In re D.J.S.

• Decision Date: 28 January 2020
• Docket Number: No. 36423-2-III,36423-2-III
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the Parental Rights to D.J.S.

456 P.3d 820

In the MATTER OF the Parental Rights to D.J.S.

No. 36423-2-III

Court of Appeals of Washington, Division 3.

FILED JANUARY 28, 2020

Lise Ellner, Attorney at Law, Po Box 2711, Vashon, WA, 98070-2711, Erin Cheyenne Sperger, Erin Sperger PLLC, 1617 Boylston Ave., Seattle, WA, 98122-6729, for Appellant.

Stephen Michael Bozarth, Office of the Attorney General, 139 S Worthen St. Ste. 100, Wenatchee, WA, 98801-3890, for Respondent.

PUBLISHED OPINION

Fearing, J.

¶1 Appellant James Smith is an enrolled member of the federally recognized Oglala Sioux Tribe, formerly known as the Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota. Smith contends that the Washington State Department of Social and Health Services (DSHS) failed to offer all ordered services and failed to engage in "active efforts," as demanded by the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 - 1963, and the Washington State Indian Child Welfare Act (WICWA), chapter 13.38 RCW, before terminating Smith’s parental rights to his son, Dennis. We agree with both contentions. We do not reverse the termination based on the failure to offer ordered services since the trial court, based on substantial evidence, found that the services would be futile. We reverse and remand to the trial court to determine if active efforts would be futile.

FACTS

¶2 James Smith (Smith) appeals the termination of his parental rights to his son, Dennis Smith (Dennis). Smith, who resides in Wenatchee, is a member of the Oglala Sioux Tribe. The child’s mother, Donna Quayle, voluntarily relinquished her rights to Dennis. We employ pseudonyms for the father, mother, and child.

¶3 We take our facts from the parental termination trial. Before the birth of Dennis, James Smith helped raise another son until the child reached three years of age. That son is now in his 20s. Smith also assisted in raising his girlfriends’ toddlers and a sister’s son.

¶4 In November 2015, medical personnel found Donna Quayle unconscious after a seizure. Medics transported Quayle to Central Washington Hospital in Wenatchee, where hospital staff discovered Quayle to be pregnant. High blood pressure

and pre-eclampsia caused the seizure and a mild stroke. Quayle was airlifted to the University of Washington Medical Center in Seattle.

¶5 On November 13, 2015, University of Washington physicians performed an emergency caesarean section

on Donna Quayle. Doctors delivered Dennis after twenty-five weeks gestation. Dennis weighed 1 pound, 11.5 ounces at birth. Quayle and Dennis tested positive for Suboxone and amphetamines at the time of Dennis’s birth, but Quayle denied any drug use.

¶6 Dennis spent seventy to seventy-five days in the University of Washington hospital before his release to foster parents. During his hospitalization, Dennis required a jet ventilator

, oxygen, and a feeding tube. Dennis now suffers from a low white blood cell count, possibly a genetic condition. Dennis cannot see straight even with glasses.

¶7 During hospitalization of Dennis, University of Washington staff unsuccessfully attempted to engage James Smith in services and visitation with Dennis. Despite unemployment and despite being afforded free housing, transportation, and meals throughout Dennis’s hospital stay, Smith did not visit Dennis on a regular basis or for any extended amount of time. Smith demonstrated angry and violent behavior toward hospital staff and accused staff of choking Dennis. While at the university hospital, Smith repeatedly appeared agitated, displayed jittery movements and rapid speech, and encountered difficulty completing full sentences. In January 2016, hospital security intervened when Smith threatened to kill a nurse. During Dennis’s hospital stay, Smith was scheduled to provide a urinalysis sample at Care Plus Medical Center, but he refused.

¶8 According to James Smith, he participated, along with Donna Quayle, in a parenting class at the University of Washington hospital. We do not know the nature or length of the class.

¶9 James Smith claims that DSHS removed Dennis from Dennis’s Native American family home at Dennis’s birth. The facts show, however, that Dennis never lived at his father’s home or with his father’s Native American nation.

¶10 Following two months of hospitalization, Dennis entered a foster home, where he continued to live at the time of the termination trial. On January 25, 2016, DSHS filed a dependency petition for Dennis. DSHS deemed neither parent capable of caring for Dennis. DSHS concluded that Donna Quayle actively abused illegal drugs.

¶11 Because James Smith is a member of the Oglala Sioux Tribe, Smith’s son Dennis is eligible for enrollment in the Native American nation. DSHS sent at least three letters to the Oglala Sioux in 2016 and 2017 about James and Dennis Smith, but received no response.

