is an enrolled member of the Oglala Sioux Tribe. See In re Dependency of Z.J.G., 196 Wn.2d 152, 174-75, 471 P.3d 853 (2020) (noting ICWA and WICWA apply whenever a court has reason to know a child has tribal heritage); In re Adoption of T.A.W., 186 Wn.2d 828, 847, 383 P.3d 492 (2016) (noting, for purposes of ICWA and WICWA, an “Indian family” is an Indian child’s family, regardless of the parent’s Indian status).
2 No. 39603-7-III In re Dependency of A.T.
removed from his father’s home shortly after his eighth birthday based on health and
safety concerns.
Facts leading up to A.T.’s removal
The Department has been involved with A.T. and his family since A.T.’s birth.
A.T. has eye conditions that place him at risk of vision loss. He had surgery as a toddler,
but still requires regular checkups and monitoring. Over the course of his life, A.T.’s
father has struggled to facilitate necessary eye care for A.T. But in prior involvement with
the Department, the father had been responsive to A.T.’s eye care needs when prompted
to take action. See 1 Rep. of Proc. (RP) (Dec. 8, 2022) at 107.
A.T.’s father was born in Brazil and spent much of his childhood in a Brazilian
orphanage. The father was adopted by an American family and moved to Spokane when
he was approximately 10 years old. When he came to the United States of America,
the father had limited English proficiency. He was often bullied at school. As an adult,
A.T.’s father has shown to be extremely distrustful of government officials, and he is
fearful of institutions.
While the father’s traumatic childhood has likely contributed to his distrust of
government, individuals who have worked with the father believe the father’s distrust
is also rooted in ongoing “mental health” issues. See 1 RP (Dec. 8, 2022) at 47; 1 RP
3 No. 39603-7-III In re Dependency of A.T.
(Dec. 20, 2022) at 358, 435. The father frequently exhibits paranoia; grandiose thinking;
persecutory delusions; pressured, rapid speech; and erratic behavior. He often expresses
the belief he is being surveilled or bugged by government agencies. For example, during
the course of this dependency the father revealed he had dismantled the smoke detectors
in his apartment and was storing them in his dishwasher in order to prevent government
surveillance.
Although the father’s apparent mental health struggles are both obvious and
significant, he is not involved in mental health treatment. Social workers have discussed
mental health concerns with the father, but he has always said he is “not interested” in any
help. 1 RP (Dec. 8, 2022) at 73; see also 1 RP (Dec. 20, 2022) at 422-23. The
Department’s social workers have deferred to the father’s wishes, reasoning he has the
“autonomy and self-determination to decline” services. 1 RP (Dec. 8, 2022) at 74. There
is no evidence in the record before us that any of the Department’s social workers have
ever worked with the father to encourage him to rethink his resistance to mental health
assistance.
In May 2022, Department social worker Shalana Zackuse began working with
A.T. and his father after receiving a report of concern about the father’s apparent “mental
health paranoia.” Id. at 20. During a family visit, Ms. Zackuse discovered A.T. was not
4 No. 39603-7-III In re Dependency of A.T.
enrolled in school, nor had he received any medical care since the onset of the COVID-19
pandemic. The father claimed he was homeschooling A.T. because he feared public
school educators were “programming” his son. Id.
Ms. Zackuse worked with the father to address issues regarding school and A.T.’s
health. She explained homeschooling requirements and advised about the possibility of
online and tribal schools. Ms. Zackuse drove the father to an eye clinic so he could
attempt to reestablish A.T.’s eye care. And she engaged in other efforts to address the
family’s needs, including facilitating access to housing assistance, clothing, and hygiene
supplies.
Throughout her work with the family, Ms. Zackuse struggled to engage the father
in conversations about his need for services. The father has a pressured speech pattern
marked by nonlinear and paranoid thought processes. He generally dominates
conversations, making it hard for others to participate. Ms. Zackuse found the father’s
problematic speech pattern would “escalate[]” when she talked about resources. Id. at 27.
