In the Matter of the Dependency of G.J.A., A.R.A., S.S.A., J.J.A., and V.A., Minor children.
No. 98554-5
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
June 24, 2021
MONTOYA-LEWIS, J.
EN BANC
of Indian Affairs (BIA), issued regulations stating, in part, that “[a]ctive efforts means affirmative, active, thorough, and timely efforts.”
In 2020, in McGirt v. Oklahoma, ___ U.S. ___, 140 S. Ct. 2452, 2459, 207 L. Ed. 2d 985 (2020), Justice Gorsuch wrote on behalf of the United States
ongoing training and work by the Department of Children, Youth, and Families (Department) to reduce this disproportionality.
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.
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.
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.”
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
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.
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
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.
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
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
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
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
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.
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
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.
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
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.
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
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
, 165, 471 P.3d 853 (2020) (citing ICWA Proceedings, 81 Fed. Reg. 38,778, 38,780 (June 14, 2016) (to be codified at
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.”
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.
States have “often reviewed cases involving Indian children according to Anglo,
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
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.
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.”
“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
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.”
[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:
- Conducting a comprehensive assessment of the circumstances of the Indian child‘s family, with a focus on safe reunification as the most desirable goal;
- Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;
- 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;
- 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;
- 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;
- Taking steps to keep siblings together whenever possible;
- 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;
- 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;
- Monitoring progress and participation in services;
- 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;
- Providing post-reunification services and monitoring.
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.”
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.,
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.
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.
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).
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.”
Further, the Department must document its provision of active efforts in the record.
- 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,
“[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.”
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.
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
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.”
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 the detox facility, nor did she accompany C.A. to the bus stop when she returned to the Tri-Cities. See
The Department is also tasked with “helping the parents to overcome barriers.”
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, 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.
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
The Department is also required to provide culturally appropriate services in accordance with the tribe or the children‘s extended Native family members. See
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 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
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 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.
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.
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.”
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
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.
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 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.
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 get their kids back.” Sheri Freemont,
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
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.
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.
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
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 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.
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 court make this finding at every hearing where the Indian child is in out-of-home placement.
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.”
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
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 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
Montoya-Lewis, J.
WE CONCUR:
González, C.J.
Stephens, J.
Johnson, J.
Gordon McCloud, J.
Madsen, J.
Yu, J.
Owens, J.
Whitener, J.
Notes
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.