In the Matter of the Welfare of: C.J.J.I.

Full text

FILED AUGUST 22, 2024 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

FEARING, J. — The mother of three children, two of whom are Native American, appeals from a juvenile court order declaring her children dependent and from a disposition order continuing the placement of the children outside her home. She clutches Washington Supreme Court decisional language that imposes on the juvenile court, in accordance with the Washington Indian Child Welfare Act (WICWA), the duty of assessing active efforts at every dependency hearing. Based on this principle, she assigns error to the juvenile court’s failure to find active efforts during the dependency hearing that preceded the disposition hearing. In response, the State contends that the juvenile court needed to address active efforts only at a hearing in which the State sought out-of-home placement. According to the State, the mother’s children were already placed elsewhere, at the time of the dependency fact-finding hearing, and the juvenile court addressed their continued placement only later during the disposition hearing. At

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the dependency hearing, the juvenile court found Department of Children, Youth and Families (DCYF) exerted active efforts to reunite the family.

We rule, based on RCW 13.38.040(1)(a)(ii) and In re Dependency of G.J.A., 197 Wn.2d 868, 875, 489 P.3d 631 (2021), that the dependency court must review and find active efforts during every hearing, in which the State seeks to place the Indian child out of the home. As a result, the trial court erred when not finding active efforts at the dependency hearing. This lack of review poses particular problems in this appeal because of the significant delay between the dependency hearing and the disposition hearing.

FACTS

This appeal concerns the dependency of the mother’s three children, daughter C.V.I., age 13, son C.J.J.I., age 8, and son R.R., age 5. The ages listed are the ages of each child in September 2022 when the State filed the dependency petition. The father of C.V.I. and C.J.J.I. is B.I., a Native American. The father of R.R. is also R.R., not Native American. Neither father has participated in the care of their respective children or responded to the dependency proceeding. We procure most of the substantive facts from testimony at the dependency fact-finding hearing.

C.J.J.I. is an enrolled member of, and C.V.I. is eligible for enrollment in, the Cheyenne River Sioux Tribe through their father, who is a member. Thus, the two oldest

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children are Indian children within the meaning of Indian Child Welfare Act (ICWA) chapter 13.38 RCW and WICWA.

This appeal arises from a dependency action for all three children filed in 2022. DCYF administered an earlier dependency action for C.V.I., C.J.J.I., and R.R. from 2017 to 2021. We begin the facts on the return of the three children to the mother in 2021.

Jessica Richter, a program manager for the substance use disorder program at the Spokane Addiction Recovery Center (SPARC), spoke with the oldest child, C.V.I., soon after the children’s return home in 2021. C.V.I. mentioned the mother’s drug use but provided no specific information on the use. On a later day, C.V.I. disclosed to Richter that her mother used methamphetamine, and she had seen methamphetamine in her mother’s bedside drawer.

In March 2022, Child Protection Services (CPS) opened a new intake file for the mother’s family. The reporting party related that the mother ingested methamphetamine and the children had access to the drug. The mother had directed C.V.I. to move a bong into the bedroom so that visitors would not espy the device. Cassidy Rose, the DCYF social worker assigned to the file, requested that the mother provide a urinalysis (UA). Rose listed services available to assist mother. The mother completed the UA testing, but declined any further assistance from DCYF. The mother abhorred the government’s harassment of her and her family.

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Jessica Richter, the substance use disorder program manager at SPARC, testified at the dependency hearing about the mother’s substance use. Richter averred that the mother failed to disclose cocaine use in March 2022 during a substance abuse evaluation.

In mid-April 2022, CPS received another referral concerning supervision of middle child, C.J.J.I. C.J.J.I., while unsupervised in the apartment complex where the family lived, exposed himself to another child. CPS received five additional reports of concerns for the children in May 2022. These intakes alleged that the mother physically assaulted C.V.I., that C.V.I. performed most of the care and supervision of her younger siblings, and that C.V.I. reported to her school counselor the presence of illicit substances in the home. At that time, DCYF concluded that insufficient evidence supported each report.