While reviewing the family’s case file, Ms. Zackuse discovered a note mentioning
a 2021 police report. Further investigation revealed the report included an allegation that
A.T. had told a neighbor “his best friend is his dad’s wiener and . . . he likes to play with
his dad.” Id. at 33. This caused Ms. Zackuse to become concerned about the possibility of
5 No. 39603-7-III In re Dependency of A.T.
sexual abuse. She arranged to meet the father at his home on September 8, 2022.
A second social worker accompanied Ms. Zackuse to the visit. 2
The September 8, 2022, home visit and emergency removal
At this September 8 meeting, the father cycled between periods of agitation and
relative calm. Ms. Zackuse noticed the father seemed more paranoid than usual, and she
grew concerned because the content of the father’s delusions had begun to be targeted
at the Department and herself. For instance, he claimed Department employees are all
preprogrammed “slaves.” Id. at 37. The father told Ms. Zackuse he believed she had
been sent by his own father, and informed her he “wasn’t afraid to go to jail.” Id. at 44;
see id. at 34.
During the visit, the father met with the social workers in a bedroom and tried to
keep the social workers away from A.T. Eventually, A.T. wandered into the bedroom
and Ms. Zackuse noticed the child had bruising under his right eye. The father explained
the bruise was the reason he did not want them to see A.T. According to the father, the
previous night he had been teaching A.T. to sweep when he accidentally struck him in
2 It was not typical for two social workers to jointly visit a parent’s home, but the Department had instituted an unofficial policy of not allowing its female employees to be alone with the father after he purportedly made “inappropriate comments” to a prior social worker. 1 RP (Dec. 8, 2022) at 34.
6 No. 39603-7-III In re Dependency of A.T.
the face with the end of the broom handle. The father “found it suspicious” the social
workers had come to his home on a day that A.T. had a visible injury. Id. at 34. The father
believed the Department knew about A.T.’s black eye in advance because they had been
surveilling him in his home. The father forbade the social workers from asking A.T. about
the injury.
The conversation was moved to the living room and, at that point, Ms. Zackuse
became concerned A.T. was engaging in sexualized conduct. A.T. straddled his father’s
lap while thrusting his hips, and kissed his father’s neck while caressing his chest and
face. When Ms. Zackuse mentioned her concern about potential sexual abuse, the father
denied the implication, stating, “children are preprogrammed sexually” and that he and
A.T. “are just very affectionate.” Id. at 43. The father told Ms. Zackuse he had been
“dabbling” in MDMA (3,4-methylenedioxymethamphetamine), also known as ecstasy,
id. at 39, and told her he used drugs in the bedroom, away from his son. Id. at 42.
Ms. Zackuse also grew alarmed for A.T.’s physical safety based on the father’s use
of the word “‘sacrifice.’” Id. at 35. According to Ms. Zackuse,
[The father] was talking about me being sent there by his dad and his dad is part of the elites and the Feds, and in regards to the insurance money, the millions of dollars of insurance money on [A.T.]. And that he needed to just sacrifice [A.T.] and get rid of him so that he could just get the money. .... . . . I asked him, like, what did he mean by sacrifice . . . . And he said that,
7 No. 39603-7-III In re Dependency of A.T.
oh, I just mean, like, give him to my dad so he can go to foster care.
Id. Based on her interactions with A.T. and his father, Ms. Zackuse made a referral to the
county’s crisis response team. Mental health professionals and uniformed law
enforcement officers responded to the family home later that evening.
The law enforcement officers immediately suspected the father of being under the
influence of drugs. This was based not only on the father’s rapid and pressured speech
pattern, but also on a strong chemical smell coming from the father’s bedroom that was
consistent with methamphetamine. 3 During the intervention, the father also admitted to
using an unnamed substance.
The crisis responders were unable to engage A.T.’s father in a productive
conversation. He talked about conspiracies, socialism, and his belief that people had come
to his door asking to buy A.T. The responders noted the apartment’s kitchen was mostly
devoid of food, and all of the smoke detectors had been dismantled or covered in paper.
