R.B. v. C.W.
188 Wash. App. 799
Wash. Ct. App.2015Background
- TAW is an Indian child born to CB (Indian) and CW (non-Indian) and residing with CB and RB (CB’s husband).
- CW appeals a trial court order terminating his parental rights and allowing RB to adopt TAW.
- CW argues the trial court failed to satisfy ICWA’s active efforts requirements under 25 U.S.C. § 1912(d) and RCW 13.38.130(1).
- The trial court concluded ICWA applied and that its elements were met, but record showed no evidence of active efforts or findings.
- CW had custody for periods prior to incarceration; later, CB began a relationship with RB, CB and RB pursued termination and adoption.
- The Washington Court of Appeals reverses and remands, holding that ICWA’s active efforts requirement applies and was not satisfied, and Adoptive Couple is not controlling here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether active efforts were shown | CW argues CB/RB failed to prove active efforts to prevent breakup. | CB/RB contend ICWA active efforts not properly raised; child abandonment may negate active efforts. | Active efforts not proven; reversal and remand required. |
| Whether CW can raise ICWA issue on appeal | CW may raise sufficiency of evidence issue under RAP 2.5(a)(2). | Appellants contend issue not preserved; arguments waived. | CW may raise for the first time on appeal under RAP 2.5(a)(2). |
| ICWA's applicability to non-Indian parent | ICWA applies to termination of an Indian child regardless of parent status. | ICWA applies only when parents are Indian. | ICWA applies to the termination of CW’s rights even though CW is not Indian. |
| Impact of Adoptive Couple on ICWA applicability | Adoptive Couple may limit application of §1912(d) when abandonment precludes a breakup. | Adoptive Couple controls; does not apply because CW had custody and relationship with TAW. | Adoptive Couple does not preclude ICWA here; active efforts apply to a parent who had custody. |
Key Cases Cited
- In re Parenting & Support of Beach, 159 Wn. App. 686 (2011) (ICWA applicability in termination involves Indian child)
- In re Custody of C.C.M., 149 Wn. App. 184 (2009) (statutory interpretation of ICWA applicability)
- Jametsky v. Olsen, 179 Wn.2d 756 (2014) (statutory interpretation, de novo review)
- Mukilteo Retirement Apts., LLC v. Mukilteo Inv’rs, LP, 176 Wn. App. 244 (2013) (claims based on failure to establish facts on relief)
- In re J.S., 2014 MT 79 (Mont. 2014) (Adoptive Couple analysis applied to abandonment scenario)