During the later dependency fact-finding trial in November 2022, Janet McDonald, a Greenacres Middle School counselor, testified to events in May 2022. C.V.I. attended Greenacres Middle School. According to McDonald, C.V.I. reported that she supervised her brothers when her mom socialized with her boyfriend, Shawn Nason, and C.V.I. commented that Nason carries a gun, which rendered her uncomfortable. In response to C.V.I.’s allegations, the mother blamed C.V.I. for R.R. running away unsupervised from a park. The mother also claimed that C.V.I. attempted to fist fight her.

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DCYF social worker Cassidy Rose testified at the dependency hearing to interviewing C.V.I. on May 17, 2022 about the purported altercation between the mother and C.V.I. C.V.I. disclosed she visited a park with her boyfriend. Her mother had tasked her to supervise youngest child, R.R., and he had run home unsupervised. According to C.V.I., when she returned home, her upset mother punched her throughout her body. C.V.I. stated the punching was strong enough to cause bruises, but Rose did not see any bruises. During the May 17 interview, C.V.I. also added that she saw her mother strike R.R., which caused a mark on his leg.

C.J.J.I. attended Greenacres Elementary School, not to be confused with the nearby Greenacres Middle School. A May 24 report prepared by DCYF from information supplied by Greenacres Elementary School recorded that C.J.J.I. mentioned drinking alcohol to fall asleep. The report gave no date for the incident.

On May 26, 2022, the mother did not answer the phone when Greenacres Elementary School personnel called her to retrieve C.J.J.I. from school. C.J.J.I. needed transportation home because of his banishment from the school bus due to poor behavior. At 5:30 p.m., on May 26, the mother and a friend arrived at the school after the friend found the mother at Shawn Nason’s home. On the mother’s arrival at the school, the elementary school Principal Lindsey Kent observed the mother looking disheveled with

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marks on her arm that she stated resulted from being at the hospital. According to Kent, the mother’ speech was difficult to follow.

A June 2 DCYF report repeated other information supplied by Greenacres Elementary School. According to the report, C.J.J.I. told school staff that his mother had not spent the last two nights at home and he stayed elsewhere during those nights. C.J.J.I. added that he failed to take his morning medication in the absence of his mother. He arrived at school hungry because of the lack of dinner the night prior. The report further declared that C.J.J.I. took school lunches home for his dinner.

A June 3, 2022, report read that C.J.J.I. disclosed that the doors to his house were locked when he arrived home the previous afternoon. He stayed overnight with another family in the apartment complex, but ate no dinner. According to school officials, C.J.J.I. could not recall the last time he saw his mom.

To address the mother’ struggles with supervision of her children, DCYF contacted child care providers near the family’s home, including Vanessa Behan Crisis Nursery. DCYF also asked school counselors about after school programs. DCYF helped enroll the children in daycare at the MLK Community Center. DCYF connected the mother with an organization that paid for the costs associated with the daycare. Nevertheless, the children attended daycare for only five days. Social workers

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unsuccessfully attempted to contact the mother about the children’s absence from daycare by sending text messages, calling her phone, and visiting her house.

On September 16, 2022, DCYF removed C.J.J.I. and R.R from home. DCYF took custody of C.J.J.I. from Greenacres Elementary School at the end of the school day. School Principal Lindsey Kent observed the apprehension. According to Kent, C.J.J.I. understood the nature of DCYF’s action and became upset. As social workers escorted C.J.J.I. to a van, the mother arrived at the school. The mother approached C.J.J.I. and uttered: “You good bro? You good? We talked about this.” Report of Proceedings (RP) at 148.

Social worker Cassidy Rose avowed, at the dependency fact-finding hearing, that the mother, at an earlier shelter care hearing, denied use of controlled substances. Later, at that shelter care hearing, when asked by the juvenile court as to what a hair follicle test would show, the mother replied that it would test positive for cocaine.

