In re A.H.

CourtCourt of Appeals of Washington
PartiesIn the Matter of the Dependency of A.H., a minor child. In the Matter of the Dependency of G.H., a minor child. In the Matter of the Dependency of D.H., a minor child. In the Matter of the Dependency of I.H., a minor child.
Docket Number38440-3-III,38224-9-III,38223-1-III,38441-1-III,38442-0-III,38443-8-III,38225-7-III,38226-5-III
Decision Date20 October 2022

UNPUBLISHED OPINION

SIDDOWAY, C.J.

At issue are dependency and disposition orders for the four named children, all of whom are Indian children for purposes of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (ICWA) and the Washington State Indian Child Welfare Act, chapter 13.38 RCW (WICWA).[1] Their mother appeals, challenging (1) the sufficiency of the evidence to support finding her children dependent, (2) the trial court's findings in support of continued foster care placement, and (3) a contact and reporting obligation imposed on appellate counsel by the trial court.

We affirm the dependency finding, reverse the finding of active efforts and the dispositional order's foster care placement, and direct the trial court to strike unauthorized provisions of the order of indigency. We remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

In April 2021, the children at issue in this appeal were taken into the custody of the Department of Children, Youth and Families (Department). We refer to the children by pseudonyms: to A.H. as Abby, who was age six at that time; to G.H. as Garrett, then age five; to D.H. as Diana, then age three; and to I.H. as Ivy, then age two. The children's mother and father have lived separately since December 2018. The father visits with the children occasionally. There is no formal parenting plan in place.

In January 2021, Child Protective Services (CPS) received an intake from the Vanessa Behan center[2] that scratches and marks were observed on the back of then five-year-old Garrett which he had not been able to explain. Shelby Yada, a CPS investigator, traveled to the home of Garrett's mother to ask about the injuries. Ms. Yada was told by Garrett's mother that the injuries resulted when a plastic bin in which her children had been playing broke. The mother's explanation was found to be plausible. Ms. Yada became aware during her investigation that the mother was experiencing difficulty with transportation and ensuring the children's attendance at school and remedial programs. She offered the mother gas vouchers, bus passes, and day care referrals. It was determined that Abby and Garrett were overdue for well-child exams, which Ms. Yada requested be completed. The mother saw that they were. The intake was closed as unfounded.

In the course of the investigation and thereafter, Ms. Yada became aware of other reports CPS had received about the family that were screened out, meaning that CPS accepted but did not act on information that did not amount to an allegation of child abuse or neglect. One report was of a law enforcement response on March 23, 2021, to a physical and verbal altercation between the mother and the father's girlfriend, Sam (sometimes referred to as Samantha), which took place in the presence of the children. Two others were of the mother's suspected use of illegal substances. In one of those two reports, received in early March 2021, the client of a mental health provider told his or her counselor about smelling methamphetamine at the mother's home.

Ms Yada was assigned to a second intake involving the family on April 8, 2021. The intake was again from the Vanessa Behan center, which passed along the mother's report to them that Diana had been struck in the head by the children's father on Easter, and that the father told the mother that weekend to come and get the children "or he was going to bury them." 1 Clerk's Papers (CP) at 3.[3] Ms. Yada traveled to the mother's home to see the children the next morning. The mother did not allow Ms. Yada to enter the home, but did bring the children outside to the front porch so that Ms. Yada could satisfy herself that they were there and safe. Ms. Yada did not observe any signs of injury to Diana.

Ms Yada used the opportunity to speak to the mother about the reports of possible substance abuse. Ms. Yada was carrying a kit for oral swab testing for substances and suggested that the mother provide a swab to address the concern, which the mother did. The mother also agreed to provide a UA (urinalysis) and permit a walk-through of the home the following Monday. She signed a release that allowed the Department to obtain copies of her mental health records from Ryan Townsend, a psychiatric nurse practitioner she had been seeing for medication management.