Based on their observations, the police decided to effectuate an emergent removal of A.T.
that night. 4
3 The father subsequently admitted to “heavy” use of methamphetamine. 1 RP (Dec. 15, 2022) at 260. 4 A.T. was placed with his paternal aunt the next day. By mid-November, the aunt found herself unable to manage A.T.’s behavior, and A.T. was eventually placed in a foster home.
8 No. 39603-7-III In re Dependency of A.T.
Post-removal facts and the dependency process
Post-removal interactions with A.T. revealed signs of medical and emotional
neglect. In addition to his untreated eye conditions, A.T. was thin and poorly groomed.
His skin was scarred by apparent insect bites and he had significant tooth decay.
A.T.’s speech was delayed and it was discovered his academic performance and social
development were at a kindergarten or pre-kindergarten level. A.T. had significant trouble
regulating his emotions and often engaged in conduct similar to that of a toddler. A.T.’s
care providers found he sometimes smeared feces and exhibited sexualized conduct.
The Department petitioned for dependency, alleging A.T. was dependent on the
basis of having no parent capable of adequately caring for him such that he was in danger
of substantial damage to his development. See RCW 13.34.030(6)(c). 5 The Department
alleged A.T. would be at “significant risk” of damage if returned to his father, on the
basis of “unaddressed mental health, . . . substance use, concerns of abuse, [and]
instability/chaotic lifestyle.” Clerk’s Papers (CP) at 3.
An uncontested shelter care hearing was held on September 14, 2022. At the
5 The petition also alleged abuse and neglect as bases for dependency, see RCW 13.34.030(6)(b), but the juvenile court treated the petition as invoking only the subsection (6)(c) basis. Just over two months after the petition was filed, A.T.’s mother stipulated to entry of an order of dependency and disposition order for out-of-home placement.
9 No. 39603-7-III In re Dependency of A.T.
hearing, the juvenile court found it would be contrary to A.T.’s welfare for him to return
home and that continued out-of-home placement was necessary to prevent imminent
harm. The Department recommended the father participate in (1) a chemical dependency
assessment and any recommended treatment, (2) random urinalysis (UA) testing,
(3) a parenting assessment, (4) an evidence-based parenting program, (5) mental health
treatment, (6) a domestic violence assessment, (7) a neuropsychological evaluation,
and (8) a sexual deviancy assessment, along with following the recommendations of any
providers. Of these recommended services, the father agreed only to the evidence-based
parenting program. The court granted the father three supervised visits with his son per
week.
Justyna Dokken was the social worker assigned to the dependency. Ms. Dokken
immediately recognized reliable communication might be a barrier for the father, so she
procured a mobile phone for him with prepaid minutes, and helped him set the phone up.
The father believed he should have been provided an Apple iPhone instead of an Android
phone because “Android in itself is socialism.” 1 RP (Dec. 15, 2022) at 292. When the
father told her he wanted a planner, Ms. Dokken procured one for him and filled in all
of A.T.’s appointments, as well as the father’s own assessments, into its pages.
For the first two months of the dependency, Ms. Dokken communicated with the
10 No. 39603-7-III In re Dependency of A.T.
father several times per week, via phone calls, text messages, and in-person meetings, and
maintained at least weekly contact in the following months. Due to the father’s speech
patterns, each phone call and in-person meeting typically lasted one to two hours. At
numerous meetings, Ms. Dokken provided the father with written lists of providers for
each of the Department’s recommended services, along with instructions for how to
contact such providers and make appointments. She also offered to call providers,
including mental health professionals, with the father. Despite these offers, the father
persistently denied any need for most services—including a chemical dependency
evaluation, mental health treatment, domestic violence assessment, neuropsychological
evaluation, and sexual deviancy assessment.
The father was willing to do one UA exam in late September. When the father
needed a ride to the testing facility, Ms. Dokken personally drove him there. Ms. Dokken
parked outside the facility, but when she noticed the father had entered a neighboring
building by mistake, she got out of the car and steered him to the correct entrance. When
the father came back out, Ms. Dokken drove him to the nearest bus stop to show him
where it was in case he returned on his own for another UA exam, and gave him prepaid
bus passes. The result of this UA exam was negative for all substances, but the father has
not participated in any further testing.