During a September 29 meeting between the mother and Angela Van Grimbergen, an employee for the Institute for Family Development, the mother expressed frustration with DCYF. The mother told Van Grimbergen she was not using drugs and DCYF unfairly targeted her because of her history. The mother later changed her story and disclosed she had recently used cocaine, but insisted that her ingestion of the drug should

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not concern anyone. On September 29, C.V.I. disclosed to DCYF social service specialist Matteah Keller the former’s concern about her mother’s drug use.

Jessica Richter testified to the results of the mother’s UA testing collected on October 4, 2022. The test results confirmed use of amphetamine and methamphetamine. The mother tested positive for fentanyl in a November 22, 2022 UA test.

During the fact-finding hearing, the mother testified about her substance use:

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RP at 499-500, 526.

At the fact-finding hearing, social worker Jessica Richter of SPARC testified to multiple unsuccessful and some successful attempts to contact mother. On one occasion, Richter contacted the mother and handed her a packet containing a list of community resources to assist her, but the mother declined to take possession of the packet. Richter discussed in-home parenting services with the mother. The mother sometimes responded to offers of assistance: “‘I don’t need the Department. I won’t be involved. This is harassment.’” RP at 350.

Mattie Keller, the DCYF social service specialist, averred:

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RP at 398-99 (emphasis added).

Robin Haskell, the Cheyenne River Sioux Qualified Expert Witness (QEW), testified at the dependency fact-finding hearing. Haskell declared:

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RP at 489 (emphasis added).

PROCEDURE

On September 16, 2022, DCYF filed the pending dependency petitions for C.J.J.I. and R.R. DCYF alleged the children lack a capable parent because of the mother’s substance use, mental health, exposing the children to unsafe individuals, domestic violence between the mother and her boyfriend Jeffrey Shawn Nason, and the mother’s failure to adequately supervise her children. DCYF took the two younger children in custody the same day.

At a September 20, 2022 shelter care hearing, the juvenile court ordered that C.J.J.I. and R.R. be returned home to the mother. The mother agreed to participate in a chemical dependency assessment and any recommended treatment, random UA testing, medication management, mental health treatment, and domestic violence prevention services. The mother signed releases for information.

On September 21, 2022, DCYF filed a dependency petition for the oldest child, C.V.I. DCYF did not then take custody of C.V.I. At some unidentified date, either before or after September 21, C.V.I. began staying overnight with a friend. The juvenile court conjoined all three dependency actions.

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On September 29, the mother hit C.J.J.I. with a fist. The mother and son sat on a couch and argued with one another. Mother cautioned C.J.J.I.:

“If you don’t shut the fuck up, I’ll beat the shit out of you.” RP at 380-81. The mother then struck her son multiple times. The blows left no bruises on the son’s body.

On September 30, 2022, DCYF, with dependency petitions previously filed for all three children, filed an emergency motion to place all three children in out-of-home care. A declaration from DCYF social worker Beth Willey accompanied the motion. In response to the motion, the juvenile court conducted a hearing on the afternoon of September 30. The clerk’s papers and the resultant order do not label the hearing as a shelter care hearing, but rather an emergency dependency hearing on a motion to remove children from the home. The courtroom minutes show that the juvenile court entertained argument of counsel, but they do not show whether the court heard testimony from witnesses. The juvenile court granted the emergency motion and ordered all three children removed from the mother’s home. To repeat, C.V.I. already lived elsewhere.

On September 30, 2022, the juvenile court signed an order for removal from the mother’s home. The order’s findings declared in part:

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Clerk’s Papers (CP) at 232 (emphasis added).

Two months later, on November 29 and 30 and on December 6, 2022, the juvenile court conducted a dependency fact-finding hearing.

When ICWA or WICWA applies to a child, DCYF must show it exerted active efforts to prevent a breakup of the family and to return the Native American children to their parents. At the dependency hearing, the mother argued that DCYF had not engaged in the active efforts. During the fact-finding trial, the mother’s counsel asked Jessica Richter, of SPARC, regarding DCYF’s active efforts to keep the mother and her children together. The questioning elicited an objection from the State’s counsel:

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RP at 349. Richter then testified to the mother’ resistance to assistance.

