Dependency Of K.s., Dob: 12/20/13, Dshs, Resp v. Michelle Frank
75169-7
| Wash. Ct. App. | Jun 19, 2017Background
- Mother Michele Frank, an enrolled member of the Ketchikan Indian Community (Tlingit & Haida), voluntarily placed her son KS (born 2013) into protective care in August 2015; KS is an Indian child under ICWA and WA ICW A.
- Prior involvement began March 2015 after concerns about Frank’s mental health, unsanitary living conditions, missed appointments for children, and housing instability; social workers provided tangible supports and referrals but Frank repeatedly failed to sustain services or stable housing.
- After relocating to Seattle, Frank’s contact with social workers declined; she admitted to methamphetamine and heroin use, had episodic homelessness, and once allowed a man (Mau) to have unsupervised access to KS, who was briefly missing and found in a homeless encampment.
- The Department filed a dependency petition (Aug 2015); KS was placed in licensed foster care and the Tribe intervened; multiple social workers and the Tribe’s ICWA caseworker (Misty Archibald) participated.
- At the fact-finding hearing, the juvenile court found KS dependent under RCW 13.34.030(6)(c) and, after a dispositional hearing, ordered KS remain in licensed care pending interstate placement with Alaska relatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile court erred by finding KS dependent under RCW 13.34.030(6)(c) | Frank contended dependency finding required higher (clear and convincing) standard in ICWA context and argued Department failed to prove likelihood of serious harm | Department argued preponderance standard governs fact-finding; moreover, record shows risk from substance use, mental health, housing instability, and unsafe contacts | Court applied clear and convincing standard (at mother’s request) but found Frank waived challenge to dependency; dependency finding affirmed based on substantial evidence of likely harm |
| Whether the Tribe’s caseworker (Archibald) qualified as an ICWA “qualified expert witness” | Frank argued Tribe was not asked to designate an expert and Archibald lacked requisite expertise/tribal-elder status | Department produced notice to Tribe and Archibald testified as Tribe’s ICWA worker, member of tribe, knowledgeable of customs; court allowed plaintiff’s tardy expert too | Court held Archibald was a qualified expert; no abuse of discretion in admission |
| Whether Department made required “active efforts” under ICWA/RCW 13.38.130 | Frank argued Department merely provided referrals after she moved to Seattle and failed to coordinate culturally appropriate, concrete services | Department documented repeated, ongoing attempts to engage Frank, provided direct assistance earlier (car seat, cleaning help, appointments, transportation, referrals, tribal contacts), and efforts were frustrated by Frank’s noncooperation | Court found Department met its burden of showing active efforts; efforts were ongoing and reasonably diligent |
| Whether continued custody by Frank was likely to cause serious emotional or physical damage (ICWA §1912(e) burden) | Frank argued KS had not suffered measurable harm, that isolated incidents (hospital episode, missing child) were explainable, and her instability did not prove future serious damage | Department pointed to substance abuse, mental health decline, housing instability, unsafe contacts, inability to coordinate services, and professional opinions that risk of serious damage existed | Court found clear, cogent, convincing evidence that continued custody would likely result in serious emotional/physical damage; removal upheld |
Key Cases Cited
- In re Welfare of Key, 119 Wn.2d 600 (discussion of dependency standard and burden of proof)
- In re Interest of Mahaney, 146 Wn.2d 878 (ICWA expert-witness latitude; cultural bias protection)
- In re Adoption of T.A.W., 186 Wn.2d 828 (coextensive nature of federal and state ICWA provisions)
- In re Dependency of Roberts, 46 Wn. App. 748 (qualified expert witness requires expertise beyond usual social worker qualifications)
- In re Welfare of Fisher, 31 Wn. App. 550 (permissible qualifications for ICWA-related expert testimony)
- Brown v. Vail, 169 Wn.2d 318 (waiver of appellate issues not argued)