FILED May 11, 2023 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In the Matter of the Dependency of ) No. 39095-1-III ) J.R.† ) ) UNPUBLISHED OPINION )
SIDDOWAY, J. — The mother of 7-year-old J.R., a child who is eligible or
potentially eligible for membership in the Cherokee Tribe, appeals an order of
dependency finding J.R. dependent under RCW 13.34.030(6)(c). The mother’s single
assignment of error is to the trial court’s conclusion that the Department of Children,
Youth and Families (the Department) met its burden to prove it had engaged in “active
efforts” to prevent J.R.’s out-of-home placement, as required by the Indian Child Welfare
Act of 19781 (ICWA) and the Washington State Indian Child Welfare Act2 (WICWA).
The Department concedes that substantial evidence does not support the trial
court’s findings and conclusion. We agree, reverse the disposition order, and remand
with directions to immediately return J.R. to a parent’s care unless the court finds that
† To protect the privacy interests of the minor child, we use her initials. Gen. Orders of Division III, In re Changes to Case Title (Wash. Ct. App. Sept. 1, 2018), https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp& ordnumber=2018_001&div=III. 1 25 U.S.C. §§ 1901-1963. 2 Ch. 13.38 RCW. No. 39095-1-III In re Dependency of J.R.
doing so would subject her to a substantial and immediate danger or threat of such
danger.
FACTS AND PROCEDURAL BACKGROUND
On January 25, 2022, Child Protective Services (CPS) received an intake from law
enforcement that they found J.R. living with her grandmother in a van without heat and
with minimal food. J.R. was taken to Sacred Heart Hospital for medical clearance before
being taken to Vanessa Behan Crisis Nursery.
Elizabeth Nielsen, a CPS investigator, was assigned to the intake the next day.
She spoke to J.R.’s mother, who told Ms. Nielsen she had been with J.R. on the morning
of the day J.R. was found in the van, and had left J.R. in the care of a friend while
attending a doctor’s appointment. The mother said her friend allowed the grandmother to
take J.R., not knowing the grandmother was not allowed to watch or take J.R. Ms.
Nielsen was told by others, including J.R., that she had been staying with her
grandmother for at least a week, but the mother’s friend supported the mother’s version
of events.
On January 27, 2022, Ms. Nielsen petitioned to have the court find J.R. dependent
and enter a disposition order. In addressing whether reasonable efforts had been made to
prevent or eliminate the need for removing J.R. from her home, the dependency petition
acknowledged that services had not been offered prior to removal, attributing this to
“[t]he emergent nature of the case.” Clerk’s Papers (CP) at 4.
2 No. 39095-1-III In re Dependency of J.R.
Ms. Nielsen spoke with the individual whom the mother says and the Department
believes is J.R.’s father. He is not identified by J.R.’s birth certificate and the record on
appeal does not indicate that paternity has been established. He told Ms. Nielsen he had
not been involved much in J.R.’s life.
Ms. Nielsen had become aware that a number of prior CPS intakes reported
substance abuse by the mother, but they had been screened out without founded findings.
According to Ms. Nielsen, the alleged father affirmed that the mother had “been known
to have some drug abuse issues.” Rep. of Proc. (RP) at 20. On the basis of concerns
about the mother’s possible drug use, J.R. was ordered placed with her alleged father as a
suitable “other placement” at that time. CP at 43.
On February 3, 2022, it was determined that based on the alleged father’s report of
Native American ancestry there was reason to know J.R. is an Indian child.
A contested shelter care hearing as to the mother was held on February 4, 2022. It
was determined that J.R. had no parent, guardian, or legal custodian to provide for her
supervision and care. The alleged father was identified as the “suitable other” with
whom J.R. would remain placed. CP at 69. The shelter care order identified the services
that were offered and agreed to by the mother as random UAs3, an evidence-based
parenting program, and gas vouchers.
3 Urinalysis.
3 No. 39095-1-III In re Dependency of J.R.
Shortly thereafter, the Department learned that a UA provided by the alleged
father on January 31, 2022, had tested positive for methamphetamine and amphetamine.
It moved for a change of placement. In a declaration filed in support of the changed
placement, Ms. Nielsen explained that concerns about ongoing substance use by the
mother remained. The mother had “no showed” for UA testing on January 27 and 28,
2022. During the shelter care hearing on February 4, which was held at 11 a.m., the
mother reportedly said she would be going to complete a UA once the hearing was over,
but she inexplicably appeared at the testing facility at 5:53 p.m., which was too late. She
had previously been told she should try to arrive before 5:30 p.m. and clients were not
accepted for testing after 5:45 p.m.
On February 11, 2022, the trial court heard the motion for changed placement.
The alleged father admitted that he had lied to the CPS investigator about his last drug
use, concerned that J.R. would not be placed with him. J.R. was ordered placed with the
Department in a licensed foster placement. She was later removed from foster care after
she was observed to have unexplained bruising.