After Indian expert Robin Haskell broached the subject of active efforts during her testimony at the fact-finding hearing, the mother’s counsel focused on active efforts, which elicited another objection from the State’s attorney. This time, however, the juvenile court sustained the objection.

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RP at 489-92.

Next the mother’s counsel asked Robin Haskell about the possibility of imminent physical damage or harm to the children when removed in September. The State’s counsel objected on relevance grounds, and the court sustained the objection.

On December 13, 2022, the court issued an oral ruling granting the State’s request for a dependency for all three children. The juvenile court made no mention then of active efforts by DCYF to prevent the family breakup.

On January 27, 2023, the juvenile court entered an order confirming its oral ruling. At the beginning of the written order, the juvenile court wrote:

CP at 972.

The dependency order included findings of fact, based on testimony at the dependency hearing, which we quote in part. More findings of fact are quoted in Appendix A.

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CP at 973-88 (emphasis added).

The juvenile court conducted a disposition hearing on January 27, 2023. In advance of the hearing, Robin Haskell, the Tribe’s QEW, submitted a written declaration that read in part:

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CP at 956-57 (emphasis added). Haskell’s declaration did not list any of the purported active efforts.

During the disposition hearing, the mother objected to the delays in the proceedings. The mother highlighted that the dependency fact-finding hearing occurred 74 days after removal and was broken up into many days. The disposition hearing occurred on January 27, 2023, 135 days after removal.

Also, during the disposition hearing, the mother contended that DCYF had failed to exert active efforts. She emphasized that DCYF did not offer mental health services, domestic violence services, or transportation services despite the mother’s car sometimes being inoperable. DCYF did not offer assistance with housing despite the mother occasionally reporting difficulty with management at Catholic Charities and with other tenants bothering her and her family.

At the disposition hearing, Robin Haskell testified contrary to her testimony in her declaration regarding DCYF’s active efforts:

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RP at 571-73 (emphasis added).

In her oral ruling after the disposition hearing, the juvenile court commented:

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RP at 606.

At the conclusion of the disposition hearing, the juvenile court ruled that the children would remain outside the home during the dependency. On February 21, 2023, the court entered the following findings, in part:

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CP at 1312-13, 1318 (underlining in original) (emphasis added).

LAW AND ANALYSIS

Active Efforts

On appeal, the mother contends that the juvenile court, at every hearing, needed to find that DCYF exerted “active efforts” to prevent the breakup of her family. The mother also contends the court erred when finding a manifest danger of serious abuse or neglect if the children are returned home. Finally, the mother assigns error to numerous predicate findings of fact in the disposition and dependency orders.

Despite first broadly asserting that the juvenile court failed to enter a finding of active efforts at every hearing during the dependency proceeding, the mother focuses on a failure to enter a finding at the completion of the dependency hearing. The State agrees that the juvenile court did not find, at the dependency hearing, that DCYF engaged in active efforts. According to the State, the court need not have entered a finding then because the court did not decide placement at the time of adjudging dependency. As the argument continues, active efforts became relevant only during the disposition hearing. We agree with the mother.

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The federal Indian Child Welfare Act and a state analog act, the Washington Indian Child Welfare Act, created the concept of “active efforts.” Our opinion does not focus on the nature of active efforts, but rather at what hearings must the juvenile court find DCYF exercised active efforts.

The United States Congress enacted ICWA in 1978 because of the disproportionately high rate of forced removal of Native American children from their traditional homes and their Native American cultures. Genocide by violence and disease did not suffice. European Americans also insisted on cultural genocide by stealing Native American children. Before enactment of ICWA, states forcibly removed as many as 35 percent of all Indian children, mostly from intact American Indian families with extended family networks, and placed them in predominantly non-Indian homes, which had no relation to American Indian cultures. 25 U.S.C. § 1901(4); Troy R. Johnson, The State and the American Indian: Who Gets the Indian Child?, 14 WICAZO SA REV. 197, 208 (1999). The per capita rate of Indian children in foster care was fifteen times higher than the rate for non-Indians. 25 U.S.C. § 1901(4); H.R. REP. NO. 95-1386, at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531. The removal demonstrated a lack of understanding by child welfare workers of the role of extended families in tribal culture and threatened tribal survival by removing children at such a high rate. The process damaged the emotional lives of Native American children, who lost touch with their

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people and culture. RED POWER: THE AMERICAN INDIANS’ FIGHT FOR FREEDOM 124 (Alvin M. Josephy Jr. et al. eds., 2d ed. 1999).

