Dep't of Children, Youth, & Families v. Greer (In re Dependency of Z.J.G.), No. 98003-9

CourtUnited States State Supreme Court of Washington
Writing for the CourtMONTOYA-LEWIS, J.
PartiesIn the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children DEPARTMENT OF CHILDREN, YOUTH, & FAMILIES Respondent, v. SCOTT JAMES GREER, Appellant
Decision Date03 September 2020
Docket NumberNo. 98003-9

In the Matter of the Dependency of Z.J.G. and M.E.J.G., minor children


No. 98003-9


September 3, 2020


MONTOYA-LEWIS, J.—In Native American communities across the country, many families tell stories of family members they have lost to the systems of child welfare, adoption, boarding schools, and other institutions that separated Native children from their families and tribes. This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones. There are virtually no other statutes more central to rectifying these

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wrongs than the Indian Child Welfare Act (ICWA)1 or state statutes like ICWA's Washington counterpart, the Washington State Indian Child Welfare Act (WICWA).2

ICWA and WICWA were enacted to remedy the historical and persistent state-sponsored destruction of Native families and communities. These are baseline protections, passed as a step toward rectifying the horrific wrongs of widespread removal of Native children from their families and states' consistent failure to provide due process to tribes. The acts provide specific protections for Native children in child welfare proceedings and are aimed at preserving the children's relationships with their families, Native communities, and identities. The acts also require states to send notice to tribes so that tribes may exercise their independent rights and interests to protect their children and, in turn, the continuing existence of tribes as thriving communities for generations to come.

During a child custody proceeding, if a court has a "reason to know" that the child at issue is an Indian3 child, it must apply the protections of ICWA and WICWA. 25 U.S.C. § 1912(a); RCW 13.38.070(1); 25 C.F.R. § 23.107(b)(2). The "reason to know" finding performs a critical gatekeeping function. It ensures that

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the court applies the heightened ICWA and WICWA standards early on in any proceeding and ensures that tribes receive adequate notice of the proceeding in order to protect their children and the tribes' sovereign interests. The purposes of ICWA and WICWA require their correct application to advance and realize their promises.

At issue in this case is whether the court had "reason to know" that M.G and Z.G. were Indian children at a 72-hour shelter care hearing. We hold that a trial court has "reason to know" that a child is an Indian child when a participant in the proceeding indicates that the child has tribal heritage. We respect that tribes determine membership exclusively, and state courts cannot establish who is or is not eligible for tribal membership on their own. Further, we follow the canon of construction for interpreting statutes that deal with issues affecting Native people and tribes, which requires that we construe these statutes in favor of the tribes. Finally, we are bound by the statutory language and implementing regulations of ICWA and WICWA, and we interpret these acts to serve their underlying purposes. Given these guiding principles, we hold that an indication of tribal heritage is sufficient to satisfy the "reason to know" standard.

Here, participants in a shelter care hearing indicated that M.G. and Z.G. had tribal heritage. The trial court had "reason to know" that M.G. and Z.G. were Indian children, and it erred by failing to apply ICWA and WICWA standards to the proceeding. We reverse.

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A. Factual Background

On June 27, 2018, the Kent Police Department removed minor children, Z.G. and M.G., from the care of their parents, S.G. (father) and L.G. (mother). The police took the children into protective custody due to concerns of neglect and unsanitary living conditions. At the time, Z.G. was 21 months old, and M.G. was 2 years old. On June 29, 2018, the Department of Children, Youth, and Families (the Department) filed dependency petitions for Z.G. and M.G. In the petitions, the Department stated:

Based upon the following, the petitioner knows or has reason to know the child is an Indian child as defined in RCW 13.38.040 and 25 U.S.C. § 1903(4), and the Federal and Washington State Indian Child Welfare Acts do apply to this proceeding:

Mother has Tlingit-Haida4 heritage and is eligible for membership with Klawock Cooperative Association. She is also identified as having Cherokee heritage on her paternal side. Father states he may have native heritage with Confederated Tribes of the Umatilla in Oregon.

