FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE JUNE 24, 2021
SUPREME COURT, STATE OF WASHINGTON
JUNE 24, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) No. 98554-5
In the Matter of the Dependency of )
) EN BANC
G.J.A., A.R.A., S.S.A., )
J.J.A., and V.A., )
) Filed: June 24, 2021
Minor children. )
______________________________ )
MONTOYA-LEWIS, J.—In 1978, Congress found “that there is no resource
that is more vital to the continued existence and integrity of Indian tribes than their
children” and “that the States . . . have often failed to recognize the essential tribal
relations of Indian people and the cultural and social standards prevailing in Indian
communities and families.” 1 25 U.S.C. § 1901(3), (5). Through the Indian Child
Welfare Act (ICWA), enacted by Congress in 1978, state courts and agencies are
required to use “active efforts” to prevent the breakup of the Indian family. 25 U.S.C.
§ 1912(d). In 2016, the United States Department of the Interior, through the Bureau
1
We use the term “Indian” when referring to the statutory language contained in the Indian
Child Welfare Act and Washington State Indian Child Welfare Act that uses that term. In all other
areas, we use the term “Native.”
In re Dependency of G.J.A., A.R.A., S.S.A., J.J.A., and V.A.
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of Indian Affairs (BIA), issued regulations stating, in part, that “[a]ctive efforts
means affirmative, active, thorough, and timely efforts.” 25 C.F.R. § 23.2 (second
emphasis added).
In 2020, in McGirt v. Oklahoma, Justice Gorsuch wrote on behalf of the
United States Supreme Court, “On the far end of the Trail of Tears was a promise.”
___ U.S. ___, 140 S. Ct. 2452, 2459, 207 L. Ed. 2d 985 (2020). That promise
included the assurance of land for those tribes forcibly removed from their
homelands to resettle, in community, with their traditions, customs, languages, and
families intact. Id. While McGirt analyzes the importance of treaties with respect to
land, its commitment to holding us to our promises instructs us in this case, which
has at its core the promise to keep Indian families intact and to do so affirmatively.
However, the systemic destruction of Indian families persists to this day, despite the
promises and statutory frameworks set out in ICWA and its state counterparts. For
example, in Whatcom County, where Native people make up 3.4 percent of the
county’s population, 2 Native children make up 16 percent of children in state
dependencies. 3 Similar disproportionality exists throughout the state, even with the
2
QuickFacts, Whatcom County, Washington, U.S. CENSUS BUREAU,
https://www.census.gov/quickfacts/fact/table/whatcomcountywashington/PST045219
[https://perma.cc/S4QB-H6XY].
3
WASH. STATE CTR. FOR COURT RESEARCH, DEPENDENT CHILDREN IN WASHINGTON
STATE: CASE TIMELINES AND OUTCOMES 2020 REPORT C-151 (2021),
https://www.courts.wa.gov/subsite/wsccr/docs/2020DTR.pdf [https://perma.cc/PZ6Z-52ZP]
(Whatcom County Outcomes & Demographics). Note that while the report shows that 16 percent
2
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ongoing training and work by the Department of Children, Youth, and Families
(Department) to reduce this disproportionality. To quote Lummi Nation tribal
member and former chairman Darrell Hillaire, “What about those promises?”4
Through the passage of ICWA and the Washington State Indian Child Welfare
Act (WICWA), Congress and the Washington State Legislature intended to redress
our nation’s long-standing and widespread abusive practice of removing Native
children from their families and destroying Native communities. 25 U.S.C. §§ 1901-
1963; ch. 13.38 RCW. Among their many requirements, ICWA and WICWA
mandate that the State provide “active efforts” to prevent the breakup of Indian
families. 25 U.S.C. § 1912(d); RCW 13.38.130. Active efforts must be thorough,
timely, consistent, and culturally appropriate. 25 C.F.R. § 23.2; RCW
13.38.040(1)(a). The “active efforts” requirement is distinct from the “reasonable
efforts” requirement in non-Indian child custody cases because it requires both a
higher level of engagement from the Department and culturally appropriate services.
To ensure that the Department meets the minimum requirements of ICWA and
WICWA, every dependency court that oversees cases involving Indian families has
the responsibility to evaluate the Department’s actions. WICWA requires the court
of children in dependencies in Whatcom County are Native, another 11 percent are identified by
the State as multiracial American Indian/Alaskan Native. Id.
4
Children of the Setting Sun Productions, What About Those Promises?, YOUTUBE (Aug.
11, 2016), https://www.youtube.com/watch?v=vXTGMn5ytl4 [https://perma.cc/4M9X-DJKR]
(play by Darrell Hillaire).
3
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to conduct this evaluation at every hearing when the Indian child is placed out of the
home, and the BIA recommends this at every hearing. RCW 13.38.040(1)(a)(ii);
BUREAU OF INDIAN AFFAIRS, U.S. DEP’T OF INTERIOR, GUIDELINES FOR
IMPLEMENTING THE INDIAN CHILD WELFARE ACT 43 (2016) (hereinafter BIA
GUIDELINES). If the Department’s actions fall below ICWA and WICWA standards,
the court must order the Department to do more to comply with its statutorily
imposed obligations before the case can proceed to termination.
ICWA and WICWA do not permit the application of the futility doctrine. The
Department is not excused from providing active efforts unless it can demonstrate
to the court it has made sufficient efforts and those efforts “have proved
unsuccessful.” 25 U.S.C. § 1912(d); RCW 13.38.130(1). The Department has the
burden to provide active efforts, and it also has the burden to prove that those efforts
were in fact unsuccessful before the matter can proceed to termination. A parent’s
action, inconsistency, or inaction does not excuse the Department from providing
active efforts.
At issue in this case is whether the Department met its burden to provide active
efforts to reunify C.A. with her children. We hold that the Department failed to
provide active efforts when it provided untimely referrals and only passively
engaged with C.A. from January through June 2019. We also hold that the
dependency court impermissibly applied the futility doctrine when it speculated that
4
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even had the Department acted more diligently, C.A. would not have been
responsive. Therefore, we reverse the dependency court’s finding that the
Department satisfied the active efforts requirement from January through June 2019.
We remand and direct the dependency court to order the Department to provide
active efforts in accordance with this opinion before the court may proceed to hear
the filed termination of parental rights petitions.
I. FACTS AND PROCEDURAL HISTORY
C.A. is the mother of G.J.A., A.R.A., S.S.A., J.J.A., and V.A. All five children
are affiliated with the Blackfeet Nation, and they are all Indian children for the
purposes of ICWA and WICWA. In 2017, the dependency court found all five
children dependent and removed them from C.A.’s care. The court identified C.A.’s
parental deficiencies as “[s]ubstance abuse, mental health, parenting deficits caused
in part by substance abuse and untreated mental health, inadequate supervision,
maintains unhealthy relationships, [and] parenting skills to meet the needs of all the
children.” Clerk’s Papers (CP) at 4. The court ordered the Department to provide the
following services to C.A. to address those parental deficiencies: a parenting
assessment, family therapy, a chemical dependency assessment, mental health
treatment, pain management, and domestic violence services. The dependency court
also ordered the Department to provide visitation and established a visitation
schedule. The Blackfeet Nation intervened.
5
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C.A. asked the dependency court to find that the Department failed to provide
active efforts from January through June 2019.5
The Department filed termination petitions for all five children on January 16,
2019. Jocelyn Seifert was the Department social worker who had been assigned to
C.A.’s family’s case in October 2018. She was based in Spokane, more than a two-
hour drive from C.A. and her children, who were all located in the Tri-Cities. 6 On
January 29, 2019, Seifert made her first attempt to contact C.A. since being assigned
to the case when she tried to serve C.A. with the termination petitions. Seifert sent
C.A. an e-mail and a text message, and she drove to the Tri-Cities to try to find C.A.
but was unable to locate her. C.A. was in the hospital at the time, but she called
Seifert back two days later on January 31, and they had their first conversation over
the phone. C.A. explained she was doing well and asked for visitation to be arranged
so she could see her children. They discussed the status of her court-ordered services,
and Seifert assured C.A. that she would review them and get back to her. 7
5
C.A. acknowledged that she “hit rock bottom” and did not participate in services for a
period in 2018. CP at 30. However, this appeal is concerned only with the specific time frame of
January through June 2019. C.A. does not challenge the Department’s efforts or the court’s
findings outside this time period. Therefore, her failure to participate in services in 2018 is not
relevant here.
6
The children were initially placed in three separate placements in three separate cities—
the two oldest in foster placement in Spokane, the third oldest in foster placement in Mesa, and
the two youngest with their maternal grandfather in the Tri-Cities. In 2019, the three older children
were moved to foster placements in the Tri-Cities so they could be near their siblings. There is
nothing in the record to indicate whether any of the foster placements were Native or whether the
Department made any efforts to find Native placements.