11 No. 39603-7-III In re Dependency of A.T.
On October 3, 2022, the father participated in an intake session for an evidence-
based parenting program. The service provider was unable to complete the intake because
the father’s pattern of rapid and pressured speech prevented the provider from obtaining
necessary information. The father insisted on discussing his conspiracy theories about
the Department. He also made comments about the female service provider’s body and
talked about how much he loved women. The service provider ultimately concluded
the father’s mental health would need to stabilize before he could meaningfully
participate in any parenting program. The provider recommended that a
neuropsychological evaluation be conducted first before making any further attempts
to work on the father’s parenting skills. 6
Ms. Dokken summarized her efforts to engage the father with services as follows:
she provided service letters and referrals for services; she scheduled appointments and
offered to call service providers; she helped with transportation, both by giving the father
rides and providing bus passes; she sent the father text messages to remind him of
appointments; and, upon his request, Ms. Dokken provided the father with a prefilled
daily planner. Specific to mental health, Ms. Dokken described her efforts to provide
6 The Department arranged for the father to meet with another provider for a parenting assessment, who made a similar recommendation.
12 No. 39603-7-III In re Dependency of A.T.
services as:
I have provided service letters on I believe four or five occasions, I believe four. And discussed . . . the list of providers with him and offered to make those calls with him. He’s declined to engage in mental health [services] and declined my assistance in calling providers.
1 RP (Dec. 20, 2022) at 470. There is no indication Ms. Dokken worked with the father
to otherwise help him overcome his resistance to mental health treatment.
The father has been a difficult client for Ms. Dokken. Given his rapid speech
pattern and insistence on discussing government conspiracies, conversations are often
long and unproductive. To make things worse, the father’s interactions with Ms. Dokken
have been peppered with inappropriate sexual comments. The father has sent Ms. Dokken
text messages commenting on her physical appearance. And he has told Ms. Dokken’s
coworkers they need to “keep [her] single.” Id. at 447. Ms. Dokken does not feel safe
being alone with the father. As a result, she always has a second social worker accompany
her on visits with the father.
Throughout the dependency, Ms. Dokken has prioritized facilitating the court-
ordered visitation between A.T. and his father. As has been true for other services, this
has been extremely difficult. A.T. has often engaged in disruptive outbursts during
visitation and expressed anger or frustration with his father, which the father has proved
unable to manage. Meanwhile, the father has attempted to engage with visitation
13 No. 39603-7-III In re Dependency of A.T.
supervisors through inappropriate conversations about the dependency process and
lengthy conversations about various conspiracies. The visitation facility that originally
picked up the ongoing referral cancelled regular visits, and multiple other agencies
thereafter expressed an unwillingness to work with the father on an ongoing basis.
But Ms. Dokken worked creatively and diligently to arrange for alternate visitation
opportunities through medical appointments, one-time emergent visits, and offers for
visits directly supervised by herself.
Review hearings and fact-finding hearing
The juvenile court held two review hearings between the initial shelter care
hearing and the dependency fact-finding hearing. One occurred in October and the other
in November. At each of the hearings, the juvenile court found active efforts had been
made. See CP at 135, 165-66. The description of active efforts was largely identical in
both the October and November orders. The court summarized the Department’s active
efforts as:
[C]onsistent communication with the parents including in person and in writing, ensuring the parents are aware of all of the child’s appointments and have an opportunity to attend, timely referrals for services, including all recommended services, offering to call and calling service providers to determine availability, multiple referrals to visitation providers, providing phone and minutes and assisting with activation, providing bus passes and
14 No. 39603-7-III In re Dependency of A.T.
gas cards, providing transportation to services, conduct FTDM,[7] inviting Tribe to shared planning and all hearings, placing the child with relative and supporting that placement by assisting with daycare and transportation, providing concrete goods, referring for home study, enrolling child in school, and ensuring his educational and medical referrals and appointments are addressed.
