In re G.J.A.

• Decision Date: 24 June 2021
• Docket Number: No. 98554-5,98554-5
• Court: Washington Supreme Court
• Parties: In the MATTER OF the DEPENDENCY OF G.J.A., A.R.A., S.S.A., J.J.A., and V.A., Minor children.

489 P.3d 631

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

Supreme Court of Washington.

Argued February 11, 2021

Filed: June 24, 2021

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507-6490, for Petitioner.

Christopher Michael Jordan, Office of the Attorney General, 1116 W. Riverside Ave. Ste. 100, Spokane, WA, 99201-1113, Rachel Brehm King, Office of the Attorney General, 3501 Colby Ave. Ste. 200, Everett, WA, 98201-4795, for Respondent.

Alexandria Marie Hohman, The Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Wa Defender Association.

Robert S. Chang, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, for Amicus Curiae on behalf of Fred T. Korematsu Center for Law and Equity.

Sarracina Littlebird, Jennifer Masako Yogi, Attorneys at Law, 401 2nd Ave. S. Ste. 407, Seattle, WA, 98104-3811, for Amicus Curiae on behalf of National Indian Child Welfare Association.

Raquelle Myers, National Indian Justice Center, 5250 Aero Drive, Santa Rosa, CA, 95403, for Amicus Curiae on behalf of National Indian Justice Center.

Stacey Lara, University of Washington School of Law, 4293 Memorial Way Nw, Seattle, WA, 98195-0001, for Amici Curiae on behalf of Uw Tribal Court Public Defense Clinic, Legal Counsel for Youth and Children.

Tara Urs, La Rond Baker, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae on behalf of ICWA Law Center.

Aaron Lindstrom, Erika Weiss, Michael Boulette, Barnes & Thornburg LLP, 225 S. Sixth Street, Suite 2800, Minneapolis, MN, 55402, for Amicus Curiae on behalf of Michigan State Univ. the Indian Law Clinic.

Montoya-Lewis, J. ¶1 In 1978, Congress found "that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children" and "that the States ... have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."¹ 25 U.S.C. § 1901(3), (5). Through the Indian Child Welfare Act (ICWA), enacted by Congress in 1978, state courts and agencies are required to use "active efforts" to prevent the breakup of the Indian family. 25 U.S.C. § 1912(d). In 2016, the United States Department of the Interior, through the Bureau of Indian Affairs (BIA), issued regulations stating, in part, that "[a ]ctive efforts means affirmative, active, thorough, and timely efforts. " 25 C.F.R. § 23.2 (second emphasis added).

¶2 In 2020, in McGirt v. Oklahoma , Justice Gorsuch wrote on behalf of the United States Supreme Court, "On the far end of the Trail of Tears was a promise." ––– U.S. ––––, 140 S. Ct. 2452, 2459, 207 L. Ed. 2d 985 (2020). That promise included the assurance of land for those tribes forcibly removed from their homelands to resettle, in community, with their traditions, customs, languages, and families intact. Id. While McGirt analyzes the importance of treaties with respect to land, its commitment to holding us to our promises instructs us in this case, which has at its core the promise to keep Indian families intact and to do so affirmatively. However, the systemic destruction of Indian families persists to this day, despite the promises and statutory frameworks set out in ICWA and its state counterparts. For example, in Whatcom County, where Native people make up 3.4 percent of the county's population,² Native children make up 16 percent of children in state dependencies.³ Similar disproportionality exists throughout the state, even with the ongoing training and work by the Department of Children, Youth, and Families (Department) to reduce this disproportionality.

To quote Lummi Nation tribal member and former chairman Darrell Hillaire, "What about those promises?"⁴

¶3 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. 25 U.S.C. §§ 1901 - 1963 ; ch. 13.38 RCW. Among their many requirements, ICWA and WICWA mandate that the State provide "active efforts" to prevent the breakup of Indian families. 25 U.S.C. § 1912(d) ; RCW 13.38.130. Active efforts must be thorough, timely, consistent, and culturally appropriate. 25 C.F.R. § 23.2 ; RCW 13.38.040(1)(a). The "active efforts" requirement is distinct from the "reasonable efforts" requirement in non-Indian child custody cases because it requires both a higher level of engagement from the Department and culturally appropriate services. To ensure that the Department meets the minimum requirements of ICWA and WICWA, every dependency court that oversees cases involving Indian families has the responsibility to evaluate the Department's actions. WICWA requires the court 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. RCW 13.38.040(1)(a)(ii) ; BUREAU OF INDIAN AFFAIRS, U.S. DEP'T OF INTERIOR, GUIDELINES FOR IMPLEMENTING THE INDIAN CHILD WELFARE ACT 43 (2016) (hereinafter BIA GUIDELINES). If the Department's actions fall below ICWA and WICWA standards, the court must order the Department to do more to comply with its statutorily imposed obligations before the case can proceed to termination.

¶4 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." 25 U.S.C. § 1912(d) ; RCW 13.38.130(1). The Department has the burden to provide active efforts, and it also has the burden to prove that those efforts were in fact unsuccessful before the matter can proceed to termination. A parent's action, inconsistency, or inaction does not excuse the Department from providing active efforts.

¶5 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

¶6 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.

The dependency court also ordered the Department to provide visitation and established a visitation schedule. The Blackfeet Nation intervened.

¶7 C.A. asked the dependency court to find that the Department failed to provide active efforts from January through June 2019.⁵

¶8 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

¶9 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.

¶10 After this incident, C.A. communicated...