7
At this point in the dependency, C.A. had completed a number of court-ordered services
on her own without any referrals or assistance from the Department. She completed two chemical
6
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The next day, they briefly spoke over the phone again. Seifert arranged gas
vouchers for C.A. to drive to Spokane and meet with Seifert. When C.A. picked up
the gas vouchers at a Department office in the Tri-Cities, she was served with the
termination petitions. Before she was scheduled to drive to Spokane, C.A. learned
that Seifert had discussed an incident between C.A. and the children’s father with a
person C.A. was working for. C.A. felt that Seifert had betrayed her confidentiality
by discussing her personal matters with someone else; she felt she could not trust
Seifert and stated she no longer wished to speak with her. She did not travel to
Spokane to meet with Seifert as they had planned, and—aside from one phone call
attempt—Seifert did not try to contact C.A. again for over two months.
After this incident, C.A. communicated with Seifert primarily through her
attorney. In early February, C.A.’s attorney e-mailed Seifert to again request
visitations on C.A.’s behalf. Seifert did not respond, so C.A.’s attorney sent a follow-
up e-mail the next week. When Seifert finally responded, she refused to set up
visitations, saying, “There is not a visit referral at this time. We can discuss at court.”
CP at 38. She explained she would not set up visitations because of C.A.’s lack of
engagement in late 20188 and because she was concerned that the visits with C.A.
dependency assessments and was on track to begin treatment. She also located a mental health
provider on her own and was engaged in that service. She was also working with a pain
management clinic to receive treatment, and she was working to access domestic violence services
through her mental health provider.
8
See supra note 5.
7
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would harm the children. She said, “It’s a delicate situation since we’re going into a
termination.” Id. C.A.’s attorney pointed out that visitation was a court-ordered
service and, absent a court order stating otherwise, the Department was required to
provide it. A week later, an attorney for the Department responded to propose
therapeutic visitations, meaning C.A.’s visits with her children would take place with
a family therapist present. C.A.’s attorney pointed out that the Department had all
the power, leaving C.A. with no choice—either she agree to the Department’s
proposal or she would not be allowed to see her children. When C.A.’s attorney
expressed C.A.’s frustration that the Department was refusing to set up visits, Seifert
stated, “It should also be noted that [C.A.] hasn’t returned my calls. The last thing I
heard from her is that she will not talk to me anymore.” Id. at 88.
On March 7, 2019, the dependency court held a review hearing. C.A.
acknowledged that she did not always have a working cell phone and this made
communication more difficult, but she was doing all that she could to remain in
contact.9 The court reviewed the court-ordered services and noted that the
9
At this time, C.A. had two primary phone numbers on file with the Department and her
attorney—one was her mother’s landline and the other was a cell phone that had limited
functionality. C.A. asked Seifert to use the landline at her mother’s house as her primary phone
number because that was where C.A. lived during this time frame. If she was not home or if there
was no answer, C.A. requested that Seifert leave a message. She also asked Seifert not to call the
landline before noon due to her stepfather’s work schedule. C.A. asked Seifert to list the landline
on service referrals because it was her most reliable phone number. C.A.’s cell phone worked only
when she was connected to Wi-Fi. C.A. had limited funds for phone calls on her cell phone, but
she could check e-mails and texts when she was connected to Wi-Fi.
8
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Department needed to schedule visitations as well as provide referrals for family
therapy and for a parenting assessment. The Department also filed a motion to
modify visitations to a therapeutic setting. The court granted C.A.’s request for more
time to respond to the Department’s motion, but it temporarily ordered therapeutic
visitations in the interim. That same day, Seifert confirmed C.A.’s contact
information with C.A.’s attorney.
The day after the March hearing, Seifert located a family therapy provider and
prepared a referral for family therapy, but she did not submit the form. Even though
she had confirmed C.A.’s contact information with her attorney, Seifert was
concerned that her contact information was unreliable and C.A. would not be
responsive. She explained, “[U]nreachable clients create a significant burden on [the
provider’s] scheduling and staff resources.” Id. at 54. She did not communicate this
reason for withholding the referral to C.A. or her attorney.
In April 2019, C.A. was stranded in Spokane and needed assistance getting
into a detox program, so she contacted Seifert for help. Seifert and another social
worker drove to meet C.A. This was Seifert’s only in-person meeting with C.A.
during the entire time frame at issue in this case.
Seifert apparently did not refer C.A. to any detox facilities but simply
provided her with gift cards for food and a list of local resources. C.A. asked for a
ride, but Seifert declined, citing safety concerns. Over the following week, without
9
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any assistance from Seifert, C.A. admitted herself into the hospital and completed a
detox program. When she was released from the detox program, C.A. contacted
Seifert for assistance finding a sober living facility. Seifert e-mailed and texted C.A.
a list of housing options and a bus ticket back to the Tri-Cities. C.A. obtained a spot
in a sober living facility but moved out after a few days because she was unable to
afford rent. She also stated the environment was triggering and overwhelming
because she had history with some of the other women in the house. To protect her
safety and avoid a relapse, C.A. moved back in with her mother, who also lived in
the Tri-Cities.
Seifert finally submitted the referral for family therapy on May 30, 2019—
four months after they first spoke and C.A. had requested referrals. C.A.’s first
session with the therapist occurred without the children. The provider informed C.A.
that he did not usually work in family therapy. He also stated he would schedule
therapy with only one child at a time for each weekly session, meaning C.A. would
be able to engage in family therapy with each of her children only once every five
weeks, at most. Nothing in the record suggests that this service was ever provided
by a qualified family therapist. Nothing in the record indicates that this provider
worked with Native children and families.
On June 6, 2019, the dependency court held a permanency planning hearing.
C.A.’s attorney acknowledged C.A.’s difficulty communicating with Seifert, whose
10
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office was located over two hours away. 10 Despite the barriers to regular means of
communication, Seifert claimed she had had “consistent communication” with C.A.
Verbatim Report of Proceedings (VRP) (June 6, 2019) at 33. The court again noted
that C.A. had requested visitations but that the Department had not scheduled any.
It also acknowledged that C.A. still needed a referral for a parenting assessment. In
light of the pending termination hearing, the dependency court also advised C.A. to
send daily e-mails to her attorney and Seifert to keep them apprised of her progress
and needs. C.A. followed the court’s suggestion and diligently sent daily e-mails to
her attorney and Seifert. If she missed a day, she sent an e-mail the following day
with an apology and a new update.
Seifert submitted the referral for a parenting assessment after the June hearing.
Nothing in the record indicates if or when the parenting assessment ever occurred or
whether it was performed by a qualified professional. Nothing in the record indicates
that the provider worked with Native children and families.
10
Seifert and C.A. lived hours apart and did not have any regular, in-person interactions.
Their only in-person meeting occurred in April, when C.A. was in Spokane and contacted Seifert
for assistance. C.A.’s primary phone numbers have remained the same throughout this time frame.
Despite C.A.’s requests, Seifert at times called C.A.’s mother’s landline before noon, called
without leaving a message, or sent a text message to the landline. See supra note 9.
Aware that reliable methods of communication were a challenge, C.A. updated Seifert
whenever she had new contact information. When she was able to use the children’s father’s cell
phone, she contacted Seifert to provide her with that number as another method of communication.
When C.A. eventually got a new cell phone, she also provided that number to Seifert, though she
said it had poor service. Despite the fact that C.A. had multiple contact numbers, Seifert would
call or text only one of these numbers at a time, and she did not always leave a message.
C.A. also had an e-mail address that did not change throughout this time frame. Her
attorney confirmed this was their main method of communication.
11
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C.A. filed a declaration to respond to the Department’s motion to modify
visitation on June 18, 2019. She stated she had been consistently engaged and
requesting referrals since January 2019. She described at length her efforts to
communicate with Seifert and explained that despite C.A.’s many requests, Seifert
failed to make timely referrals for court-ordered services. She also explained how,
even after many months of C.A. consistently requesting visitation, the Department
still had not arranged any visits. C.A. requested the court find that the Department
failed to provide active efforts to prevent the breakup of the Indian family under
ICWA and WICWA.
On June 20, 2019, the dependency court held a hearing on the Department’s
motion to modify visitations to a therapeutic setting. It also considered C.A.’s
declaration and request for a finding of lack of active efforts. The court noted that
even though it had ordered therapeutic visitations in March, the Department still had
not set up any visitations, therapeutic or otherwise. It also acknowledged the barriers
to reliable communication and suggested the Department assist C.A. in obtaining a
reliable, working phone. 11 The court ultimately affirmed the order amending
visitations to occur in a therapeutic setting. The Department requested time to
respond to C.A.’s declaration on the active efforts issue, which the court granted. At
11
Nothing in the record suggests that the Department did anything to help C.A. obtain a
working cell phone.
12
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the hearing, Seifert again confirmed C.A.’s contact information. The next day, a
different social worker for the Department submitted the referral for therapeutic
visitations.
The family’s first therapeutic visitation took place on July 10, 2019—over
five months after Seifert and C.A. first spoke and C.A. had requested visitation. The
professional who supervised the visit stated that he did not usually conduct
therapeutic family visitation but explained he was temporarily filling in for the usual
family therapist. Nothing in the record suggests that visitations were ever supervised
by a qualified family therapist. Nothing in the record indicates that this provider
worked with Native children and families.
Seifert filed a declaration in response to C.A.’s declaration regarding active
efforts, where she detailed her efforts to communicate with C.A. and argued that the
reason she delayed referrals was C.A.’s lack of consistent means of communication.