Id. at 135. 8 The court in its November order found that returning A.T. back home would
subject him to “substantial and immediate danger” based on the father’s “unaddressed
mental health, unmitigated substance use and . . . unwilling[ness] to change behaviors that
impact child safety and welfare.” Id. at 166.
The dependency fact-finding hearing was held in December 2022 and lasted
several days. Witnesses testified consistent with the above summary. One of the witnesses
was a qualified expert witness (QEW) under ICWA and WICWA. The QEW testified he
believed removal from the home was in A.T.’s best interest, and opined that continued
custody of A.T. by his father would likely result in serious emotional or physical damage
to the child.
The juvenile court commissioner found, by a “preponderance of the evidence,”
that A.T. was dependent, that the State had provided active efforts to prevent the breakup
7 Family team decision making meetings. 8 The orders also incorporated declarations by Ms. Dokken, which provided additional details.
15 No. 39603-7-III In re Dependency of A.T.
of A.T.’s family, and that thus far such efforts had been unsuccessful. Id. at 359-60.
The court cited the state of the father’s mental health as the primary factor obstructing his
ability to adequately care for A.T. According to the court, the father “has not made any
progress in addressing or mitigating the challenges [that] brought [A.T.] out of his care.”
Id. at 379.
The court further found “by clear, cogent, and convincing evidence” that returning
A.T. to his father would likely result in serious emotional or physical damage to the child.
Id. at 360. 9 The court also found that A.T. would be in “substantial and immediate danger
or threat of such danger should he be returned to [the father’s] care.” Id. 10
The court ordered a neuropsychological evaluation of the father and 30 days of
random UA testing. The court declined to order any other services, pending the results
of the neuropsychological exam.
The father timely appeals.
9 This finding is required any time the court orders out-of-home placement of an Indian child. See RCW 13.38.130(2). 10 This finding is required where out-of-home placement has been improperly ordered; for example, if the Department has not satisfied its obligation to provide active efforts. RCW 13.38.160. The juvenile court made this finding under RCW 13.38.160, despite also finding the Department had satisfied active efforts, at the request of the State.
16 No. 39603-7-III In re Dependency of A.T.
ANALYSIS
There are two stages to a dependency fact-finding and disposition hearing. First,
the Department must establish a child meets one of the definitions of “[d]ependent child”
under RCW 13.34.030(6). This finding must be made by a preponderance of the evidence.
RCW 13.34.130.
The second step of the dependency process is the disposition. Disposition involves
issues such as the child’s placement, visitation, and the parents’ service plan. A
dependency does not require a child be placed out of home. See RCW 13.34.130(1)(a).
But before an out-of-home placement may be ordered, ICWA and WICWA demand
additional protections for Indian families. First, the juvenile court must find that active
efforts have been made to prevent the breakup of the family. RCW 13.38.130(1);
25 U.S.C. § 1912(d). Second, the court must find “by clear and convincing evidence”
that continued custody by the child’s parents “is likely to result in serious emotional or
physical damage to the child.” RCW 13.38.130(2); 25 U.S.C. § 1912(e). If active efforts
have not been provided, the court may not order out-of-home placement unless it finds
the child would be in “substantial and immediate danger or threat of such danger” in
the parents’ care. RCW 13.38.160; 25 U.S.C. § 1920; see In re Dependency of A.L.K.,
196 Wn.2d 686, 703-04, 478 P.3d 63 (2020).
17 No. 39603-7-III In re Dependency of A.T.
The father does not challenge the trial court’s finding that A.T. meets the
definition of a “[d]ependent child” under RCW 13.34.030(6). Instead, he first argues
the Department failed in its obligation to provide active efforts. He also challenges
the trial court’s determinations that A.T. would (1) suffer likely damage in his care, and
(2) be in substantial and immediate danger in his care. We address each claim in turn.