Congress deemed the interests of tribal stability as important as the best interests of the child. RED POWER, supra, at 124. Congress also concluded that the best interests of Native American children did not necessarily echo the best interests of non-Native American children, since the former traditionally enjoy larger extended families and tribal relationships in their culture. B.J. JONES, MARK TILDEN & KELLY GAINES-STONER, THE INDIAN CHILD WELFARE ACT HANDBOOK: A LEGAL GUIDE TO THE CUSTODY AND ADOPTION OF NATIVE AMERICAN CHILDREN 12-13 (2d ed. 2008).

After adoption by the United States Congress of ICWA, the Washington State Legislature passed its own version of the act. Both the federal act and the state act overlap in their provisions. Washington courts interpret the acts as analogous and conterminous unless one provides greater protection, in which case the more protective act will supplant the less protective act. 25 U.S.C. § 1921; In re Dependency of J.M.W., 199 Wn.2d 837, 844, 514 P.3d 186 (2022); In re Adoption of T.A.W., 186 Wn.2d 828, 844, 383 P.3d 492 (2016).

When Indian children are the subjects of a proceeding, ICWA and WICWA impose more exacting requirements on DCYF than in other cases. In re Adoption of T.A.W., 186 Wn.2d 828, 841 (2016). Important here, ICWA and WICWA require the

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Department to engage the parent in active efforts at family preservation. 25 U.S.C. § 1912(d); RCW 13.38.130(1); In re Dependency of J.M.W., 199 Wn.2d 837, 840 (2022); In re Dependency of G.J.A., 197 Wn.2d 868, 875 (2021). In a non-WICWA setting, DCYF need only exert reasonable efforts. The active efforts requirement benefits not only the Indian family, but also implicates the tribe’s rights. In re Dependency of G.J.A., 197 Wn.2d 868, 909 (2021). Active efforts protect “the rights of tribes to continue to exist and protect the next generation.” In re Dependency of G.J.A., 197 Wn.2d 868, 909 (2021).

We quote sections of ICWA and WICWA which help to identify the hearings at which the State must establish its exertion of active efforts to prevent a family breakup. 25 U.S.C. § 1912(d), a portion of ICWA, pronounces:

(Emphasis added) (boldface omitted). 25 U.S.C. § 1903(1) defines “foster care placement:”

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RCW 13.38.130(e) and RCW 13.38.040(3), critical fragments of WICWA, mirror the ICWA provisions. The former reads:

(Emphasis added.) The latter statute declares:

(Emphasis added.) WICWA adds a section not found in ICWA. RCW 13.38.040(1)(a) reads:

(Emphasis added.) Thus, under WICWA, the State must show “active” work, if not active efforts, not only when it seeks to remove the children from home, but also in any proceeding in which it seeks to continue out-of-home placement.

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To reiterate, RCW 13.38.130(e) demands that DCYF show it employed active efforts to prevent a family breakup before any “involuntary foster care placement.” RCW 13.38.040(3)(a) defines a “foster care placement” as “any action removing an Indian child from his or her parent.” Based on a reading of the two statutes, the State argues that the law does not demand a finding of active efforts at every hearing during the dependency process. According to the State, ICWA and WICWA’s active efforts requirement is triggered by the type of placement sought, rather than the type of hearing held. In so arguing, the State does not recognize that RCW 13.38.040(1)(a)(ii) demands that the State show “active” work with the parent in any dependency proceeding, in which the State seeks “continued out-of-home placement.”

The Washington Supreme Court has rejected the State’s position, in situations during which a child will remain outside the home, based on the patent terms of RCW 13.38.040(1)(a)(ii). In re Dependency of G.J.A., 197 Wn.2d 868, 875(2021), the high court wrote:

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WICWA, unlike ICWA, requires the dependency court to enter a finding at every hearing when the Indian child resides out of the home.

