In the Matter of the Parental Rights to: D.J.S.

                                                                   FILED
                                                                 JULY 6, 2021
                                                        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 Parental Rights to:      )          No. 37711-3-III
                                              )          (consolidated with
D.J.S.                                        )          No. 37928-1-III)
                                              )
                                              )         UNPUBLISHED OPINION
                                              )

         PENNELL, C.J. — Dennis J. Smith 1 is a Native American child who was removed

from his home at birth by the Department of Children, Youth and Families (Department).

Court orders terminating the parental rights of Dennis’s father, James Smith, have been

subject to substantial litigation due to the Department’s struggles with satisfying the terms

of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and the


         1
         In the interest of consistency, we adopt the pseudonyms for the child and father
used by this court in its prior decision. See In re Parental Rights to D.J.S., 12 Wn. App.
2d 1, 7, 456 P.3d 820 (2020), overruled in part by In re Dependency of G.J.A., No.
98554-5, slip op. at 37 n.16, 44 n.17 (Wash. June 24, 2021),
https://www.courts.wa.gov/opinions/pdf/985545.pdf.
Nos. 37711-3-III; 37928-1-III
In re Parental Rights to D.J.S.


Washington State Indian Child Welfare Act (WICWA), chapter 13.38 RCW. Most

recently, we remanded on appeal of an order terminating Mr. Smith’s parental rights

based on the Department’s failure to engage in active efforts at family reunification, as

required by ICWA and WICWA. In re Parental Rights to D.J.S., 12 Wn. App. 2d 1, 7,

456 P.3d 820 (2020) (D.J.S.), overruled in part by In re Dependency of G.J.A., No.

98554-5, slip op. at 37 n.16, 37 n.16, 44 n.17 (Wash. June 24, 2021),

https://www.courts.wa.gov/opinions/pdf/985545.pdf. In our remand, we directed the

juvenile court to assess whether active efforts would be futile, an issue that had not been

previously addressed. At the remand hearing, the juvenile court determined active efforts

would be futile and Mr. Smith appealed the court’s findings on remand. The juvenile

court later incorporated its futility findings in an order terminating parental rights. Mr.

Smith also appealed from that order and the two cases have been consolidated for review.

       We reverse the juvenile court’s order terminating parental rights. The Supreme

Court’s decision in G.J.A. overturned our holding in D.J.S. that the futility doctrine

applies in dependency cases involving Native American children. See G.J.A., No. 98554-

5, slip op. at 44 n.17. Based on our prior ruling that the Department failed to provide Mr.

Smith with active efforts at family reunification, the order terminating Mr. Smith’s

parental rights to his son must be reversed. 25 U.S.C. § 1912(d) (termination of parental


                                              2
Nos. 37711-3-III; 37928-1-III
In re Parental Rights to D.J.S.


rights must be preceded by active efforts); RCW 13.38.130(1) (same). This matter is

remanded to reinstate the dependency.

       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.


                                          _________________________________
                                          Pennell, C.J.
WE CONCUR:



______________________________
Siddoway, J.



______________________________
Fearing, J.




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