Active efforts
Both ICWA and WICWA require the Department to engage parents in “active
efforts . . . designed to prevent the breakup of the Indian family.” RCW 13.38.130(1);
25 U.S.C. § 1912(d). 11 Under WICWA, the active efforts requirement applies any time
the court orders an out-of-home placement of an Indian child, including at shelter care
and dependency fact-finding hearings. See In re Dependency of J.M.W., 199 Wn.2d 837,
847, 514 P.3d 186 (2022). If the Department has contact with a family that raises a
“reason to believe” a child is “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 848.
“Active efforts means affirmative, active, thorough, and timely efforts intended
primarily to maintain or reunite an Indian child with his or her family.” 25 C.F.R. § 23.2.
11 Both ICWA and WICWA apply to juvenile courts in Washington. “We apply the provision that offers greater protections to Indian families.” In re Dependency of G.J.A., 197 Wn.2d 868, 907, 489 P.3d 631 (2021).
18 No. 39603-7-III In re Dependency of A.T.
Active efforts must be “timely and diligent,” RCW 13.38.040(1)(a), and “tailored to the
facts and circumstances of the case.” 25 C.F.R. § 23.2. The Department must not only
identify appropriate services for a parent, but work with the parent to “overcome barriers”
to the provision of services. 25 C.F.R. § 23.2(2); see In re Dependency of R.D., 27 Wn.
App. 2d 219, 233-34, 532 P.3d 201 (2023). Mere referrals to services are not enough.
RCW 13.38.040(1)(a)(ii); R.D., 27 Wn. App. 2d at 234. Furthermore, if “optimum
services” for the family “do not exist or are not available,” active efforts will involve
“[c]onsidering alternative ways to address the needs of the Indian child’s parents and,
where appropriate, the family.” 25 C.F.R. § 23.2(10).
To satisfy the active efforts requirement, the Department must “meaningfully
engage” with a parent to address the services necessary for family reunification. In re
Dependency of G.J.A., 197 Wn.2d 868, 895, 489 P.3d 631 (2021). Remedial services can
include “individual, group, and family counseling; substance abuse treatment services;
mental health services; assistance to address domestic violence; services designed to
provide temporary child care and therapeutic services for families; and transportation to
or from any of the above services and activities.” RCW 13.34.025(2)(a). An assessment
to determine necessary services is not, in and of itself, a remedial service. A.L.K., 196
Wn.2d at 708 (Montoya-Lewis, J., concurring).
19 No. 39603-7-III In re Dependency of A.T.
Whether the State satisfied the active efforts requirement is a mixed question
of law and fact. A.L.K., 196 Wn.2d at 697. “We review the underlying findings for
substantial evidence, but review de novo whether those findings satisfy the requirements
of ICWA” and WICWA. In re Parental Rights to D.J.S., 12 Wn. App. 2d 1, 37, 456 P.3d
820 (2020), overturned in part on other grounds by G.J.A., 197 Wn.2d at 901 n.16, 906
n.17. 12
A.T.’s father argues the State is required to prove it provided active efforts 12
by clear, cogent and convincing evidence. We have previously opined as much, but those holdings arose in the termination context rather than, as here, in an appeal from a dependency fact-finding hearing. See, e.g., D.J.S., 12 Wn. App. 2d at 28; In re Dependency of A.M., 106 Wn. App. 123, 134-35, 22 P.3d 828 (2001). By contrast, the United States Department of the Interior, Bureau of Indian Affairs “favorably views cases that apply the same standard of proof for the underlying action to the question of whether active efforts were provided (i.e., clear and convincing evidence for foster care placement and beyond a reasonable doubt for [termination of parental rights]).” U.S. BUREAU OF INDIAN AFFS., DEP’T OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT 44 (2016), https://www.bia.gov/sites/default/files/dup/assets/as- ia/raca/pdf/Guidelines%20for%20Implementing%20ICWA_2016_OIS%20BIA.pdf. The question of whether the services provided by the Department constitute active efforts is one of law, which is not subject to a burden of proof. See In re Welfare of A.L.C., 8 Wn. App. 2d 864, 872, 439 P.3d 694 (2019). There is an antecedent factual question: What did the Department do to provide services and when did they do it? See id. But, as is true here, those facts are rarely disputed. In such a case—where the parties disagree only about the legal component of the active efforts inquiry—it does not make sense to split hairs over which standard of proof applies to the factual component.