In In re Dependency of G.J.A., 197 Wn.2d 868 (2021), the juvenile court terminated the mother’s rights to all children after finding that DCYF engaged in active efforts. The five children were affiliated with the Blackfeet Nation. DCYF argued that the mother’s appeal was moot because the court found the Department made active efforts before and after a five-month time period on which the mother focused. The mother did not challenge the findings of active efforts outside of this five-month window of time. The Supreme Court held that whether DCYF exerted active efforts during other time periods did not dispense of its obligation during the time referenced by the parent. Because DCYF must provide consistent active efforts, the juvenile court must review the Department’s actions at every hearing when 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.

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The State deems In re Dependency of G.J.A. friendly because the case involved a finding of active efforts at the termination stage. The Supreme Court, in Dependency of GJA, did not limit its ruling to a termination case, or even a disposition hearing.

In re Dependency of J.M.W., 199 Wn.2d 837 (2022), concerned two shelter care hearings that happened shortly after J.M.W. was placed into foster care. The Supreme Court held that the juvenile court must assess whether DCYF engaged in active efforts at the time of the shelter care hearing since such a hearing occurs in the context of a dependency and child custody proceeding under RCW 13.38.040(3) and under the rubric of a foster care placement according to RCW 13.38.040(1)(a) and .040(3)(a). The Supreme Court analyzed RCW 13.38.040 and other sections of WICWA. The court wrote that “child custody proceedings” included foster care placements. RCW 13.38.040(3)(a). “Foster care placement” means “any action removing an Indian child from his or her parent . . . for temporary placement . . . where the parent or Indian custodian cannot have the child returned upon demand.” RCW 13.38.040(3)(a).

The Washington Supreme Court, in In re Dependency of J.M.W., further observed that RCW 13.38.040(1)(a) declares that “[a]t a minimum,” the department must take timely and diligent efforts as part of its active efforts. Other portions of WICWA insist that active efforts be expended when possible. RCW 13.38.130(1), for example, says:

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(Emphasis added.) Thus, DCYF held the obligation to apply active efforts to the family before removing the child from his home and initiating a dependency. The active efforts included timely and diligent efforts.

In In re Dependency of J.M.W., the juvenile court made a finding of active efforts at the initial shelter care hearing. The court did not make this finding at a later shelter care hearing but, instead, concluded that “‘there ha[d] been no change in circumstances since the shelter care hearing on September 27, 2019.’” In re Dependency of J.M.W., 199 Wn.2d 837, 843-44 (2022) (citation omitted). The juvenile court thereby committed error. RCW 13.38.140(2) requires an express finding. Since DCYF had not established it had made active efforts between the time of the initial shelter care hearing and the second shelter care hearing, J.M.W. should have been returned to his parents unless the department had established doing so would have subjected him “to substantial and immediate danger or threat of such danger.” RCW 13.38.160.

In In re Dependency of A.T., 29 Wn. App. 2d 687, 541 P.3d 1079 (2024), an appeal from an order of dependency, this court held that the juvenile court erred when finding DCYF engaged in active efforts. Although the juvenile court had also conducted the disposition hearing by the time of the appeal, this court did not suggest that WICWA only required a finding of active efforts at the disposition hearing.

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Assuming the juvenile court need not assess active efforts at the dependency hearing, such a rule might assume that the disposition hearing will follow immediately. RCW 13.34.110(4) prescribes:

(Emphasis added.)

The State also contends that RCW 13.34.130 dictates that the juvenile court not make any placement decision or active efforts finding before the disposition hearing. The opening to RCW 13.34.130, a statute that applies to all dependency proceedings, not just Indian children proceedings, declares:

RCW 13.34.130 does not expressly preclude a finding of active efforts during the dependency fact-finding hearing. Regardless, the court makes a disposition ruling, albeit

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temporarily, at the shelter care hearing, which can be modified at any time. No statute specifically prevents the court from returning the child to the home immediately on conclusion of the dependency action. As the juvenile court recognized, if the court does not order a dependency, the children go home. By implication, the State seeks to continue the out-of-home placement at the dependency hearing.