Appointment of a social worker and efforts at remedial services and rehabilitative programs
Zadia Short, the first social worker assigned to the mother’s and father’s
dependency cases, was not assigned until February 22, 2022, almost a month after J.R.
was removed from the mother’s care. It was not until over four months later, on July 8,
4 No. 39095-1-III In re Dependency of J.R.
that the mother’s contested dependency and disposition hearing was held.4 Testimony at
the July 8 hearing revealed that the mother’s communication with Ms. Short and
participation in services had been poor and that the Department’s own efforts had been
less than “active.”
February and March
A week after J.R. was removed from her mother’s care, the mother was evicted
and became homeless. The Department did not help her locate housing; Ms. Short
testified, “We don’t typically help our clients with housing.” RP at 102.
Ms. Short was responsible for arranging visitation for the mother after the shelter
care hearing. She acknowledged that the mother missed many visits. She testified that as
of the hearing, she had made eight referrals for visitation services “due to the lack of [the
mother’s], like, engagement, I guess poor attendance.” RP at 89-90. According to notes
to which Ms. Short referred during the hearing, the mother had been scheduled for three
visits in February and missed two.
In mid-March 2022, the Department moved the court to place J.R. in relative care
with a maternal aunt who lives in Puyallup. The parents agreed, despite the impact it
would have on visitation. They reportedly understood and agreed that they would have
visitation once a week. The placement was approved by the court, which ordered that the
4 The father had stipulated to an order of dependency and order of disposition in mid-April.
5 No. 39095-1-III In re Dependency of J.R.
parents would have one weekend visit per week at the maternal aunt’s home, lasting up to
three hours, and that the Department would provide gas vouchers and hotel
accommodations for the parents for one night. The court also ordered two supervised
phone/Zoom visits with J.R. during the week for up to 2 hours each.
April, May, June and early July
Ms. Short testified that from April through May, the mother attended 12 visits
with J.R. and missed 7.
On her own, the mother obtained a chemical assessment from Pioneer Services
and a referral to engage in long-term, inpatient substance use treatment at Isabella House
beginning on May 11. She explained at trial that “[m]ultiple people” told her that
qualifying for the inpatient program at Isabella House was “a really good program to get
your kids back.” RP at 42-43. Sharon Jackson, a substance abuse disorder professional
and counselor with Isabella House, testified at the hearing that Isabella House offers 3.3
level treatment—long-term in-patient care at which a parent can be accompanied by and
continue to parent a child—which is what Pioneer had recommended for the mother.
According to Ms. Jackson, the mother admitted during her intake to
methamphetamine use. At the fact-finding hearing, however, the mother denied any
current drug use. She said she “[didn’t] believe” she had told personnel at Pioneer that
she was using illegal drugs; she claimed she “told them of [her] history in the past” in
order to obtain a referral to Isabella House. RP at 43.
6 No. 39095-1-III In re Dependency of J.R.
Ms. Jackson testified that the mother was discharged from Isabella House within
two days, on May 13. She was discharged for failing to comply with the dosage
requirements of her prescriptions. According to Ms. Jackson, while the mother had been
given a special dispensation to use prescribed benzodiazepines from which she was
allegedly tapering off,5 she was discharged after she self-administered more than the
permitted dosage. The mother blamed her discharge from Isabella House on a
misunderstanding about her medication plan.
No other efforts were made to engage the mother with treatment.
A referral of the mother to an evidence-based parenting program was not made
until sometime in May. As of the July fact-finding hearing she had not yet started the
program, but she had been contacted by a provider. Asked why it had taken that long to
make the referral, Ms. Short testified that the mother “was pretty slow to engage,” and
“hard to connect with.” RP at 105-06.
A problem with the mother’s visitation in Puyallup arose after the first couple of
visits, when the mother’s aunt, who had agreed to supervise, changed her mind and
agreed to supervise only one more visit. In June, according to Ms. Short, the mother had
only one in-person visit with J.R. From May to June, she had 15 scheduled Zoom visits,
but only made 2 of them and missed 12.
5 Benzodiazepines were generally not permitted at all at Isabella House.
7 No. 39095-1-III In re Dependency of J.R.
The Department made visit referrals to agencies in the Puyallup area. One agency
picked up the referral but dropped it after being unable to contact the mother. At the time
of the July 8 hearing, Ms. Short testified that a second agency had picked up the referral
and she believed arrangements were being made for the mother to do an intake for the
service.
The mother admitted she had missed visitation with J.R., but testified that her
understanding of the reason visitation had been cancelled was because J.R. was saying
she did not want to visit. She testified that at the recent shared planning meeting, it was
agreed that doing or not doing the visits should not be J.R.’s choice.