Seifert stated, “The biggest barrier was [C.A.’s] ever-changing needs and lack of
consistent contact information.” CP at 64. She also argued that “[C.A.] also must
bear responsibility” for their communication difficulties. Id. at 65. C.A. filed a
declaration to reply to those assertions.
On August 1, 2019, the court held a hearing on the issue of whether the
Department provided active efforts. C.A. argued that the Department failed to
engage in active efforts to prevent the breakup of the Indian family as required by
13
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ICWA and WICWA. Active efforts, she argued, require more than simply providing
referrals. She pointed out that several months had passed—with multiple hearings
and court orders directing the Department to make referrals for court-ordered
services—before the Department submitted those referrals. She argued that these
untimely referrals and delayed visitations fell below the active efforts standard. She
also argued that Seifert’s inconsistent efforts to communicate with C.A. also fell
below active efforts.
The Department admitted that Seifert’s efforts were not “perfect” but argued
that they met the active efforts standard. VRP (Aug. 1, 2019) at 83. It urged the
dependency court to examine the entire scope of the dependency, as well as a
previous dependency. It relied on Seifert’s detailed communication log to argue that
C.A. was not always responsive, and it also pointed out that C.A. had refused to
speak with Seifert at one point in February 2019. The Department argued that C.A.
and Seifert’s inconsistent communication was the reason for the delay in referrals.
It noted that Seifert admitted she could have done things differently, such as
submitting the referral for family therapy in March or attempting to reach C.A. by
calling and texting multiple numbers at a time. However, the Department argued,
“[T]here’s plenty of reason to believe that the phone was not going to be answered,”
even if Seifert tried multiple numbers. Id. at 87.
14
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The dependency court found that “from January 2019 to June 2019, the
Department has provided active efforts to assist this family under ICWA and
WICWA.” CP at 164. In its written order, the court stated the “analysis of whether
active efforts have been made is not solely focused on whether service referrals have
been made.” Id. However, the court was “not convinced anything would have come
from the social worker clicking ‘submit’ on the family therapy referral she prepared
in March[ ] 2019,” believing that doing so would “knowingly set[] up the mother for
likely failure.” Id. at 164, 165. Still, the court stated that the reasons for not
submitting referrals should have been communicated to C.A. The court also
concluded that it “is not the court’s role” to “critique how social workers could do
better in every case.” Id. at 165.
C.A. appealed the dependency court’s order. The Court of Appeals denied her
motion for discretionary review and denied her motion to modify that decision. The
Supreme Court commissioner also denied her motion for discretionary review. We
granted her motion to modify that ruling and granted review.12
12
Four amici curiae briefs were filed in support of C.A. by the following organizations:
Washington Defender Association and Fred T. Korematsu Center for Law and Equality; the
National Indian Child Welfare Association, National Indian Justice Center, and Northwest Justice
Project; University of Washington Tribal Court Public Defense Clinic and Legal Counsel for
Youth and Children; and the ICWA Law Center and the Indian Law Clinic at Michigan State
University College of Law.
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II. ANALYSIS
A. Background of ICWA and WICWA
Since the founding of this nation and up through the early 1970s, the federal
and state governments faced what they termed “the Indian problem.” 13 They
answered that issue with various policies that ranged from the genocide of Native
people to the oft-stated educational practices of “Kill the Indian, and Save the
Man”14 through assimilationist and tribal termination policies. It was not until the
early 1970s when then President Nixon announced a shift in federal policy toward
government relationships with tribes and recognition of the critical importance of
tribal sovereignty and tribal self-governance. By that time, the damage caused by the
practice of removing Indian children from their families and tribes had been done—
as we discussed in In re Dependency of Z.J.G., in some states as many as a third of
Native children had been removed from their families and communities. 196 Wn.2d
13
The concept of the so-called “Indian problem” dominated early government policies and
attitudes. See Nelson A. Miles, The Indian Problem, 128 N. AM. REV. 304 (1879); see also LEWIS
MERIAM, INST. FOR GOV’T RESEARCH, THE PROBLEM OF INDIAN ADMINISTRATION (1928) (report
commissioned by the Sec’y of the Interior); Karen M. Tani, States’ Rights, Welfare Rights, and
the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935-1954, 33 L. & HIST. REV.
1 (2015). For other references to the “Indian problem” in the press, see Robert G. Hays, A RACE
AT BAY: NEW YORK TIMES EDITORIALS ON “THE INDIAN PROBLEM,” 1860-1900 (1997).
14
Title of Captain Richard H. Pratt’s 1892 speech to George Mason University in which
he laid out his plan for educating Native children in residential boarding schools, a policy the
federal government adopted and carried out from the 1890s through the 1950s. “Kill the Indian,
and Save the Man”: Capt. Richard H. Pratt on the Education of Native Americans, CARLISLE
INDIAN SCH. DIGITAL RESOURCE CTR., http://carlisleindian.dickinson.edu/teach/kill-indian-and-
save-man-capt-richard-h-pratt-education-native-americans [https://perma.cc/3QTG-X3HZ].
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152, 165, 471 P.3d 853 (2020) (citing ICWA Proceedings, 81 Fed. Reg. 38,778,
38,780 (June 14, 2016) (to be codified at 25 C.F.R. pt. 23)).
Congress enacted ICWA in response to concerted efforts by tribal leaders to
redress our nation’s long-standing abusive practice of removing Native children
from their families and tribes. Adoptive Couple v. Baby Girl, 570 U.S. 637, 642, 133
S. Ct. 2552, 186 L. Ed. 2d 729 (2013). Congress found “that there is no resource that
is more vital to the continued existence and integrity of Indian tribes than their
children.” 25 U.S.C. § 1901(3). It also noted “that an alarmingly high percentage of
Indian families are broken up by the removal, often unwarranted, of their children
from them by nontribal public and private agencies.” 25 U.S.C. § 1901(4). Further,
“an alarmingly high percentage of such children are placed in non-Indian foster and
adoptive homes and institutions.” Id. These intrusive and destructive patterns have
resulted in profound losses to Native communities, tribes, and Native children.
“Congress recognized that, if it failed to act to protect the First Nations family unit,
the historic genocide against the First Nations would continue via family
separation.” Rachel Johnson-Farias, Uniquely Common: The Cruel Heritage of
Separating Families of Color in the United States, 14 HARV. L. & POL’Y REV. 531,
555 (2020). Therefore, Congress enacted minimum federal standards in an effort to
stop the “‘wholesale removal of Indian children from their homes’” by non-Native
governments and to preserve tribal sovereignty and integrity. Adoptive Couple, 570
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U.S. at 642 (quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32,
109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989)). ICWA set the minimum federal standards.
Similarly, the Washington State Legislature enacted WICWA “to remedy the
historical and persistent state-sponsored destruction of Native families and
communities.” Z.J.G., 196 Wn.2d at 157. WICWA was intended to “clarify[]
existing laws and codify[] existing policies and practices,” and it delineates
“minimum requirements” to protect the rights of Indian families. RCW 13.38.030.
ICWA and WICWA are intended to preserve tribal sovereignty. Allison Krause
Elder, “Indian” as a Political Classification: Reading the Tribe Back into the Indian
Child Welfare Act, 13 NW. J.L. & SOC. POL’Y 417, 424 (2018) (“ICWA is not just
about children and families, but also about tribal sovereignty and integrity.”). Where
ICWA and WICWA differ, the court applies the provision that offers greater
protections to Indian families. 25 U.S.C. § 1921; In re Adoption of T.A.W., 186
Wn.2d 828, 844, 383 P.3d 492 (2016). In applying both statutes, we recognize the
statutes’ intention to preserve tribal sovereignty and Native families.
States have “often reviewed cases involving Indian children according to
Anglo, middle-class standards” and failed to “fairly consider the differing cultural
and social norms in Indian communities and families.” Megan Scanlon, Comment,
From Theory to Practice: Incorporating the “Active Efforts” Requirement in Indian
Child Welfare Act Proceedings, 43 ARIZ. ST. L.J. 629, 632, 633 (2011); see also H.R.
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REP. NO. 95-1386, at 10-11 (1978) (explaining how a lack of cultural competency is
a driving force in the high rates of Native child removal). Forced removal and
assimilation of Native children has damaged Native identities and cultures on an
individual level as well as a tribal level. Therefore, ICWA and WICWA provide a
number of heightened protections for Indian families, including clear notice
provisions; tribal rights to intervention and exercise of jurisdiction; and heightened
standards for removal, placement, and termination. See generally 25 U.S.C. §§ 1901-
1963; ch. 13.38 RCW. In doing so, these statutes seek not only to disrupt these
policies and practices but also to preserve and protect tribal life. See 25 U.S.C. §
1901(5); RCW 13.38.030.
These minimum standards require culturally appropriate engagement with the
Indian family and deference to the tribe at each step of the dependency, including
determination of Indian status, placement, and services. RCW 13.38.040(1), .050,
.180. Again, these are minimum requirements and “do[] not prevent the
[D]epartment from providing a higher standard of protection to the right of any
Indian child, parent, Indian custodian, or Indian child’s tribe.” RCW 13.38.030.