20 No. 39603-7-III In re Dependency of A.T.
The question of active efforts in this case is complex. Before the emergency
removal of A.T. from his father’s home in September 2022, the Department likely
satisfied its obligation. During the period of May through early September 2022,
Ms. Zackuse was aware that the father was distrustful of the government due to apparent
mental health struggles and that he refused treatment. Nevertheless, it appeared—based
on his history with the Department—that the father would be able to safely parent A.T.
if provided support such as help with appointments, transportation to services, and
information about schooling options. Thus, Ms. Zackuse acted accordingly.
But early in September, things changed. At that point, the father’s seemingly
worsening mental state and distrust of government required an intervention by a mental
health crisis team and an emergent removal of A.T. from the home. At that point, it was
apparent the father’s untreated mental health problems had become a significant barrier
to family unity. Thus, at that point, ICWA and WICWA obliged the Department to start
engaging the father in an effort to overcome his resistance to mental health treatment.
The Department did a lot of work with the father after A.T. was removed from his
care. Much of the work was aimed at facilitating visitation. Ms. Dokken worked tirelessly
and creatively to arrange for visits between A.T. and his father even after local visitation
providers proved unwilling to facilitate visits on an ongoing basis. Ms. Dokken arranged
21 No. 39603-7-III In re Dependency of A.T.
for emergent visits between father and son and offered to have visits take place under
the Department’s direct supervision. Ms. Dokken also helped the father arrange for a
parenting assessment and an intake with an evidence-based parenting program. And she
personally drove him to a facility for his UA test. Ms. Dokken frequently met with the
father and listened to his concerns, despite the fact that he was often inappropriate and
even made her feel unsafe.
But for everything Ms. Dokken and the Department did with the father, they did
not actively engage him on the issue of mental health services. Ms. Dokken testified that
when it came to mental health, she provided the father with service letters, discussed the
list of providers and offered to make phone calls. This is similar to what Ms. Zackuse had
done with respect to mental health prior to A.T.’s removal. Yet plainly, this type of effort
was not sufficient to help the father overcome his resistance to services. Something new
needed to be tried.
It is not uncommon for a parent to decline family preservation services. G.J.A.,
197 Wn.2d at 903, 905-06. The Department “should expect resistance from parents.”
A.L.K., 196 Wn.2d at 707 (Montoya-Lewis, J., concurring). Nevertheless, the duty to
provide active efforts persists. See G.J.A., 197 Wn.2d at 875 (holding the Department’s
duty to provide active efforts to Indian families is not excused by apparent futility).
22 No. 39603-7-III In re Dependency of A.T.
ICWA and WICWA demand case workers keep working with a parent despite the
parent’s rejection of services or failure to engage satisfactorily. A.L.K., 196 Wn.2d
at 699-700.
Given that social workers are obliged to persistently engage the parents of Indian
children, the active efforts requirement means the Department’s workers must engage
in self-evaluation, reflection, and a willingness to change strategy. Active efforts must
be meaningful. G.J.A., 197 Wn.2d at 895. This requirement is not met by repeating
unsuccessful strategies with the hope of a different result. Rather than continuing with
efforts that have previously failed, the active efforts requirement demands case workers
brainstorm new strategies, tailored to the specific needs of a particular case.
In this case, the strategy of recommending mental health services and offering to
make appointments was tried and failed. Given this circumstance, the Department was
obliged to actively reassess the situation and help the father “develop the skills required”
to understand the importance of mental health treatment and thereby “keep custody” of
A.T. D.J.S., 12 Wn. App. 2d at 31-32.
To be sure, prior to the dependency fact-finding hearing, the father could not be
ordered into services without his agreement. See RCW 13.34.065(4)(j). But that does not
mean the Department was relieved from trying to work with the father and encourage his
23 No. 39603-7-III In re Dependency of A.T.
voluntary participation in services. The Department’s obligation to provide active efforts
begins as soon as it has “reason to believe” an Indian child is at risk of harm in their
parents’ care. J.M.W., 199 Wn.2d at 840, 848.