The petitioner has made the following preliminary efforts to provide notice of this proceeding to all tribes to which the petitioner knows or has reason to know the child may be a member or eligible for membership if the biological parent is also a member:

Inquiry to tribes has been initiated. Worker has called Central Council Tlingit Haida regarding this family and petition. Further inquiry and notification to tribes ongoing.

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Clerk's Papers (CP) at 2 (emphasis added).

On July 2 and 3, 2018, a shelter care hearing took place to determine whether the children could be immediately and safely returned home while the adjudication of the dependency was pending. RCW 13.34.065(1)(a). Richard Summers—the social worker who submitted the dependency petition—the father, and the mother all testified at the hearing. Summers testified first. The court began the inquiry by asking if the contents of the dependency petitions Summers submitted were correct. Summers responded that they were and testified that he wished to incorporate the contents of the petitions as part of his testimony. However, when asked whether the children qualified under WICWA, Summers responded, "To my knowledge, not at this time." 1 Verbatim Report of Proceedings (VRP) (July 2, 2018) at 11. The Department asked about Summers' investigation up to that point, and Summers detailed the efforts he had made in the last few days: "I called the Tlingit and Haida Indian tribes of Alaska, and they gave me information that the maternal grandmother is an enrolled member, but the mother is not enrolled, and the children are not enrolled. And to my knowledge, the father is not enrolled in a federally recognized tribe either." Id. at 11-12. During cross examination, Summers confirmed that in the dependency petition, he had indicated that the mother is eligible for tribal membership, and he also confirmed that it was possible the children were eligible for tribal membership.

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The father, S.G., testified that it was his understanding that the children's mother is of Central Council of the Tlingit and Haida Indian Tribes of Alaska (Tlingit & Haida) heritage and that she is eligible for tribal membership in the Klawock Cooperative Association of American Indians (KCA). He also testified that the mother has Cherokee heritage and that he has "native heritage with the confederated tribes of the Umatilla in Oregon." 2 VRP (July 3, 2018) at 67. The father testified that it was his understanding that his children were eligible for tribal membership.

The mother testified that she was eligible for tribal membership in Tlingit & Haida and that her children were also eligible for tribal membership in the same tribes. She also indicated that she was not an enrolled member of a federally recognized tribe at that time.

In its oral ruling, the court determined:

So just as a threshold issue, as far as the application of ICWA, based on testimony of the social workers, frankly, as well as the testimony of both the parents, I'm going to make a finding that ICWA does not apply to these cases at this point based on the evidence presented and the reasonable cause standard.

Id. at 118. The court went on to apply the non-ICWA emergency removal standard and found that the Department met its burden to show "that there's a serious risk of substantial harm to the boys in this case." Id. The court did not utilize the placement preferences outlined in ICWA and, instead, placed Z.G. and M.G. in licensed foster

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care, despite the availability of placements that were culturally appropriate.5 In the court's written shelter care order, the court found, "Based upon the following, there is not a reason to know the child is an Indian child . . . : Mother and father are not enrolled members in a federally recognized tribe. Maternal grandmother is enrolled member, Department continuing to investigate. Mother believes she's eligible for tribal membership." CP at 10.

After the children had been in licensed foster care for close to a month, on July 30, 2018, Tlingit & Haida successfully intervened in the case on behalf of KCA. KCA determined that M.G. and Z.G. are tribally enrolled members. The court later entered a dependency order as to the father's parental rights and, consistent with the tribal intervention, determined that there was "reason to know" Z.G. and M.G. were Indian children, and applied ICWA and WICWA. Id. at 19, 59.

B. Procedural History

The father moved for discretionary review of the shelter care order.6 The Court of Appeals commissioner granted review and found that although the father's

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appeal of the shelter care order was technically moot, the issues were of continuing and substantial public interest, so review was appropriate.7

The Court of Appeals affirmed the trial court's shelter care order, finding that the trial court had no "reason to know" the children were Indian children. In re Dependency of Z.J.G., 10 Wn. App. 2d 446, 450, 448 P.3d 175 (2019). The Court of Appeals reasoned that a trial court has "reason to know" a child is an Indian child when the court "receives evidence that the child is a tribal member or the child is eligible for tribal membership and a biological parent is a tribal member." Id. at 449. The court concluded that in this case, "at the time of the shelter care hearing, good

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faith investigation had not yet...

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