Early the following Monday, however, the mother sent a text message to Ms. Yada saying she had changed her mind about cooperating in Ms. Yada's investigation. She failed to appear for the scheduled UA. The mother would later testify that the reason for her change of heart was that during the home visit, Ms. Yada refused the mother's request that she look at bruises on the back of Diana's head. In an e-mail to Ms. Yada's supervisor, the mother said she would refuse any type of drug testing until she got a new social worker who "was willing to put my children's safety at the first and foremost." 1 Report of Proceedings (RP) at 22.

In the couple of weeks that followed, Department personnel arranged to have a family team decision meeting (FTDM). Unlike the mother, the father had not refused to engage in services and the original purpose of the FTDM was to discuss services for him.

It was scheduled for April 23, and the father's girlfriend, Sam, and members of the father's family were invited to participate.

Then, on April 21, Ms. Yada received the test results for the oral swab the mother had provided, and they were positive for methamphetamines and amphetamines. At around the same time, Ms. Yada had received and reviewed the mental health records from Mr. Townsend. The records revealed that the mother, who had been diagnosed with a mood disorder, had stopped taking her medication almost a year earlier against Mr. Townsend's recommendation and had not seen him since. A decision was made to include concerns about the mother as part of the FTDM. Approximately 24 hours before the FTDM was to be held, Ms. Yada hand delivered a letter to the mother inviting her to the meeting and informing her of the positive oral swab result and the Department's concerns about the mother's possible substance abuse and mental health.

The Department filed dependency petitions as to all four children on the day of the FTDM. It also moved for orders to take the children into custody and place them in shelter care. The petitions and motions were evidently filed before the FTDM, since they were supported by a declaration from Ms. Yada stating that the mother indicated she would not attend the FTDM, which "is not scheduled until 3:00 p.m." E.g., 1 CP at 29, 49.[4] According to Ms. Yada, the mother refused to engage in the meeting "up until the meeting started," at which point "she did call in." 1 RP at 82. Ms. Yada describes the FTDM, which was held via conference call, as "very pointless" because the mother was "scream[ing] at the top of her lungs" and "[n]obody could get a word in." 2 RP at 58. The facilitator had to end the phone call because of her inability to direct participation. The mother later characterized the meeting as "a secret meeting that I was invited to last minute." 1 RP at 35. The mother agrees the meeting ended early but attributes the early ending to "my confusion of why the meeting was going on." 1 RP at 33.

The motion for shelter care alleged the children were "at significant risk of abuse and/or neglect in the care of their mother due to current substance use, numerous people coming and going from the home, and the mother's inability to follow through with the children's medical/developmental needs." E.g., 1 CP at 46. Ms. Yada provided the following reasons for an emergency need to take the children into shelter care:

Imminent risk as of today is the mom's use of methamphetamines as indicated by a recent positive oral swab, her [mental health] issues which appear to be escalating and the dad has made concerning comments via text to the bio mother indicating his desire to bury the kids and he wants to sign over his rights to her. He indicated he was trying to make her believe he no longer wanted them. There is no parenting plan that would keep the mom from coming and get her kids and we have concerns due to significant [mental health] issues and substance abuse. The dad also reported yesterday the school has been calling him due to concerns as to the mom and he is not intervening on behalf of his kids. The pattern of dad's refusal to intervene through the courts and during are [sic] intervention and coupled with significant concerns with the mom suggest these kids are at imminent risk.

E.g., 1 CP at 67. The motion was granted and a shelter care hearing was set for the morning of April 26.

Shelter care hearing

On the afternoon of the 26th the parents appeared before a court commissioner with their lawyers for what the record indicates had been expected to be an uncontested shelter care hearing. The father agreed to a shelter care order for each child but the mother did not; she was asking that the children be placed with her. Pending the mother's contested hearing which was continued, the court ordered the children to remain in the temporary custody of the Department, which was authorized to place them with a paternal uncle and his fiancé. Based on the father's testimony that he had Cherokee ancestry on his maternal side, the court found there...

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