Between Ms. Short’s assignment to the dependency cases in February and the
contested hearing in July, Ms. Short testified there had been one shared planning meeting
or permanency planning meeting. Ms. Short admitted that in this mother’s case, it would
be most helpful for her to have such a meeting once a month.
Despite repeatedly attributing the mother’s lack of engagement and progress to the
mother’s periodically being without a phone, Ms. Short acknowledged that she had never
offered to provide the mother with a phone, explaining that “[s]he appeared to be able to
connect with me with different phone numbers. It somehow seemed that she was able to
get a phone.” RP at 108. Ms. Short admitted that communication would have been more
consistent if the Department had been able to provide the mother with a working phone
with available minutes.
8 No. 39095-1-III In re Dependency of J.R.
Ms. Short testified that the mother had no-showed for almost all of her UAs. She
testified the Department received test results for only a couple of UAs from the mother:
one, that tested negative, and another for which they received conflicting test results. The
conflicting results both tested positive for a benzodiazepine, but one result indicated that
it was a medication prescribed for the mother and the other indicated that it was an
unprescribed medication. Ms. Short could not explain the discrepancy. RP at 111. The
mother admitted learning from her lawyer on the day of the fact-finding hearing that she
had missed UAs by failing to call in daily, but claimed she was sometimes unable to call.
To assist with transportation, Ms. Short testified that she offered the mother gas
vouchers monthly but was aware that many of the vouchers went unused because the
mother never picked them up. The mother testified she had been provided with only four
$50 gas vouchers over the five-plus months of the dependency, not because she failed to
pick them up, but because “I’ve asked Dottie multiple times and she—didn’t respond. I
kind of gave up on it.” RP at 52. The mother also testified that gas vouchers were no
longer doing her much good, explaining, “[I] don’t have a vehicle right now.” RP at 70.
Ms. Short said she had been unaware that the mother’s car was not in working
order until the most recent review hearing. She acknowledged that she had not attempted
to help the mother with transportation to make visits thereafter, but “we can once she gets
a visit confirmed.” RP at 109.
9 No. 39095-1-III In re Dependency of J.R.
In closing argument at the fact-finding hearing, the Department’s lawyer asserted
the Department had “done its best to try to engage [the mother] in services,” but these
efforts were impeded by the mother’s communication barriers and distrust of the
Department. RP at 124-25. The mother responded that the Department failed to make
efforts to overcome these barriers and did not meet its burden under ICWA and WICWA
to provide active efforts.
In orally ruling at the end of the hearing, the commissioner stated that the mother
faced many challenges with housing, transportation, and communication over the course
of the dependency but, on the issue of active efforts, stated, “I do find that there’s been
active efforts—by the department in trying to make referrals. Could there be more
efforts? Yes. Could there be more efforts from [the mother]? Yes.” RP at 144. In its
written order, the court found:
8. The Department has made active efforts in this case regarding referrals, but there could be more effort. The child was placed with a maternal aunt at the parents’ request on the west side of the state on 1/25/22. The mother was evicted about a week after the dependency petition was filed and has had difficulty communicating because of issues with her phone and her car. There are several barriers and challenges present for the mother regarding communication, stable housing, and transportation.
CP at 169. The court went on to check the boxes on the form disposition order that active
efforts had been made by providing “specific services . . . outlined in the Dependency
Petition and subsequent documents” that it “incorporated by reference.” CP at 170.
10 No. 39095-1-III In re Dependency of J.R.
The court concluded J.R. was dependent under RCW 13.34.030(6)(c) and the
requirements of ICWA and WICWA were met. The court ordered J.R. to remain placed
with her aunt under Department supervision. The mother appeals.
ANALYSIS
The mother’s single assignment of error is to the trial court’s conclusion that the
Department proved it had engaged in active efforts to prevent out-of-home placement of
J.R., as required by ICWA and WICWA.
ICWA was enacted by Congress “in response to a lengthy and concerted effort by
tribal leaders who sought to end the wholesale removal of Indian children from their
families by state and private agencies.” In re Dependency of Z.J.G., 196 Wn.2d 152, 164,
471 P.3d 853 (2020). ICWA aims to protect the sovereignty and future prosperity of
tribes by setting minimum federal standards for the removal of Indian children from their
families. Id. at 182-83; 25 U.S.C. §§ 1901, 1902. Among them is a requirement that a
party seeking an involuntary foster care placement of an Indian child 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.” 25 U.S.C. § 1912(d); RCW 13.38.130(1).
WICWA was enacted in 2011. LAWS OF 2011, ch. 309, §§ 1-20. Like other state
statutes paralleling ICWA, it can serve to clarify ICWA or add protections, and was
meant to strengthen Washington’s enforcement of the fundamental protections that
11 No. 39095-1-III In re Dependency of J.R.
ICWA guarantees to an Indian child, their parents, and their tribes. Z.J.G., 196 Wn.2d
at 171.
