In re J.M.W.

• Citation: 514 P.3d 186
• Decision Date: 21 July 2022
• Docket Number: 99481-1
• Parties: IN RE Dependency of J.M.W., a minor child.
• Court: United States State Supreme Court of Washington

514 P.3d 186

IN RE Dependency of J.M.W., a minor child.

No. 99481-1

Supreme Court of Washington.

Argued: January 11, 2022

Filed: July 21, 2022

Tamar Crystal Rosenfeld, Georgia Probate Law Group, 331 N. Marietta Pkwy., Ne, Marietta, GA, 30060-1457, Jan Trasen, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Petitioner(s).

Rachel Brehm King, Office of the Attorney General, 3501 Colby Ave., Ste. 200, Everett, WA, 98201-4795, Kristen Stallion Valore, Office of the Attorney General, P. O. Box 40124, Olympia, WA, 98504-0124, for Respondent(s).

Courtney Ryane Lewis, Attorney at Law, P. O. Box 20369, Seattle, WA, 98102-1369, Kathryn Fort, Tlingit & Haida Indian Tribes of Alaska, 648 N. Shaw Lane, Room 216k, East Lansing, MI, 48824, for Amicus Curiae on behalf of Central Council of the Tlingit and Haida Indian Tribes of Alaska.

Tara Urs King, County Department of Public Defense, 710 2nd Ave., Ste. 200, Seattle, WA, 98104-1703, La Rond Baker, American Civil Liberties Union of Wash., P. O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of King County Department of Public Defense.

Stacey Lara, University of Washington School of Law, 4293 Memorial Way, Nw, Seattle, WA, 98195-0001, for Amicus Curiae on behalf of Native American Law Center At Uw.

Julia Mizutani, Attorney at Law, P. O. Box 2728, Seattle, WA, 98111-2728, Nancy Lynn Talner, ACLU-WA, P. O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of Aclu of Washington.

Brooke Pinkham, Seattle University School of Law, 901 12th Ave., Sullivan Hl, Seattle, WA, 98122-4411, for Amicus Curiae on behalf of Center for Indian Law & Policy Seattle Univ.

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

Colleen Shea-Brown, Legal Counsel For Youth and Children, P. O. Box 28629, Seattle, WA, 98118-8629, for Amicus Curiae on behalf of Legal Counsel for Youth and Children.

Jennifer Masako Yogi, Attorney at Law, 401 2nd Ave. S., Ste. 407, Seattle, WA, 98104-3811, for Amicus Curiae on behalf of Northwest Justice Project.

González, C.J. ¶ 1 Separating a child from their family, even for an hour, can cause great trauma. Sometimes, separation is necessary to protect a child who has no parent, guardian, or custodian capable of caring for them. Historically, however, Native children were separated from their families not because of any danger to them but, instead, in an effort by the government to destroy Native tribes and nations. See In re Dependency of Z.J.G. , 196 Wash.2d 152, 157, 471 P.3d 853 (2020). To end the widespread abusive practice of removing Native children from their families and destroying Native communities, Congress and the Washington State Legislature passed the Indian Child Welfare Act (ICWA) and the Washington Indian Child Welfare Act (WICWA). In re Dependency of G.J.A. , 197 Wash.2d 868, 875, 489 P.3d 631 (2021) (citing 25 U.S.C. §§ 1901 - 1963 ; ch. 13.38 RCW). Among other things, under these acts, the State must provide " ‘active efforts’ to prevent the breakup of Indian families." Id. (quoting 25 U.S.C. § 1912(d) ; RCW 13.38.130 ).

¶ 2 We took discretionary interlocutory review of this case primarily to decide whether WICWA required the State to take active efforts to prevent the breakup of J.M.W.’s family before taking him into emergency foster care. Consistent with the plain text and purpose of WICWA, we conclude that it did. We also conclude that the trial court was required to make a finding on the record at the interim shelter care hearing that J.M.W.’s out of home placement was necessary to prevent imminent physical damage or harm. We remand to the trial court for further proceedings consistent with this opinion.

FACTS

¶ 3 All parties agree that J.M.W. is an Indian¹ child protected by WICWA. J.M.W. and his father are members of the Oglala Sioux Tribe in Pine Ridge, South Dakota. From the time J.M.W. was very young, the State received many reports, most deemed unfounded, that suggested he was being neglected or abused.