As noted by the State, DCYF, under federal regulations, possesses no duty to take active efforts before removing a child from a parent’s home. In re Dependency of J.M.W., 199 Wn.2d 837, 847 (2022). Washington has not adopted similar regulations, and Washington state law provides stronger protections for families. In re Dependency of J.M.W., 199 Wn.2d 837, 847 (2022). We interpret WICWA in light of its overriding legislative purpose: to avoid the breakup of Native families. In re Dependency of J.M.W., 199 Wn.2d 837, 847 (2022). Also, the Bureau of Indian Affairs, despite the federal regulations, recommends the court “inquire about active efforts at every court hearing and actively monitor compliance with the active efforts requirement.” BIA, U.S. DEP’T

OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT 43

(2016) (hereinafter BIA GUIDELINES) (emphasis added).

Washington statutes and case law emphasize the imperative of active efforts and encourages monitoring of active efforts by the juvenile court at every opportunity. The duty to engage in active efforts begins before removal of the children from their home.

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In re Dependency of A.T., 29 Wn. App. 2d 687 (2024). Once the State files a dependency action, the state agency must engage in active efforts to reunite the family if the children remain outside the home. In re Dependency of G.J.A., 197 Wn.2d 868, 887 (2021). Key to “active efforts” is the department’s duty to actively engage the parent in a thorough and timely manner to help reunify the Indian family. In re Dependency of G.J.A., 197 Wn.2d 868, 873-75, 888, 891 (2021). DCYF must 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. In re Dependency of A.L.K., 196 Wn.2d 686, 704, 478 P.3d 63 (2020). The dependency court has the responsibility to evaluate active efforts at every dependency proceeding when the child is placed out of the home. RCW 13.38.040(1)(a)(ii). Any delay in adequately engaging the parent only accelerates the destruction of the Native family’s cultural identity and ties to their community. In re Dependency of G.J.A., 197 Wn.2d 868, 888 (2021).

We ruminate on reasons for demanding an adjudication of active efforts at every hearing, including the dependency hearing. The law wishes to rectify centuries of horrific treatment of Native Americans and the unjustified removal of Indian children from their family and their Native American nation. Even today, a bias lingers that leads to unduly high numbers of Native American children being removed from home and kept

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from parents and their community. Therefore, the law demands continuous and extraordinary efforts before and after removing an Indian from his or her home and family. The court should monitor those extraordinary efforts at every opportunity. The Washington Supreme Court deems active efforts so important that it has held the futility doctrine, applied in almost all, if not all, other areas of the law, inapplicable in an Indian Child welfare proceeding. In re Dependency of G.J.A., 197 Wn.2d 868, 903 (2021).

The mother’s children’s dependency proceeding suffered substantial delays as recognized by the juvenile court’s apology to the mother. One hundred and thirty-five days elapsed from the removal of the children on September 30, 2022 and the disposition hearing on January 27, 2023. On September 30, the court entered a finding of active efforts. Nevertheless, during the 135-day delay, the children remained placed outside the home despite no additional finding by the juvenile court that DCYF continued to exert active efforts. The mother’s disposition hearing occurred on January 27, 2023, 52 days after the last testimony in the dependency fact-finding hearing on December 6 and 45 days after the court’s oral ruling of dependency on December 18.

The juvenile court signed the order of dependency on January 27, the day the disposition hearing commenced. Thus, the State may argue that the disposition hearing commenced immediately after the ending of the dependency hearing. But testimony ended on December 6, and the juvenile court issued its oral ruling on December 13. The

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purpose of conducting the disposition hearing immediately after the dependency hearing is to hurry the process that concerns the well-being of children. By the end of testimony at the dependency hearing, 67 days had passed since the only finding of active efforts. By the oral announcement of the dependency ruling, 74 days had passed since the only finding of active efforts. By the time of the disposition hearing, 129 days had passed since the only finding of active efforts.