Throughout the dependency, the state agency is required to engage in active efforts
to reunite the family. Those efforts and the requirements ICWA and WICWA
impose must be viewed in the cultural and historical context briefly reviewed here
and in this court’s prior opinions addressing these statutes.
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B. “Active Efforts” under ICWA and WICWA
On appeal, the issue of “[w]hether the Department has satisfied the ‘active
efforts’ requirement is a mixed question of law and fact.” In re Dependency of
A.L.K., 196 Wn.2d 686, 697, 478 P.3d 63 (2020). This court reviews the trial court’s
findings of fact for substantial evidence, but it reviews the legal question of whether
the Department made active efforts in compliance with ICWA and WICWA de
novo. Id.
1. The Department’s Duty To Provide “Active Efforts”
Both ICWA and WICWA require the State to provide “active efforts”
“designed to prevent the breakup of the Indian family.” 25 U.S.C. § 1912(d); RCW
13.38.130(1). Key to “active efforts” is the Department’s duty to actively engage the
parent in a thorough, timely, consistent, and culturally appropriate manner to help
reunify the Indian family if the conclusion of the dependency court is that the
children must be removed from the care of their parent(s).
“Active efforts” has been considered the “‘gold standard’” of child welfare.
BIA GUIDELINES at 39. Under both ICWA and WICWA, heightened standards apply,
and the “active efforts” requirement is one of the most important protections under
ICWA and WICWA; it requires the state agency to engage with families to prevent
termination of parental rights and the end of an Indian family. Active efforts that are
thorough, timely, consistent, and culturally appropriate are the greatest hope to
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preserve the Indian family. Proper and timely interventions are crucial to
reunification, and any delay in adequately engaging the parent or failure to do so in
a culturally appropriate manner only accelerates the destruction of the Native
family’s cultural identity and ties to their community. The interventions of the state
agency must meet these standards.
a. “Active Efforts” Must Be Thorough, Timely, Consistent,
and Culturally Appropriate
ICWA defines “active efforts” as “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. Further,
[w]here an agency 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. To the maximum extent
possible, active efforts should be provided in a manner consistent with
the prevailing social and cultural conditions and way of life of the
Indian child’s Tribe and should be conducted in partnership with the
Indian child and the Indian child’s parents, extended family members,
Indian custodians, and Tribe. Active efforts are to be tailored to the
facts and circumstances of the case and may include, for example:
(1) Conducting a comprehensive assessment of the
circumstances of the Indian child’s family, with a focus on safe
reunification as the most desirable goal;
(2) Identifying appropriate services and helping the parents to
overcome barriers, including actively assisting the parents in obtaining
such services;
(3) Identifying, notifying, and inviting representatives of the
Indian child’s Tribe to participate in providing support and services to
the Indian child’s family and in family team meetings, permanency
planning, and resolution of placement issues;
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(4) Conducting or causing to be conducted a diligent search for
the Indian child’s extended family members, and contacting and
consulting with extended family members to provide family structure
and support for the Indian child and the Indian child’s parents;
(5) Offering and employing all available and culturally
appropriate family preservation strategies and facilitating the use of
remedial and rehabilitative services provided by the child’s Tribe;
(6) Taking steps to keep siblings together whenever possible;
(7) Supporting regular visits with parents or Indian custodians in
the most natural setting possible as well as trial home visits of the Indian
child during any period of removal, consistent with the need to ensure
the health, safety, and welfare of the child;
(8) Identifying community resources including housing,
financial, transportation, mental health, substance abuse, and peer
support services and actively assisting the Indian child’s parents or,
when appropriate, the child’s family, in utilizing and accessing those
resources;
(9) Monitoring progress and participation in services;
(10) Considering alternative ways to address the needs of the
Indian child’s parents and, where appropriate, the family, if the
optimum services do not exist or are not available;
(11) Providing post-reunification services and monitoring.
Id. “By its plain and ordinary meaning, ‘active’ cannot be merely ‘passive.’” BIA
GUIDELINES at 40.
Similarly, WICWA defines “active efforts” as the Department’s duty to
“make timely and diligent efforts to provide or procure such services, including
engaging the parent or parents or Indian custodian in reasonably available and
culturally appropriate preventive, remedial, or rehabilitative services. This shall
include those services offered by tribes and Indian organizations whenever
possible.” RCW 13.38.040(1)(a).
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The purposes of ICWA and WICWA are, by nature, different from the
purposes of the laws governing non-Indian child welfare cases. Barbara Ann
Atwood, Achieving Permanency for American Indian and Alaska Native Children:
Lessons from Tribal Traditions, 37 CAP. U. L. REV. 239, 249-50 (2008) (“Rather
than placing an emphasis on permanency per se, ICWA instead emphasizes familial
and tribal connections.”). Therefore, the standard for providing active efforts to
Indian families in child welfare cases is separate and distinct from the standard for
providing “reasonable efforts” to non-Indian families. See ICWA Proceedings, 81
Fed. Reg. at 38,791 (explaining that active efforts and reasonable efforts “are used
in separate laws and are subject to separate analyses”). Compare, e.g., RCW
13.38.040(1)(a) (requiring “active efforts”), with RCW 13.34.138(2)(c)(i) (requiring
“reasonable efforts”). The purpose of the active efforts standard is to “prevent the
breakup of the Indian family.” 25 U.S.C. § 1912(d) (emphasis added); RCW
13.38.130(1) (same). The Department cannot simply provide the same services in
the same manner to Native families that it would to non-Native families. See
Scanlon, supra, at 634-35 (discussing Congress’s rejection of proposed language to
require that services be “made available” to Indian families, instead requiring “active
efforts”). The Department is required to engage the family “beyond simply providing
referrals.” RCW 13.38.040(1)(a). “By merely making services available, the
legislation would not prevent the breakup of Indian families or thwart the placement
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of Indian children with non-Indian families.” Scanlon, supra, at 635. Rather, the
Department is required to meaningfully engage with the Indian family, and the
nature of the Department’s required actions will vary greatly from case to case. BIA
GUIDELINES at 39.
Under ICWA and WICWA, not only must the State provide higher levels of
engagement, it must also “incorporate the varying cultural and social norms of
Indian tribes and Indian families, rather than employ the same techniques that are
otherwise provided in non-ICWA proceedings.” Scanlon, supra, at 655. Culturally
appropriate interventions and communication help “ensur[e] that an Indian child will
know [their] culture and, as a result, that [their] culture will have a better chance of
continued survival.” Christine Basic, An Overview of the Indian Child Welfare Act
of 1978, 16 J. CONTEMP. LEGAL ISSUES 345, 349 (2007). To help preserve Native
culture and identity, the Department must engage “in partnership” with the Indian
family, extended family, and tribe. 25 C.F.R. § 23.2; see also RCW 13.38.040(1)(a),
.190(1).
In order to comply with ICWA and WICWA, the Department has the burden
to provide “active efforts” that are—at a minimum—thorough, timely, consistent,
and culturally appropriate. 25 U.S.C. § 1912(d); 25 C.F.R. § 23.2; RCW
13.38.040(1)(a). The Department’s actions must be thorough to “help[] the parents
to overcome barriers, including actively assisting the parents in obtaining such
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services,” and the Department must “monitor[ the parents’] progress and
participation in services.” 25 C.F.R. § 23.2(2), (9). The Department cannot simply
provide a referral and leave the parent to engage with providers and complete
services on their own. RCW 13.38.040(1)(a); In re Parental Rights of D.J.S., 12 Wn.
App. 2d 1, 36-37, 456 P.3d 820 (2020) (concluding that the Department did not
engage in active efforts when it simply met with the parent to review services and
provided instructions on how to obtain a phone, housing, and counseling, but did not
accompany the parent and help them complete applications to ensure they actually
obtained services). “Active efforts” must be specifically “tailored to the facts and
circumstances of the case,” and the Department must act diligently to address a
parent’s particular needs. 25 C.F.R. § 23.2.
The timeliness requirement for the Department’s actions is not limited to
referrals for court-ordered services but must encompass all services necessary to
reunite the Indian family. The Department must also be consistent in its provision of
active efforts throughout the dependency, and it is not relieved of its duty to provide
active efforts simply because it made sufficient efforts at another time during the
dependency. A.L.K., 196 Wn.2d at 701-02 (rejecting the Department’s argument that
because it previously found the Department had provided active efforts, the court
should find active efforts overall).