¶ 4 On August 14, 2019, when J.M.W. was eight years old, the Department of Children, Youth, and Families received a report that his mother, H.W., was physically abusing him. The person who called the department had a video recording that showed H.W. slapping and yelling at J.M.W. while he cried. The recording was brief and ended when the person recording it intervened to protect J.M.W. The department also received pictures of H.W.’s home littered with debris and needles.

¶ 5 After watching the video, a department social worker arranged an interview with H.W. The interview took place at H.W.’s home. H.W. admitted she had hit her son. The social worker and H.W. discussed the appropriate use of force and what the State could do to help their family with parenting services and other resources. When the social worker saw that J.M.W. was sleeping on a mattress on the floor with no frame or bedsheets, she offered to buy both. She also arranged to give H.W. vouchers for clothing, food, and cleaning supplies. J.M.W. himself did not want to talk to the social worker on that day. By this time, the department had learned that J.M.W. and H.W. were not currently living with P.W, H.W.’s husband and J.M.W.’s father. It also had learned there was a history of domestic violence between the parents.

¶ 6 Two weeks later the social worker went to J.M.W.’s day care to attempt, again, to interview him. J.M.W. was not at day care that day, and H.W.’s number had been disconnected. At that point, and apparently for the first time, the social worker attempted, unsuccessfully, to call P.W. If there were additional efforts to reach him around that time, those efforts are not reflected in the record.

¶ 7 About six weeks after the social worker originally watched the video of H.W. striking her son, his day care reported that he had arrived in pain and with bruises on his face

and torso. J.M.W. refused to say how he had been hurt, but nothing observed at day care or on the day care security cameras suggested it happened there. Coincidentally, that same day, the social worker called H.W. to connect her with parenting services. During that conversation H.W. claimed that J.M.W. came home from day care bruised.

¶ 8 The social worker went to the day care to speak with J.M.W., this time accompanied by a law enforcement officer. J.M.W. admitted his mother often broke things and got aggravated but insisted the bruises on his face were left by another child. He refused to let the social worker see the bruises under his clothes. That day, J.M.W. was taken away from his family and into protective custody. Nothing in the record suggests that during that time, the department spoke with P.W. to determine whether he was able to care for his son or took any efforts, let alone active efforts, to help P.W. put himself in a position where he could care for J.M.W.²

¶ 9 The next day, the social worker did speak with P.W. P.W. said he would like to have his son placed with him. The record suggests P.W. saw his son regularly and knew H.W. was abusive. The social worker learned P.W. was on supervision by the Department of Corrections, had a history of substance abuse with a likely recent relapse, had repeatedly violated a protective order, and did not have stable housing. Plainly, without active efforts to provide appropriate services from the department, P.W. would not have been able to provide his son with a suitable place to live. Nothing in the record suggests the social worker took any efforts, let alone active efforts, to help P.W. put himself in a position where he could care for his son at that time.

¶ 10 Two days after J.M.W. was taken into protective custody, the department filed a dependency petition. The next day, the court held an emergency shelter care hearing. At that hearing, P.W. unsuccessfully asked to have his son placed with him. P.W. also argued the State had failed to make active efforts, as required by WICWA and ICWA, to prevent his son from being put into foster care. The trial court found that reasonable efforts had been made, but its order is silent as to active efforts. J.M.W. was placed with a family member, and the court ordered services and treatment for both parents.

¶ 11 After the first shelter care hearing, a social worker met with both H.W. and P.W. separately and offered some services. The department knew that P.W. did not have adequate housing, but none of the services offered to P.W. would have remedied that condition.

¶ 12 At the second shelter care hearing, P.W. again argued that the State was required to use active efforts to keep J.M.W. with his parents. The court disagreed, concluding that only reasonable efforts were required, but also found that the department had in fact provided active efforts. The court based its findings on the social worker's efforts between August 14th and September 24th. During that time, no meaningful efforts had been made to help P.W. put himself in a position where he could care for his child. The court also found "there ha[d] been no change in circumstances since the shelter care hearing on September 27, 2019." 1 Sealed Clerk's Papers at 3. The court did not make a finding there was an imminent risk of physical harm on the record.

¶ 13 While this case was on review, J.M.W. was returned to his mother, likely mooting the case. Sealed Resp't’s Second App. at 27. We nonetheless granted P.W.’s motion for discretionary interlocutory review because, due to the nature of the initial shelter care hearings, issues regarding the proper legal standards that apply can easily evade review. The Native American Law Center, King County Department of Public Defense, the Center for Indian Law and Policy, Northwest Justice Project, American Civil Liberties Union of Washington, Legal Counsel for Youth and Children, and ...