In re G.M.W.
| Decision Date | 31 October 2022 |
| Docket Number | 82918-1-I |
| Parties | In the Matter of the Dependency of: G.M.W., A Minor Child. |
| Court | Washington Court of Appeals |
The father of G.M.W. appeals an order denying his CR 60 motion to vacate a default order of dependency. He contends the Department of Children, Youth and Family (the Department) failed to serve him with the summons and dependency petition as required by RCW 13.34.070, RCW 4.28.080, and CR 4(c). He separately argues the trial court violated the Indian Child Welfare Act (ICWA)[1] and the Washington Indian Child Welfare Act (WICWA)[2] by failing to appoint an attorney to represent him before he appeared to request one. Finally, he contends the trial court failed to find that the Department engaged in active efforts to prevent the breakup of G.M.W.'s family.
We conclude the father was properly served with the summons and petition through substitute service under RCW 4.28.080(16) and that neither ICWA nor WICWA require the appointment of counsel until the parent appears, requests the appointment of counsel, and demonstrates indigency. Finally, we conclude the trial court made active effort findings at the dependency, disposition and first review hearings and that there is substantial evidence to support the court's findings. We therefore affirm.
On January 7, 2021, C.A., an enrolled member of the Upper Skagit Tribe (Tribe) gave birth to G.M.W. at Skagit Valley Hospital. The mother tested positive for opiates at the hospital and reported exposing G.M.W. to heroin and methamphetamine in utero. The mother reported using heroin up until three days prior to delivery. G.M.W. was born preterm at 35 weeks gestation after exposure to these substances throughout the mother's pregnancy during which she received no prenatal care.
The hospital notified the Department of G.M.W.'s birth on January 8, 2021. They reported that G.M.W. was showing signs of withdrawal, had "jerking movements" in his arms and was having a difficult time latching onto a bottle nipple. Department social worker Faber went to the hospital that day for an initial face-to-face visit, to gather information about G.M.W. and to engage the child's parents in services. Neither the mother nor father were present. The hospital informed Faber that the mother had visited the baby and assisted with a morning feeding but then left and did not return. Faber met with the child's pediatrician who reported he may need to administer morphine to G.M.W. to combat withdrawal symptoms.
The Tribe's social worker, Felice Keegahn, received an Intake Report regarding G.M.W. the same day. This report indicated that the mother had expressed an interest in parenting the child but had an appointment the following day at a drug treatment facility. Faber called Keegahn after she visited the hospital to provide a status report on the infant's medical condition and treatment. Keegahn informed Faber that both parents were enrolled members of the Tribe and that G.M.W. was eligible for enrollment as well.
On January 9, 2021, the hospital diagnosed G.M.W. with neonatal abstinence syndrome and oxygen desaturation. The baby's umbilical cord tested positive for both amphetamines and heroin.
The Department was aware that the mother had a lengthy history of heroin use that affected her ability to parent. The Department and the Tribe had worked with her for years to assist with her parenting of three other children, none of whom resided with the mother. Dependency proceedings were then pending for two of C.A.'s three children and the Department and Tribe's child protection team had attempted to engage the mother in drug treatment and mental health treatment since at least 2016.[3] According to the Department C.A. had demonstrated an inability to adequately assess the medical and dental needs of her other children and had been unable to maintain stable housing or provide food and clothing for them. By December 2020, just months before G.M.W.'s birth, the Department informed the court that the mother was not engaged in services, despite its efforts and those of the Tribe. She had not visited two of her three older children since the Department took them into care in 2016.
The Department had little information about G.M.W.'s father, G.W. It reported that he had two other children who resided with their mother, but it does not appear that these children were in dependency proceedings or that the father had ever been involved in receiving services through the Department. It determined that the father had past convictions for theft and pending criminal charges in superior court for identity theft, theft, and driving under the influence. The Tribe reported that the father was then facing additional charges in tribal court for assaulting a tribal officer, reckless endangerment, and possession of drugs and drug paraphernalia. The Department confirmed there were open arrest warrants for the father from both the superior and tribal courts.
