456 P.3d 820
Wash. Ct. App.2020Background
- Father James Smith, an enrolled member of the Oglala Sioux Tribe, is the biological father of Dennis, a premature infant with significant medical and behavioral needs who entered foster care shortly after birth.
- DSHS filed dependency and the court ordered services for Smith: chemical-dependency evaluation/treatment, random urinalyses, parenting assessment/education, mental-health and domestic-violence evaluations, and housing assistance.
- Smith has a documented severe methamphetamine dependency, sporadic visitation, aborted inpatient treatment, multiple jail stays, and inconsistent engagement with referrals; he denied ongoing drug use but later pleaded guilty to possession.
- DSHS provided referrals, staff meetings, some assistance (e.g., giving a housing-network phone number, walking Smith to obtain a phone), and sent multiple notices to the Oglala Sioux Tribe; the Tribe did not participate.
- The superior court terminated Smith’s parental rights; on appeal the Court of Appeals held DSHS failed to offer one ordered service (parenting classes) but found offering them would have been futile, and reversed the court’s finding that DSHS satisfied ICWA/WICWA active-efforts before remanding to determine whether active efforts would likewise have been futile.
Issues
| Issue | Smith's Argument | DSHS's Argument | Held |
|---|---|---|---|
| 1. Did DSHS provide all court-ordered and reasonably available services (RCW 13.34.180(1)(d))? | DSHS failed to offer ordered parenting education and did not tailor services (housing, cultural/Native-specific treatment, MH) to his needs. | Parenting classes were properly deferred until sobriety; referrals and local availability satisfied the obligation. | Court: DSHS failed to offer the ordered parenting classes, but the trial court’s alternative finding that parenting classes would have been futile is supported by substantial evidence. |
| 2. Would offering parenting education concurrently with active substance abuse have been futile? | Smith argued he was entitled to the classes as ordered. | DSHS argued classes would not have helped while Smith remained actively using. | Held: Yes — evidence supports that parenting education would have been futile until sobriety. |
| 3. Did DSHS satisfy ICWA/WICWA ‘‘active efforts’’ requirement before termination? | DSHS did not take affirmative, culturally-tailored, hands-on steps (e.g., ensuring phone/housing, escorting to services, engaging tribal resources). | DSHS relied on meetings, referrals, and outreach to the Tribe to show active efforts. | Held: No — the record shows only passive efforts; the court reversed the finding that ICWA/WICWA active efforts were met and remanded to determine whether additional active efforts would have been futile. |
| 4. Did DSHS prove the remaining termination elements: diminished prospects for early integration, best interests, and ICWA serious-harm requirement? | Smith argued insufficiency of evidence, including failure to consider tribal interests. | DSHS presented testimony (including ICWA expert) about Smith’s ongoing substance abuse, lack of bond, child’s special needs, and need for permanency. | Held: Yes — findings that continuation would diminish early integration, that termination is in the child’s best interests, and that continued custody would likely cause serious emotional or physical harm were affirmed. |
Key Cases Cited
- In re Welfare of A.B., 168 Wn.2d 908 (Wash. 2010) (two-step RCW 13.34 termination framework and best-interests standard)
- In re Parental Rights to K.M.M., 186 Wn.2d 466 (Wash. 2016) (futility doctrine and proof standards in termination cases)
- In re Welfare of Hall, 99 Wn.2d 842 (Wash. 1983) (futility doctrine for offering services)
- In re Dependency of A.M., 106 Wn. App. 123 (Wash. Ct. App. 2001) (discussion of RCW services obligation versus ICWA active-efforts)
- Adoptive Couple v. Baby Girl, 570 U.S. 637 (U.S. 2013) (limits of certain ICWA protections when parent never had custody)
- Bob S. v. State, 400 P.3d 99 (Alaska 2017) (ICWA active-efforts standard and consideration of parental noncooperation)
- In re E.G.M., 230 N.C. App. 196 (N.C. Ct. App. 2013) (vacatur/remand where trial court failed to make futility findings regarding active efforts)
- In re A.C., 239 Cal. App. 4th 641 (Cal. Ct. App. 2015) (examples of active efforts exceeding mere referrals)