¶12 On February 29, 2016, James Smith stipulated to the dependency of Dennis. By order dated March 9, Smith agreed to participate in, and the court directed DSHS to provide a drug and alcohol abuse evaluation and treatment, random urinalyses, a parenting assessment and education, education on Dennis’s special needs, a domestic violence evaluation and treatment, a psychological assessment, and housing. The services addressed deficiencies identified by the assigned DSHS social worker, Darin Petersen.

¶13 Social worker Darin Petersen identified substance abuse as James Smith’s primary deficiency that prevented him from safely parenting Dennis. DSHS’s Indian child welfare expert, Brandy West, also identified substance abuse as the primary obstacle to Smith’s ability to parent. Smith admitted to methamphetamine use and acknowledged a need for treatment. Petersen recommended a mental health assessment because a mental health illness often accompanies drug use.

¶14 Darin Petersen recommended a domestic violence perpetrator’s assessment for James Smith because of an order preventing Smith from contact with his mother due to domestic violence. Smith alternatively lived with his mother and couch surfed at friends’ residences. We do not know why Smith periodically resided at his mother’s dwelling if an order enjoined contact with her.

¶15 The dependency court conducted periodic review hearings throughout the dependency. James Smith attended the first dependency review hearing on June 1, 2016. During the review hearing, the court found that DSHS asserted active efforts to engage the parents in services. The dependency court also found that Smith failed to progress in services.

¶16 DSHS attempted contacts with relatives of James Smith to assess whether DSHS could place Dennis with a relative. According to Darin Petersen:

MR. BOZARTH [State’s counsel]: Mr. Petersen, um at the time after the child was removed, did you make an attempt to address finding family placements for this child?

MR. PETERSEN: We did, yes.

MR. BOZARTH: And who—who did Mr. [Smith] identify?

MR. PETERSEN: Mr. [Smith’s] mother Deborah Horner and his sister, I don’t recall his sister’s name.

MR. BOZARTH: And were attempts made to contact them with regards to any desire to parent the child?

MR. PETERSEN: There was, yes.

MR. BOZARTH: Did either of them ever express a desire to have placement of the child?

MR. PETERSEN: Neither of them ever responded to our inquiries.

1 Report of Proceedings (RP) at 102. We do not know the nature of the DSHS inquiries. We do not know at what address or phone number DSHS contacted the relatives and whether DSHS had accurate information as to the relatives’ contact data. DSHS presented no other evidence of efforts to contact James Smith’s Native American family.

¶17 On September 19, 2016, Wenatchee’s Center for Alcohol and Drug Treatment chemical dependency professional Neddy Leppanen evaluated James Smith. Leppanen found Smith severely dependent on methamphetamine and alcohol, and moderately dependent on cannabis. Leppanen recommended Smith undergo a month of intensive inpatient treatment due in part to earlier treatment attempts. Leppanen did not consider Smith’s Native American background when evaluating his chemical dependency and did not investigate culturally sensitive treatment options for Smith. Smith began inpatient treatment at the Center for Alcohol and Drug Treatment in Wenatchee on the same day as his evaluation. DSHS does not know the background and experience held by the center in treating Native Americans.

¶18 During the first week of intensive inpatient treatment at the Center for Alcohol and Drug Treatment, James Smith’s condition improved. Nevertheless, by October 4, Smith exhibited erratic behavior, rapid speech, defiance, and disobedience of center guidelines. Because of the rapid speech, the treatment center ordered two urinalyses, both which tested negative. Based on Smith’s erratic behavior, the center caused a mental health provider to conduct an assessment on October 6. Smith agreed to participate in the evaluation, but terminated the evaluation after ten minutes and demanded an attorney.

¶19 During his time in treatment, Center for Alcohol and Drug Treatment program staff discovered controlled substances in James Smith’s housing unit, and, on October 6, 2016, staff confronted Smith about the contraband. An angry Smith left the center and ended his treatment. Smith believed that center staff endangered his safety by asking him to snitch on other patients. Although DSHS repeatedly informed Smith that his substance abuse prevented his parenting Dennis, Smith refused to participate in further substance abuse treatment.

¶20 DSHS social worker Darin Petersen referred James Smith to random urinalyses services. Petersen explained to Smith the urinalysis process. Smith refused random urinalyses.

¶21 Social worker Darin Petersen met with James Smith fifteen to twenty times throughout the dependency at the DSHS office. Early in the dependency, Darin Petersen met monthly with Smith. When Smith later encountered legal troubles, the frequency of visits waned. Petersen discussed mental health...