We address some anomalies found in this dependency proceeding. This appeal’s circumstances include the mother, who opposed the dependency, being non-Indian, and the Indian father of the oldest two children declining to participate in this proceeding after never having engaged in fathering the children. To our knowledge, no Native American nation or Native American family seeks custody of the two children. Nevertheless, the terms of ICWA and WICWA apply when a child is Indian regardless of any lack of participation from the Indian parent or the parent’s tribe. 25 U.S.C. § 1903(4); RCW 13.38.040(7). ICWA seeks in part to impart the unique values of Native American culture to each Indian child regardless of the participation of the Indian parent. In re Jeremiah G., 172 Cal. App. 4th 1514, 1520, 92 Cal. Rptr. 3d 203 (2009).

The youngest child of the mother is non-Indian. Thus, ICWA and WICWA should not apply to R.R. No party, however, suggests in its or her brief that different rules apply to R.R.

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REMEDY

The dependency court may impose a dependency on an Indian child without a finding of active efforts in limited circumstances. Since the State must exert active efforts only to justify out-of-home placement, the court may order a dependency with the child residing at home. Alternatively, the court may order an out-of-home dependency if DCYF shows that return home “would subject the children to substantial and immediate danger or threat of danger.” 25 U.S.C. § 1920; RCW 13.38.160; In re Dependency of A.L.K., 196 Wn.2d 686, 690-91, 703 (2020).

After the disposition hearing, the trial court entered finding of facts U and W, which declared that DCYF engaged in active efforts. In addition, the court entered finding of fact Q, which reads “The children are at imminent risk of physical damage or harm and substantial and immediate danger or threat of such danger should they be returned to [the mother’s] care.” One might argue that these findings rectify the failure of the trial court to decide, at the dependency hearing, whether DCYF exerted active efforts because it later entered such a finding. Also, based on finding of fact Q, the children could not be returned home regardless of active efforts.

We disagree with these arguments. A substantial delay occurred between the ending of the dependency hearing and the disposition hearing. A late finding thwarts the goal of constant monitoring by the court of active efforts. If the court had reviewed

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active efforts at the dependency hearing and found the efforts wanting, DCYF may have then employed plentiful, if not unending, efforts to reunite the family by the time of the disposition hearing such that returning the children home would not have endangered or threatened to endanger the children’s safety.

Because of the importance of continuing active efforts, we could remand for the trial court to reconstruct whether or not DCYF had expended active efforts as of December 6, the last day of the dependency hearing. But such a reconstruction would be difficult, if not impossible, because of the passage of time. The court will not order an impractical or unworkable remedy. Dix v. ICT Grp., Inc., 160 Wn.2d 826, 840 n.8, 161 P.3d 1016 (2007); Northwest Animal Rights Network v. State, 158 Wn. App. 237, 244 n.6, 242 P.3d 891 (2010); Proctor v. Huntington, 146 Wn. App. 836, 851, 192 P.3d 958 (2008), aff’d, 169 Wn.2d 491, 238 P.3d 1117 (2010). Nevertheless, because the dependency will continue on remand, we direct the trial court to promptly review again DCYF’s efforts and determine whether the efforts pass muster as active efforts under ICWA and WICWA.

The mother challenges the sufficiency of evidence to support a finding of danger to her children. Because we direct the trial court, on remand, to promptly assess active efforts, we also direct the court, if DCYF did not exert active efforts, to either return the children to their home or conduct an evidentiary hearing and, based on the evidence, find

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that return to the home would subject the children to substantial and immediate danger or threat of such danger.

CONCLUSION

We remand to the superior court for further action in the dependency proceeding. The trial court shall, within ten days of the issuance of our mandate, again address whether DCYF has engaged in active efforts. If DCYF has not, the court should either return the children to their home or enter a finding of a substantial and immediate danger or risk of danger to the children if returned home.

Fearing, J. WE CONCUR: Pennell, J. Staab, A.C.J.

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APPENDIX A

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CP at 975-88 (emphasis added).

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APPENDIX B

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CP at 1315-18.