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Finally, “active efforts” must be culturally appropriate and support the Native
family’s cultural roots. “To the maximum extent possible, active efforts should be
provided in a manner consistent with the prevailing social and cultural conditions
and way of life of the Indian child’s Tribe.” 25 C.F.R. § 23.2; see also RCW
13.38.040(1)(a) (requiring “culturally appropriate preventive, remedial, or
rehabilitative services”). Social workers have often misunderstood “the ways of
Indian family life,” “the dynamics of Indian extended families,” and “Indian child-
rearing practices”; “ignorant of Indian cultural values and social norms,” they have
broken up Indian families without justification. Indian Child Welfare Program:
Hearings Before the Subcomm. on Indian Affairs of the S. Comm. on Interior and
Insular Affairs, 93d Cong., 18-19 (1974),
https://www.narf.org/nill/documents/icwa/federal/lh/hear040874/hear040874.pdf
[https://perma.cc/Z6HJ-TNGE] (hereinafter 1974 Senate Hearings) (statement of
William Byler, Exec. Dir., Ass’n on Am. Indian Affairs). The Department is less
likely to destroy the Native family’s cultural connections when it engages with the
family in a culturally appropriate manner and provides services that are connected
to the Native family’s values and beliefs. ANGELIQUE DAY & ANGELINA CALLIS,
UNIV. OF WASH. SCH. OF SOC. WORK, EVIDENCE-BASED TRIBAL CHILD WELFARE
PREVENTION PROGRAMS IN WASHINGTON STATE: A SYSTEMATIC REVIEW 4 (2020),
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https://www.dcyf.wa.gov/sites/default/files/pdf/reports/TribalCWPrevention2020.p
df [https://perma.cc/DZT2-7CXT].
Further, the Department must document its provision of active efforts in the
record. 25 C.F.R. § 23.120(b); BIA GUIDELINES at 44. This includes, but is not
limited to, information regarding
• The issues the family is facing that the State agency is targeting
with the active efforts (these should be the same issues that are
threatening the breakup of the Indian family or preventing
reunification);
• A list of active efforts the State agency determines would best
address the issues and the reasoning for choosing those specific
active efforts;
• Dates, persons contacted, and other details evidencing how the
State agency provided active efforts;
• Results of the active efforts provided and, where the results were
less than satisfactory, whether the State agency adjusted the
active efforts to better address the issues.
BIA GUIDELINES at 44. It is the Department’s responsibility to clearly document its
actions in the record to enable the court to reach an informed conclusion about the
Department’s provision of active efforts.
b. The Department Failed To Provide “Active Efforts”
Here, the Department failed to provide active efforts to prevent the breakup
of C.A.’s family from January through June 2019.15 The Department is required to,
15
The Department argues that C.A.’s appeal is moot because the court found the
Department made active efforts before and after the time period at issue here and C.A. does not
challenge those findings. However, whether the Department made active efforts during other time
periods is not dispositive to its obligation during this time period. A.L.K., 196 Wn.2d at 701-02.
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“[a]t a minimum,” demonstrate that it “actively worked with the parent . . . to engage
them in remedial services and rehabilitation programs to prevent the breakup of the
family beyond simply providing referrals to such services.” RCW 13.38.040(1)(a)
(emphasis added). The Department did little more than provide referrals for court-
ordered services, and even then, the referrals were untimely and inadequate. See In
re Welfare of A.L.C., 8 Wn. App. 2d 864, 875, 439 P.3d 694 (2019) (concluding the
Department had failed to make active efforts when it did not timely provide
referrals). Beginning in January 2019, C.A. and her attorney consistently requested
visitations and referrals. During two separate interim hearings, the dependency court
noted the Department needed to provide referrals and set up visitations. Yet, the
Department did not make any referrals for visitations and prevented C.A. from
seeing her children for over five months. Even when the Department made the
referrals for services, it engaged professionals for therapeutic visitation and family
therapy who did not typically provide those services. Nothing in the record suggests
that those professionals had experience working with Native families or that the
Department made any efforts to procure such services.
Further, because the Department is required to provide consistent active efforts and the
dependency court is required to review the Department’s actions at every hearing where the child
is placed out of the home, a prior finding of active efforts does not alleviate the Department’s
burden at any other point in a dependency.
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The Department’s untimely and inadequate referrals do not meet the
minimum ICWA and WICWA requirements for “active efforts.” WICWA
specifically notes that solely providing referrals falls below the legal standard.
Simply providing referrals and expecting a parent to take the next steps to access
services demonstrates a failure to recognize why we hold the Department to a higher
standard when working with Native families. As noted earlier, ICWA and
WICWA’s active efforts standard is often described as the “gold standard” in child
welfare—this kind of social work in dependency cases should be the norm for all
families in crisis. In cases involving Native families, it is required. It is required as
a direct result of the state and federal governments’ active engagement in attempting
to destroy these families. When destruction of Native families has been the norm, an
active and engaged process to ensure that this no longer occurs is the bare minimum,
and, here, it is the legal minimum.
The Department also failed to meaningfully engage with C.A. to address her
treatment and recovery needs. The Department is required to “[i]dentify[]
community resources including housing, financial, transportation, mental health,
substance abuse, and peer support services and actively assist[] the Indian child’s
parents . . . in utilizing and accessing those resources.” 25 C.F.R. § 23.2(8) (emphasis
added). When C.A. was in Spokane—over two hours away from her home—she
reached out to Seifert to ask for assistance obtaining services specific to her addiction
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recovery. This was their only in-person interaction during the entire time frame at
issue in this case. Seifert merely provided C.A. with a gift card, a bus pass, and
general information about local services. Nothing suggests that Seifert actually
provided C.A. with any referrals to detox facilities, but even if she had, a passive
referral alone would have been insufficient. RCW 13.38.040(1)(a) (active efforts
requires engagement “beyond simply providing referrals”). Seifert failed to provide
active efforts when she left C.A. to arrange her treatment—while at a critical
juncture, no less—when she should have actively assisted C.A. with getting the
medical treatment she needed. See A.L.K., 196 Wn.2d at 701 (explaining that the
social worker should have driven the parent to services and assisted her with filling
out forms and applications); see also D.J.S., 12 Wn. App. 2d at 36-37 (explaining
that the social worker should have taken the parent to the facility and helped him fill
out paper work, rather than leaving him to find housing himself); A.L.C., 8 Wn. App.
2d at 875 (faulting the Department for being aware of the parent’s housing needs but
making no effort to assist the parent in identifying, utilizing, or accessing services).
The actions of the Department while C.A. lived in the Tri-Cities and the
implication that C.A. lived at a distance too far for the Department to easily provide
services to C.A. are undercut by the time C.A. was in Spokane. C.A.’s treatment and
recovery period in Spokane was the only time that they were in the same city, yet
Seifert did not follow up or check on C.A. in person by visiting her at the hospital or
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the detox facility, nor did she accompany C.A. to the bus stop when she returned to
the Tri-Cities. See 25 C.F.R. § 23.2(8) ([T]he Department is required to “[i]dentify[]
community resources including housing, financial, transportation, mental health,
substance abuse, and peer support services and actively assist[] the Indian child’s
parents . . . in utilizing and accessing those resources.”); 25 C.F.R. § 23.2(9) (The
Department is responsible for “[m]onitoring progress and participation in
services.”). During the two-week period when C.A. was in treatment in Spokane,
Seifert initiated contact with C.A. only once—when she texted C.A. to discuss an
upcoming meeting regarding two of her children’s placement, not to check on her
health, safety, or needs. Seifert did not monitor C.A.’s progress in the detox program,
despite the fact that the dependency court had identified substance abuse as a
parental deficiency and ordered a chemical dependency assessment. Seifert should
have actively assisted C.A. in accessing the treatment she needed and, at the very
least, consistently reached out in any capacity. But she did not even text or call C.A.
to check on her or help her. Rather, the burden fell to C.A. to contact Seifert to
request the services she needed. After C.A. requested help finding sober housing,
Seifert texted and e-mailed her a list of sober housing facilities. Instead of actively
assisting C.A. in accessing necessary housing, Seifert left her to contact the sober
housing facilities on her own. Seifert did not follow up with C.A. to confirm she was
in safe, sober housing. Rather, it was C.A. who reached out to Seifert to inform her
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that she was unable to afford the rent and that it was unsafe for her to stay there.
Seifert’s failure to actively assist C.A. in getting admitted into a detox program or
accessing safe, affordable, sober housing and her failure to monitor C.A.’s progress
fell far below the minimum “active efforts” requirement.
The Department is also tasked with “helping the parents to overcome
barriers.” 25 C.F.R. § 23.2(2). This is not limited to court-ordered services, and must
necessarily encompass all barriers to reunification. C.A. had some barriers to reliable
communication, but Seifert made no effort to help C.A. overcome those barriers.
Seifert never took steps to help C.A. obtain a working phone, despite the fact that
doing so is a frequent part of the Department’s services to parents. Rather, Seifert
treated those communication barriers as a reason to withhold referrals and as an
excuse for her own failure to stay in touch with C.A.
Seifert’s efforts to communicate with C.A. were inconsistent and lacking.
C.A. had multiple phone numbers, yet Seifert made minimal efforts to reach C.A.
by calling or texting only one number at a time. C.A.’s primary cell phone worked
only when connected to Wi-Fi, her other cell phone had poor service, and a third cell
phone belonged to her children’s father, so it is unsurprising that C.A. could not
answer every single phone call on each of these numbers. C.A. repeatedly asked
Seifert to use her mother’s landline as her primary contact and requested that Seifert
call the landline after noon and, if C.A. was not there, leave a message. However,
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Seifert on occasion called the landline before noon or did not leave a message; she
also sent text messages to the landline. Seifert’s call logs indicate that she
sporadically called C.A., sometimes calling one phone number only once in a whole
month. At times, weeks or months passed with no attempt whatsoever to contact
C.A.