Our decision should not be interpreted to mean that the Department can prove
active efforts by only demonstrating successful engagement. ICWA and WICWA
recognize that out-of-home placement will sometimes be required despite the
Department’s best efforts at family preservation. See RCW 13.38.130(1) (contemplating
that active efforts might “prove[] unsuccessful”); 25 U.S.C. § 1912(d) (same).
Nevertheless, the possibility—and even the seeming probability—of failure “does not
excuse” the Department from continuing to try. G.J.A., 197 Wn.2d at 906.
Despite all the work that was done with A.T.’s father, the record fails to show the
Department worked to actively engage the father in mental health services in a way that
might have helped him overcome his resistance to treatment. We therefore reverse the
juvenile court’s finding regarding active efforts.
Remedy for failure to provide active efforts
In the context of a dependency disposition requiring out-of-home placement, the
remedy for the Department’s failure to provide active efforts is to return the child home
unless doing so “would subject the child to substantial and immediate danger or threat
24 No. 39603-7-III In re Dependency of A.T.
of such danger.” RCW 13.38.160; 25 U.S.C. § 1920; see also A.L.K., 196 Wn.2d at
703-04. When an appellate court reverses a juvenile court’s findings as to active efforts,
the prescribed remedy is to remand for findings under the foregoing standard. A.L.K.,
196 Wn.2d at 703-04.
The Department argues remand for this purpose is unnecessary because the
juvenile court made sufficient findings to satisfy the “substantial and immediate danger”
standard. RCW 13.38.160; 25 U.S.C. § 1920. In its disposition decision, the juvenile
court found “[A.T.] is at imminent risk of physical damage or harm and substantial and
immediate danger or threat of such danger should he be returned to [the father’s] care.”
CP at 360. We agree with the Department. 13
The evidence produced during the dependency fact-finding and disposition hearing
justified the juvenile court’s finding that returning A.T. to his father’s care would result
in a substantial and immediate danger to the child. A.T. was in dire condition when he
was removed from his father’s home. He was apparently malnourished, socially and
academically delayed, and had not received adequate medical care in several years.
13 For the same reasons that we agree with the juvenile court that A.T. would face a substantial and immediate threat of danger in his father’s care, we also agree the Department met its burden to show “continued custody” of A.T. by his father was “likely to result in serious emotional or physical damage.” RCW 13.38.130(3); 25 U.S.C. § 1912(e).
25 No. 39603-7-III In re Dependency of A.T.
The lack of medical care was particularly troubling because, without regular treatment,
A.T.’s eye conditions brought a risk of permanent vision loss. Not only had A.T. already
suffered in his father’s care, the father’s paranoia and untreated mental health issues
placed A.T. at imminent risk of physical damage or harm. For instance, the father
removed smoke detectors from the family residence based on his delusion that the
detectors were actually government surveillance devices. This placed A.T. in immediate
peril, especially in light of the father’s testimony that he uses the oven to heat his home.
Based on the record produced at trial, it is apparent that unless the father addresses his
mental health, he will not be able to provide a safe living environment for his son. The
juvenile court’s order authorizing out-of-home placement was justified, the failure to
provide active efforts notwithstanding.
CONCLUSION
We reverse the trial court’s findings as to active efforts but nevertheless affirm
A.T.’s out-of-home placement pursuant to RCW 13.38.160 and 25 U.S.C. § 1920. Going
forward, the Department must do more to engage A.T.’s father in necessary services,
especially mental health services. At any future court hearings involving out-of-home
placement, the Department must show that it has engaged in active efforts as set forth in
this decision. If active efforts have not been met, then A.T. must be returned home unless
26 No. 39603-7-III In re Dependency of A.T.
the Department remains able to prove that the father continues to pose a “substantial and
immediate danger” to A.T. RCW 13.38.160; 25 U.S.C. § 1920.
_________________________________ Pennell, J.
WE CONCUR:
______________________________ _________________________________ Lawrence-Berrey, A.C.J. Staab, J.