Department social worker Nicole Patterson began working on G.M.W.'s case shortly after his birth. On January 11, 2021, she learned from the hospital social worker that the mother had come to the hospital to provide overnight feedings to G.M.W. and had an appointment that morning at Didgwàlic, a treatment facility. Patterson also learned that the father had been present at the hospital but was there much less frequently than the mother.
Also on January 11, 2021, Patterson attempted to reach both parents via telephone, at phone numbers listed in the department intake report, without success. She left a voice mail message for the father. She also searched Facebook and found five accounts in the father's name. She sent messages to each account with her contact information requesting that he contact her.
Patterson also attempted to reach the mother via her Facebook account. She submitted a referral to the Department's parent locator resource in an attempt to find a way to contact the father. Finally, she contacted the hospital social worker asking if the hospital could obtain updated contact information for the parents so she could invite them to a Family Team Decision Meeting (FTDM). The hospital social worker agreed to do so and also asked to have a nurse attend the FTDM.
Patterson called the hospital later that same day to check on G.M.W.'s status. The hospital reported that it had provided a room for the parents to stay in to facilitate bonding with the child, that neither parent was present, and that the father had not visited the child that day. G.M.W., then on morphine, was being weaned from the drug. Patterson asked the hospital staff to pass her contact information on to the parents and sent the nurse an invitation to the FTDM.
The social worker then noticed that the mother had read her Facebook message so she sent a second message notifying her of the Zoom FTDM that afternoon for 4 p.m. The hospital social worker contacted Patterson to provide an updated phone number for the mother but also reported that neither parent had been to the hospital that day. Patterson immediately texted the mother, using this updated phone number. The mother responded, indicating that she was at a methadone clinic in Anacortes, but she promised to call Patterson back when done. She did not do so. Patterson also sent invitations to the FTDM to both parents via text and Facebook. Throughout the day, Patterson collaborated with Keegahn via email and telephone in an attempt to locate the parents and determine how to proceed.
The Department conducted the FTDM via Zoom on the afternoon of January 11 as scheduled. The purpose of the meeting was to discuss safety concerns regarding the child's birth and his medical condition. Neither parent logged in for the meeting. Patterson texted the mother to ask if she needed help joining the meeting. The mother did not respond. At 6:45 p.m., the hospital notified Patterson that the mother had shown up at the hospital to visit G.M.W. but did not stay to feed the infant when asked by the nurse to do so. The mother also reportedly returned that night and assisted with a 2:30 a.m. feeding.
The following day, Keegahn notified Patterson that the Tribe's law enforcement agency reported that the father had active warrants for his arrest, was avoiding law enforcement, and was likely staying off the reservation at the home of C.A.'s mother. Patterson also learned from a hospital social worker that the father had indicated to her that he does not like to come into the nursery, does not want to care for G.M.W. because he is so tiny, and will spend time in the boarding room while C.A spends time with the infant. The hospital also informed Patterson that the parents appeared to be using the room it had set aside for them but not for the purpose of bonding with the child.
On January 13, 2021, the mother texted Patterson with a new phone number, indicating she "[had run] out of minutes" and would call when she completed her methadone appointment that morning. The following day, Patterson obtained authorization to purchase a phone card for the mother. She attempted to contact the mother throughout the day in order to load her phone with the minutes, but she could not reach her.
Patterson also continued to message the father via Facebook to no avail. When she contacted the hospital on January 14, she discovered that both parents had slept in the hospital room and that the mother had participated in a couple of the daytime feedings. Neither parent was present during the overnight feedings.
On January 15, 2021, the hospital transferred G.M.W. to Providence Neonatal Intensive Care Unit for a higher level of care for breathing and blood oxygenation problems. The hospital notified the mother of this transfer.
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