Minimal and inconsistent efforts to communicate with a parent such as these
do not suffice under ICWA and WICWA, which require the Department to make
active efforts to help parents overcome barriers like communication. 25 C.F.R. §
23.2(2). C.A. repeatedly demonstrated that she was reachable by various means, yet
Seifert’s efforts to reach her could hardly be described as exhaustive. In fact, Seifert
conceded she could have done more to communicate with C.A. by e-mailing, calling
regularly, or attempting multiple numbers at a time. Seifert did not use e-mail as
their primary method of communication, even though C.A. and her attorney
exchanged e-mails with no apparent issue. It is also worth noting that C.A. appeared
by phone at all but one of the hearings contained in the record; she was unable to
call in for only one hearing, but she communicated with her attorney shortly after.
Seifert could have worked with C.A. to establish a schedule to regularly check in on
the phone. The court also suggested the Department could provide C.A. with a new
cell phone, but the Department apparently took no steps to do so. Seifert failed to
actively work to overcome communication barriers.
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Further, rather than meaningfully working to develop a solution to these
communication barriers, the Department used C.A.’s lack of reliable communication
against her. Seifert completed a referral for family therapy in March 2019 but did
not submit it; she withheld the referral because she believed C.A. was unreliable.
Instead of actively working with C.A. to make communication easier, Seifert blamed
C.A. for not responding to every call and text. In her declaration, Seifert stated, “The
biggest barrier was [C.A.’s] ever-changing needs and lack of consistent contact
information,” and she argued that “[C.A.] also must bear responsibility.” CP at 64,
65. However, the Department bears the burden to meaningfully and actively engage
the parent. C.A.’s lack of reliable communication and stable housing were conditions
of her circumstances, and the Department is not permitted to use a parent’s poverty
or circumstances as an excuse to avoid providing active efforts. See 1974 Senate
Hearings at 1 (statement of Sen. James Abourezk (explaining that poverty is not a
reason to take Indian children away from their families)).
In contrast, C.A. made tremendous efforts to identify and access services on
her own and to communicate with Seifert, even though she was not required to do
so. After reaching out in April, C.A. regularly contacted Seifert to keep her updated
regarding her treatment, needs, and living situation. C.A. went to great lengths to
keep Seifert apprised of her situation and the best methods to contact her. She also
updated Seifert whenever she had a new contact number. After the June hearing,
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C.A. sent daily e-mails to her attorney and Seifert to inform them of her progress
and needs. Under ICWA and WICWA, C.A. had no burden to engage the
Department. C.A.’s actions demonstrate her significant efforts to communicate with
Seifert and to work with her to engage in services—even when Seifert made minimal
effort. Under ICWA and WICWA, the Department bears the responsibility to
provide active efforts to reunify the Indian family. A parent’s extraordinary efforts
do not relieve the Department of its duty to provide active efforts and actively engage
the parent in accessing and utilizing necessary services.
The Department is also required to provide culturally appropriate services in
accordance with the tribe or the children’s extended Native family members. See 25
C.F.R. § 23.2; RCW 13.38.040(1)(a). Active efforts must be “consistent with the
prevailing social and cultural conditions and way of life of the Indian child’s Tribe.”
25 C.F.R. § 23.2. Again, this is the Department’s burden, and the Department must
document its actions on the record. 25 C.F.R. § 23.120(b). The record here is
completely lacking of any evidence regarding culturally appropriate services. Based
on the record before us and the Department’s level of engagement, one would think
the children were not Native and that ICWA and WICWA did not apply to these
dependencies. The record contains no information as to any efforts to place the
children in accordance with Native placement preferences as required by law;
therefore, we do not know whether any of the foster placements for the children were
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Native, see supra note 6, or whether there were any efforts to engage with the
children’s tribe or Native family members regarding placement. See 25 U.S.C. §
1915; RCW 13.38.180. The record also contains no information as to any efforts to
procure services that are connected to and support the family’s Native values and
beliefs. See 25 C.F.R. § 23.2; RCW 13.38.040(1)(a). We do not know whether any
of the professionals the Department engaged for court-ordered services were
competent to provide culturally appropriate services to Native families. There is
nothing in the record to indicate the Department’s efforts to engage with the
Blackfeet Nation, aside from the social worker’s declaration stating that the tribe had
not been responsive.
It is critical to note here that “in practice tribes often do not have the skills or
resources needed” to actively participate in child welfare cases. Andrea V.W. Wan,
The Indian Child Welfare Act and Iñupiat Customs: A Case Study of Conflicting
Values, with Suggestions for Change, 21 ALASKA L. REV. 43, 46 (2004). The tribe’s
lack of response does not relieve the Department of its responsibility to engage the
parent in culturally appropriate services. It is a common concern of state courts that
tribal intervention and participation in ICWA/WICWA cases is limited, despite
proper notice to the children’s tribe. It is not uncommon for a tribe to wait to step in
until termination petitions have been filed. This is a result of the reality that tribal
attorneys’ offices and child welfare staff have no consistent source of financial
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stability. Tribal resources are extremely limited, and if a tribe seeks to provide child
welfare or attorney services, doing so must come from grant funding or tribal coffers.
While some tribes have been very successful in their economic development, others
have not, due to location, natural resources, and staffing. As a result, tribes will often
prioritize their limited resources, and in child welfare cases that may mean not
actively engaging in a case involving their children and families until the destruction
of that family is imminent. That may be a frustration of the Department and state
courts, but it is, again, a function of history, and recent history at that. Therefore, a
tribe’s lack of response or involvement in a dependency cannot be a reason to relieve
the Department or the court of its responsibilities. Rather, it is an additional reason
for the existence of the heightened standards of ICWA and WICWA.
The Department is also not excused from this responsibility to provide
culturally appropriate services because the parent did not self-identify specific
services.16 The burden to provide active efforts belongs to the Department, not the
parent. Nothing in the record demonstrates whether the Department made any efforts
16
In D.J.S., the Court of Appeals held that the Department was not required to provide
services tailored to the parent’s Native background because the court did not order any such
services and also because the parent had not provided testimony about any specific needs based
on his Native heritage. 12 Wn. App. 2d at 22-23. This is inconsistent with ICWA and WICWA;
culturally appropriate services are always inherently necessary. 25 C.F.R. § 23.2; RCW
13.38.040(1)(a). Therefore, we overturn D.J.S. to the extent that it held that the Department is
required to provide culturally appropriate services only when the court orders them or a parent
self-identifies special needs based on Native heritage.
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to work with the tribe or actively engage with C.A. and her children in a manner that
was culturally appropriate.
The Department failed to meet its burden to provide active efforts when it
simply provided untimely and inadequate referrals to services that were not
culturally appropriate. It also failed to engage with C.A. to overcome other barriers,
including communication, housing, and treatment. Instead, the Department used
those barriers against her and relied on them as excuses to not reach out to C.A. or
submit referrals. The Department’s actions fell far short of the minimum standards
of ICWA and WICWA.
2. The Dependency Court’s Role
State agencies and courts have both contributed to the destruction of Native
communities. Scanlon, supra, at 645 (“Congress perceived the states and their courts
as part of the problem it intended to correct with the passage of the ICWA”). “[S]tate
courts historically had found parental neglect by Indian parents through a biased lens
and without an adequate evidentiary foundation.” Atwood, supra, at 249; see also
H.R. REP. NO. 95-1386, at 11 (1978) (“The abusive actions of social workers would
largely be nullified if more judges were themselves knowledgeable about Indian
life.”).
In order to account for the court’s role in the historic destruction of Native
communities, ICWA and WICWA also impose a duty on the dependency court.
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While the Department bears the burden to provide active efforts, ICWA and
WICWA require the dependency court to regularly inquire about and evaluate the
Department’s provision of active efforts. 25 U.S.C. § 1912(d) (requiring that the
State “shall satisfy the court that active efforts have been made”); RCW 13.38.130(1)
(same); RCW 13.38.040(1)(a)(ii) (requiring that the State “must show to the court
that it has actively worked with the parent”). Further, as with other requirements, the
court’s evaluation of the Department’s provision of active efforts “must be
documented in detail in the record.” 25 C.F.R. § 23.120(b); see also BIA GUIDELINES
at 44 (“The active-efforts requirement is a key protection provided by ICWA, and it
is important that compliance with the requirement is documented in the court
record.”). Therefore, the dependency court has a duty to ensure that the standards of
ICWA and WICWA are being met and that the Department is satisfying its burden
to provide active efforts.
a. The Futility Doctrine Is Inapplicable to Child Welfare
Cases Involving Indian Children
The law under ICWA and WICWA is distinct and separate from the law that
applies in non-Native child welfare cases. In all cases involving Indian families, the
Department “shall satisfy the court that active efforts have been made . . . and that
these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d) (emphasis added);
RCW 13.38.130(1); cf. RCW 13.34.025(2) (in non-ICWA/WICWA cases, requiring
the Department to provide “access” to services capable of correcting parental
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deficiencies “in the foreseeable future” (emphasis added)). In cases involving non-
Indian families, the judicially created futility doctrine may excuse the Department
from providing services if the services would have been futile or would not remedy
the parental deficiencies within the child’s foreseeable future. In re Welfare of Hall,
99 Wn.2d 842, 850-51, 664 P.2d 1245 (1983). The futility doctrine is speculative,
and such speculation is not permitted under the plain language of ICWA and
WICWA. 25 U.S.C. § 1912(d) (the Department must demonstrate that active efforts
“have proved unsuccessful”); RCW 13.38.130(1) (same). ICWA and WICWA focus
on the Department’s actions to engage in active efforts; the Department has the
burden to provide active efforts (as well as meet the heightened standards of proof
laid out in both ICWA and WICWA), and it also has the burden to prove its efforts
were in fact unsuccessful before it can be relieved of its duty.