Whether the Department has satisfied the “active efforts” requirement presents a
mixed question of law and fact. In re Dependency of G.J.A., 197 Wn.2d 868, 887, 489
P.3d 631 (2021) (internal quotation marks omitted). The trial court’s factual findings are
reviewed for substantial evidence. Washington courts have held that the standard of
proof required to demonstrate active efforts is clear, cogent, and convincing evidence. In
re Parental Rights to D.J.S., 12 Wn. App. 2d 1, 28, 456 P.3d 820 (2020), abrogated on
other grounds by G.J.A., 197 Wn.2d 868; In re Dependency of A.M., 106 Wn. App. 123,
134-35, 22 P.3d 828 (2001). The legal question of whether the Department made active
efforts compliant with ICWA and WICWA is reviewed de novo. G.J.A., 197 Wn.2d at
887.
ICWA does not define “active efforts,” but federal regulations implementing the
law instruct that “active efforts” must be “affirmative, active, thorough, and timely.”
25 C.F.R. § 23.2. Where an agency like the Department is involved in the child-custody
proceeding, “active efforts must involve assisting the parent or parents or Indian
custodian through the steps of a case plan and with accessing or developing the resources
necessary to satisfy the case plan.” Id. Active efforts “are to be tailored to the facts and
circumstances of the case.” Id.
12 No. 39095-1-III In re Dependency of J.R.
The Department “cannot simply provide a referral and leave the parent to engage
with providers and complete services on their own.” G.J.A., 197 Wn.2d at 891-92 (citing
RCW 13.38.040(1)(a) (requiring the Department to prove that it has “actively worked
with the parent . . . to engage them in remedial services and rehabilitative programs . . .
beyond simply providing referrals to such services”) (first alteration in original) (quoting
G.J.A., 197 Wn.2d at 894)). The Department does not engage in active efforts by simply
meeting with a parent, reviewing services, and providing instructions on how to obtain a
phone, housing, and counseling. Id. at 892 (citing D.J.S., 12 Wn. App. 2d at 36-37).
Examples of active efforts include, but are not limited to identifying appropriate services
and helping parents to overcome barriers, supporting regular visits, identifying
community resources and actively assisting the parents to utilize those resources. Id.
In In re of Dependency of A.L.K., 196 Wn.2d 686, 696-97, 478 P.3d 63 (2020), our
Supreme Court held that a parent who denies needing services and declines drug testing
does not lose the right to challenge the Department’s failure to provide services by
inviting error; the invited error doctrine does not apply, because it would be contrary to
the goal of reunification. In G.J.A., the court held that the futility doctrine likewise does
not apply, since ICWA and WICWA require the Department to prove that it made
sufficient efforts and its efforts “‘have proved unsuccessful.’” 197 Wn.2d at 875
(quoting 25 U.S.C. § 1912(d) and RCW 13.38.130(1)).
13 No. 39095-1-III In re Dependency of J.R.
The Department must document its provision of active efforts in the record,
including by retaining information on “[d]ates, persons contacted, and other details
evidencing how [it] provided active efforts,” and “[r]esults of the active efforts provided
and, where the results were less than satisfactory, whether [it] adjusted the active efforts
to better address the issues.” G.J.A., 197 Wn.2d at 893 (citing BUREAU OF INDIAN
AFFAIRS, U.S. DEP’T OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD
WELFARE ACT6 43, 44 (2016); 25 C.F.R. § 23.120(b)).
In the factual and procedural background, we summarized the Department’s
evidence of its actions during the more than five months before the fact-finding hearing.
Given the legal standards and burden of proof that apply, little need be said to explain
why the Department concedes, and we concur, that it failed to demonstrate active efforts
at the fact-finding hearing. The only active effort found by the court was providing
referrals, which is insufficient as a matter of law. There was no showing that the
Department was heeding the mother’s failures to engage and responding with thoughtful
adjustments to its efforts.
The remedy, where an Indian child has been improperly removed from the custody
of a parent in a state court custody proceeding, is to affirm the dependency order, vacate
the disposition order’s out-of-home placement, and remand for a determination of
6 Https://www.indianaffairs.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2- 056831.pdf [https://perma.cc/3AJ5-PBCA].
14 No. 39095-1-III In re Dependency of J.R.
whether returning the child to the parent would subject the child to substantial and
immediate danger or threat of danger. A.L.K., 196 Wn.2d at 703; 25 U.S.C. § 1920;
RCW 13.38.160.
We reverse the disposition order and remand with directions to immediately
return J.R. to a parent’s care unless the court finds that doing so would subject her to a
substantial and immediate danger or threat of such danger.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, J.
WE CONCUR:
Lawrence-Berrey, A.C.J.
Staab, J.