A parent’s inability or unwillingness to engage with the Department may be
attributed to many factors, such as cultural differences, poverty, or generational
trauma. It may also be related to the reasons for the dependency petition and ensuing
case. Excusing the Department’s burden to engage in active efforts based on a
parent’s lack of engagement would impermissibly harm Native families who are
experiencing poverty or other issues that often fall under the rubric of “neglect.”
While poverty alone is not a sufficient basis for dependency or termination, it has
historically been used as justification to remove Native children: “Poverty, poor
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housing, lack of modern plumbing, and overcrowding are often cited by social
workers as proof of parental neglect and are used as grounds for beginning custody
proceedings.” 1974 Senate Hearings at 19 (statement of Byler). “Ironically, tribes
that were forced onto reservations at gunpoint and prohibited from leaving without
a permit, are now being told that they live in a place unfit for raising their children.”
Id. at 20. “[C]ommunity or family poverty, isolation, single parenthood, custodian
age, crowded or inadequate housing, [or] substance abuse,” without “a causal
relationship” between the conditions and the likelihood of serious emotional and
physical damage to the child, do not justify State intrusion into the Native family.
25 C.F.R. § 23.121(d).
Also, disproportionately high levels of poverty in Native communities often
create barriers to engagement. See WASH. STATE DEP’T OF HEALTH, SOCIOECONOMIC
POSITION IN WASHINGTON 2 (2016),
https://www.doh.wa.gov/Portals/1/Documents/1500/Context-SEP2016-DU.pdf
[https://perma.co/6D8C-8NMK] (Dec. 19, 2016 data update of the chapter in
HEALTH OF WASHINGTON STATE (2014)). For example, lack of reliable
transportation or reliable methods of communication may make it difficult for a
parent to communicate with the Department and providers or to engage in services.
Housing instability also impedes a parent’s ability to engage; that instability is also
often improperly used as a reason to not reunify families. Further, a parent
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experiencing housing instability will necessarily have to spend time and energy
securing a safe place to sleep each night, and the stress and trauma of that effort will
often impair their ability to complete other tasks. Carmela J. DeCandia & Kathleen
Guarino, Trauma-Informed Care: An Ecological Response, 25 J. CHILD & YOUTH
CARE WORK 7 (2015). Additionally, housing instability can increase the risk of
intimate partner violence because housing-insecure people are often forced to stay
with abusive partners when they are unable to afford housing on their own. See
generally Amber Clough et al., “Having Housing Made Everything Else Possible”:
Affordable, Safe and Stable Housing for Women Survivors of Violence, 13
QUALITATIVE SOC. WORK 671 (2014). “Because of poverty and discrimination
Indian families face many difficulties, but there is no reason or justification for
believing that these problems make Indian parents unfit to raise their children.” 1974
Senate Hearings at 1 (opening statement of Sen. James Abourezk). The Department
is required to actively assist a parent in overcoming these barriers, and the court
cannot rely on these barriers to excuse the Department’s responsibility. 25 C.F.R §
23.2.
In addition, generational trauma has instilled a deep sense of distrust of
government workers in Native communities. The child welfare system often
“view[s] parents as solely responsible for their challenges” and is often “frustrat[ed]
with families’ perceived lack of commitment or willingness to do what it takes to
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get their kids back.” Sheri Freemont, Gold Standard Lawyering for Child Welfare
System-Involved Families: Anti-Racism, Compassion, and Humility, 42 THE
GUARDIAN 1, 1-2 (2020),
https://cdn.ymaws.com/www.naccchildlaw.org/resource/resmgr/guardian/2020_de
cember/guardian_2020_v42n04_r6.pdf [https://perma.cc/B37Y-6PM4]. “These
views are not only a product of white supremacy culture, but evidence of how grossly
uneducated we are as a discipline in human trauma, systemic racism, disabilities,
and cultural humility.” Id. at 2. Inherent in the State’s burden to engage the Indian
family in a culturally appropriate manner is the requirement that it be cognizant of
Indian families’ mistrust of government actors due to centuries of abuse. See 25
C.F.R. § 23.2; RCW 13.38.040(1)(a). Native communities have endured a legacy of
trauma at the hands of State actors who enacted forced removal and assimilation of
their children; therefore, Native families are much more likely to harbor a unique
distrust of government workers. Z.J.G., 196 Wn.2d at 157; see also 1974 Senate
Hearings at 5 (statement of Byler (“The Indian family is also placed in jeopardy by
the fact of going to a welfare department for help, just to get enough money to live
on and money that they’re entitled to under law. This exposes that family to the
investigations of the welfare worker.”)). Understandably, that distrust continues to
permeate today, and Native families often do not trust child welfare workers.
Application of the futility doctrine would only perpetuate trauma and distrust.
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The application of the futility doctrine to cases involving Native families
would undermine the protections afforded by ICWA and WICWA and further
exacerbate the practice of separating Native families. A parent’s lack of engagement
is relevant only insofar as the Department’s burden to prove its efforts were
unsuccessful. It does not excuse the Department from providing active efforts in the
first place. See A.L.K., 196 Wn.2d at 696-97 (rejecting application of the invited
error doctrine to an active efforts appeal when a parent was unwilling to participate
in services besides visitation). If, for example, a parent’s inability or unwillingness
to participate in services can be a basis for the Department to stop offering any
services, it would render ICWA and WICWA protections practically meaningless.
State agencies and courts have both contributed to the profound loss of Native
identity and community, and the futility doctrine would impermissibly alleviate the
State of its responsibility on the basis of speculation. See Scanlon, supra, at 645.
Given the intent of ICWA and WICWA, the futility doctrine has no
application to Indian families. Courts are “bound by the statutory language and
implementing regulations of ICWA and WICWA, and we interpret these acts to
serve their underlying purposes.” Z.J.G., 196 Wn.2d at 158. Therefore, we hold that
the futility doctrine does not apply to cases governed by ICWA and WICWA. 17
17
Therefore, we overturn D.J.S., 12 Wn. App. 2d at 24, 38-40, in part, because the futility
doctrine is inapplicable in dependency cases involving Indian families.
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b. Under WICWA, the Dependency Court Must Evaluate the
Department’s “Active Efforts” at Every Hearing Where
the Child Is Placed out of the Home
Under ICWA, the court is required to evaluate the Department’s provision of
active efforts at foster care placement hearings and termination hearings. 25 U.S.C.
§ 1912(d). The BIA recommends the court “inquire about active efforts at every
court hearing and actively monitor compliance with the active efforts requirement.”
BIA GUIDELINES at 43 (emphasis added). Under WICWA, the court is required to
make this finding when the child is first placed out of the home, at termination, and
“[i]n any dependency proceeding . . . in which the [State] is seeking the continued
out-of-home placement of an Indian child.” RCW 13.38.040(1)(a)(i)-(iii); see also
13.38.130(1). We apply the provision that offers greater protections to Indian
families. 25 U.S.C. § 1921; T.A.W., 186 Wn.2d at 844. Therefore, the Department
bears the burden to demonstrate active efforts and the dependency court has the
responsibility to evaluate those efforts at every dependency proceeding where the
child is placed out of the home. RCW 13.38.040(1)(a)(ii). 18 If the Department’s
18
ICWA does not expressly require that the court inquire about active efforts at every
hearing, but the BIA Guidelines recommend that the court make this finding at every hearing in
order to actively monitor ICWA compliance. BIA GUIDELINES at 43. “This will help avoid
unnecessary delays in achieving reunification with the parent, or other permanency for the child.”
Id. Again, ICWA establishes minimum standards. Requiring this finding only at foster placement
and termination would eviscerate protections to Native families in that it would require review of
active efforts only at the initiation and conclusion of dependency proceedings, but not during the
course of the dependency. This would deprive the Native parent of the opportunity to benefit from
services to resolve barriers to reunification. The BIA Guidelines recommend a higher standard
than those required by ICWA. In order to carry out Congress’ intent, courts should hold themselves
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actions are not sufficient, the court must direct the Department to do more before the
case may proceed to termination.
c. The Dependency Court Failed Its Responsibility under
ICWA and WICWA
The dependency court failed to competently evaluate the Department’s
provision of active efforts and improperly applied the futility doctrine. In its oral
ruling, the court noted that referrals for family therapy, a parenting assessment, and
visitation were delayed, and it acknowledged the process could be improved, but it
failed to address the significance of the over-five-month delay. The Department’s
failure to submit timely referrals did not satisfy the active efforts requirement. RCW
13.38.040(1)(a) (the Department must engage the parent “beyond simply providing
referrals”); A.L.C., 8 Wn. App. 2d at 874-75 (the Department failed to make active
efforts when it did not provide a referral until 46 days after the court ordered the
service). Even though it stated that Seifert should have communicated the reasons
for not submitting the referral for family therapy, the court declined to find that this
fell below the active efforts requirement. Instead, the dependency court stated that it
“is not the court’s role” to “critique how social workers could do better in every
and state agencies to more than the minimum standards contained in ICWA, and courts should
make the active efforts finding at every hearing. This best practice, requiring the court’s regular
inquiry into the Department’s efforts, will better improve the practice and promote the purposes
of ICWA.
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case.” CP at 165. That is incorrect. It is precisely the court’s role to assess whether
the Department meets its burden to provide active efforts.
The Department alleges that C.A. waived any opportunity to challenge the
dependency court’s active efforts findings because she did not directly challenge the
orders from the March and June hearings that found the Department made active
efforts. Both orders were agreed orders and contained a preprinted checkbox that
stated:
DCYF/Supervising agency made active efforts by actively working
with the parent, parents, or Indian Custodian to engage them in remedial
services and rehabilitative programs to prevent the breakup of the
Indian family beyond simply providing referrals to such services, but
those efforts have been unsuccessful.
CP at 2, 16. However, because the dependency court must evaluate whether the
Department made active efforts on the record at every hearing where the child is in
out-of-home placement, a preprinted checkbox is not dispositive and does not relieve
the Department or the court of their burdens. The boilerplate language contained in
the orders alone cannot meet the standard of a finding of active efforts. See 25 U.S.C.
§ 1912(d) (the State “shall satisfy the court”); RCW 13.38.130(1) (same); see also
RCW 13.38.040(1)(a)(ii) (the State “must show to the court”). Further, counsel’s
signature on an order where the preprinted active efforts box is checked does not
waive a parent’s right to challenge the active efforts finding. Rather, as part of its
duty to meaningfully evaluate the Department’s efforts, the dependency court must
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make a clear record of those efforts underlying such a finding. See 25 C.F.R. §
23.120(b) (requiring that “[a]ctive efforts must be documented in detail in the
record”). The dependency court must make this finding on the record at every
hearing where the child is in out-of-home placement. RCW 13.38.040(1)(a)(ii). It is
important to note that the requirement of active efforts is not limited to benefiting
the Indian family; it implicates the tribe’s rights as well. Tribes are entitled to
intervene in dependency cases involving their children and doing so makes them
parties in these cases. 25 U.S.C. § 1911(c). It is as much a requirement that ensures
the provision of appropriate engagement and services to the Indian family as it is a
requirement that protects the rights of tribes to continue to exist and protect the next
generation.
Rather than meaningfully evaluating the Department’s provision of active
efforts, the dependency court excused the Department’s burden based on the
speculative conclusion that even if the referrals had been timely made, they would
have been unsuccessful. In the same way the Department faulted C.A. for the barriers
to reliable communication, so did the dependency court. The court and the
Department both assumed C.A. would be unresponsive and that a referral would
only “set[ ] up [C.A.] for likely failure.” CP at 165. The court speculated that nothing
would come from the referral and stated it was “not convinced today, given the
history, that anything would be different,” regardless of what the Department did or
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did not do. VRP (Aug. 1, 2019) at 100. The dependency court failed its duty to
thoughtfully evaluate the Department’s provision of efforts in compliance with
ICWA and WICWA and impermissibly applied the futility doctrine.
C. WICWA Provides an Equal and Alternative Basis for Reversal
The plain language and purposes of ICWA and WICWA both require that the
Department provide “active efforts” that are, at a minimum, thorough, timely,
consistent, and culturally appropriate. ICWA itself does not provide a definition of
active efforts; however, the binding federal regulations provide a detailed definition
of “active efforts” along with a nonexhaustive list of examples. 25 C.F.R. § 23.2.
WICWA also clearly defines what constitutes “active efforts.” RCW 13.38.040(1)
(defining active efforts). The definitions of “active efforts” in ICWA and WICWA
are the same in that they both require the Department to engage the parent in timely,
diligent, and culturally appropriate services. Therefore, while there is a sufficient
basis for reversal under ICWA, there is also an equal and alternative basis for
reversal under WICWA because the Department failed to meet the minimum
standards for active efforts as defined in WICWA.
ICWA and WICWA also require the court to meaningfully evaluate the
Department’s provision of active efforts. The BIA Guidelines recommend, but do
not require, the active efforts finding be made on the record at every hearing during
the dependency under ICWA. However, WICWA requires that the dependency
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court make this finding at every hearing where the Indian child is in out-of-home
placement. RCW 13.38.040(1)(a)(ii) (requiring the Department to demonstrate to
the court that it has made active efforts “[i]n any dependency proceeding . . . in which
the [State] is seeking the continued out-of-home placement of an Indian child”). In
this case, C.A. raised the issue of active efforts in the middle of the dependency, not
during a hearing on foster care placement or termination. Cf. 25 U.S.C. § 1912(d).
Although we conclude that the court was not required to evaluate the Department’s
active efforts at this stage in the dependency under ICWA, the plain language of
WICWA does require the court to conduct this evaluation at every hearing when the
child is in an out-of-home placement. RCW 13.38.040(1)(a)(ii). But see supra note
18. Therefore, WICWA provides an independent basis to conclude that the
dependency court failed to properly evaluate the Department’s efforts from January
through June 2019, warranting reversal.
D. Remedy
The remedy for improper removal of an Indian child is immediate return of
the child, unless doing so “would subject the child to a substantial and immediate
danger or threat of such danger.” 25 U.S.C. § 1920; RCW 13.38.160 (same). This
remedy is proper during the early stages of a dependency or any other stage where
removal of the child may have been improper. See A.L.K., 196 Wn.2d at 703-04
(reversing and remanding for a substantial and immediate danger finding when the
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Department failed to prove active efforts at removal); see also A.L.C., 8 Wn. App.
2d at 876-77 (within several months after the dependency finding, reversing and
remanding for a substantial and immediate danger finding); see also State v.
Michelle P., 411 P.3d 576, 587 (Alaska 2018) (before returning the child to her
family, remanding for a substantial and immediate danger finding when removal was
ordered without any finding of such harm).
However, when the only issue is whether the Department has met the active
efforts requirement during the course of an ongoing dependency, automatic reversal
for a substantial and immediate danger finding is not the proper remedy. Instead, if
the removal and dependency finding are not at issue, a termination petition has been
filed, and the Department has not provided active efforts, the dependency court must
direct the Department to provide adequate active efforts and give the parent
additional time to complete services. See 25 U.S.C. § 1912(d) (requiring that the
Department provide active efforts prior to a termination of parental rights); RCW
13.38.130 (same). A parent must have the opportunity to engage in and benefit from
active efforts, and a termination petition cannot proceed until active efforts have
been accomplished. This approach best balances compliance with ICWA and
WICWA as well as the children’s interest in permanency because automatic reversal
for new proceedings when matters have already begun to proceed to termination
would only further delay permanency for the children. See In re Morris, 491 Mich.
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81, 119-20, 815 N.W.2d 62 (2012) (before invalidating all dependency orders,
conditional reversal for trial court to resolve notice issue).
Here, at best, the Department provided untimely, inadequate referrals and
passively engaged with C.A. This falls far short of the minimum standards in ICWA
and WICWA. 19 The Department’s untimely and inadequate referrals prevented C.A.
from seeing her children or accessing court-ordered services for over five months.
Also, the Department failed to actively engage with C.A. to help her overcome her
particular needs, including communication barriers, access to treatment, and stable
housing. The Department also failed to engage with C.A. and the tribe to provide
culturally appropriate services. Additionally, the dependency court failed in its duty
to meaningfully evaluate the Department’s efforts and impermissibly applied the
futility doctrine.
From January through June 2019, the Department failed in its burden to
provide “active efforts” that are thorough, timely, consistent, and culturally
appropriate, and the court failed to uphold the standards of ICWA and WICWA
when it concluded the Department’s actions were sufficient. The Department’s
failure impaired C.A.’s ability to engage in services to address her parental
deficiencies. Before proceeding to a termination hearing, the dependency court must
19
It is worth pointing out that it is unlikely that the Department’s efforts would even satisfy
the “reasonable efforts” requirement in non-ICWA cases.
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direct the Department to provide active efforts, and the court must give C.A.
additional time to complete services with the benefit of active efforts. Therefore, we
reverse the dependency court’s finding that the Department satisfied the active
efforts requirement, remand, and direct the trial court to order the Department to
provide active efforts before the court may proceed to hear the filed termination
petitions.
III. CONCLUSION
The history of the United States and its relationship with Native tribes,
communities, and families tell a story of promises made and broken. We rely on the
commitment made by Congress and the Washington State Legislature to decline to
remove Native children from their families and communities unless absolutely
necessary and to actively work toward reunification in those limited instances when
the high standard for removal has been met. Today, we hold our state child welfare
system and our courts to those promises. We reverse the dependency court’s finding
that the Department provided active efforts and remand to the trial court with
instructions to order the Department to provide active efforts in accordance with this
ruling. We also order the dependency court to not proceed to hear the termination
petitions until the Department has provided active efforts.
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______________________________
WE CONCUR:
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