In re A.L.K.
| Decision Date | 24 December 2020 |
| Docket Number | No. 98487-5,98487-5 |
| Citation | 196 Wash.2d 686,478 P.3d 63 |
| Court | Washington Supreme Court |
| Parties | In the MATTER OF the DEPENDENCY OF A.L.K., L.R.C.K.-S., and D.B.C.K.-S., Minor children. |
Gregory Charles Link, Marek Elias Falk, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Petitioner.
Rachel Brehm King, Office of the Attorney General, 3501 Colby Ave.Ste. 200, Everett, WA, 98201-4795, for Respondent.
Kathryn E. Fort, Mich. Univ. College of Indian Law Clinic, 648 N. Shaw Lane, Suite 415k, East Lansing, MI, 48824, Ronald John Whitener, Center of Indigenous Research and Justice, 5033 Harrison Ave. Nw, Olympia, WA, 98502-5083, Shelley Mbonu(Appearing Pro Se), Northern Arapaho Tribe, Icwa Director, P.O. Box 951, Riverton, WY, 82501, for AppellantIntervenor.
Tara Urs, La Rond Baker, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, Amicus Curiae on behalf of King County Department of Public Defense.
Brooke Pinkham, Seattle University School of Law, 901 12th Ave., Sullivan H1, Seattle, WA, 98122-4411, Amicus Curiae on behalf of Seattle University Center for Indian Law & Policy.
Lisa Ann Kelly, University of Washington, Po Box 85110, William H. Gates H1Ste. 265, Seattle, WA, 98145-1110, Stacey Lara, University of Washington School of Law, 4293 Memorial Way Nw., Seattle, WA, 98195-0001, Amicus Curiae on behalf of Univ of WA Children & Youth Advocacy Clinic & Parent Advocacy.
Robert S. Chang, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, Amicus Curiae on behalf of Fred T. Korematsu Center for Law & Equality.
Jennifer Masako Yogi, Attorney at Law, 401 2nd Ave. S. Ste. 407, Seattle, WA, 98104-3811, Amicus Curiae on behalf of Northwest Justice Project.
Nancy Lynn Talner, ACLU-WA, Po Box 2728, Seattle, WA, 98111-2728, Amicus Curiae on behalf of Aclu of Washington.
Alexandria Marie Hohman, The Washington Defender Association, 110 Prefontaine Pl.S. Ste. 610, Seattle, WA, 98104-2626, Amicus Curiae on behalf of Washington Defender Association.
Harold James Riveira, Pro se.
Dustin Smith, Pro se.
¶1 Under the federal Indian Child Welfare Act of 19781(ICWA) and the Washington State Indian Child Welfare Act2(WICWA), the State must make "active efforts ... to prevent the breakup of the Indian[3] family."25 U.S.C. § 1912(d);see alsoRCW 13.38.130(1).Two of L.K.’s three children are Indian children for the purposes of ICWAandWICWA.L.K. claims that the Department of Children, Youth, and Families(Department) removed her children without making "active efforts" at keeping the family together as is required under ICWAandWICWA.
¶2The Court of Appeals did not address this issue but, instead, sua sponte found that under the invited error doctrine, L.K. is precluded from raising this issue on appeal.It held that because L.K. repeatedly contended she did not need services, she cannot now claim on appeal that the Department did not provide her sufficient services under ICWAandWICWA.It did not reach the issue of whether the Department provided active efforts.
¶3We reverse the Court of Appeals’ holding that L.K. invited error that precluded appellate review of whether the Department made active efforts when she asserted at and before the dependency trial that she did not need services.Further, we address the issue of active efforts and hold that the Department did not engage in the statutorily required active efforts to prevent the breakup of an Indian family.Accordingly, we vacate the dispositional order continuing L.R.C.K.-S. and D.B.C.K.-S.’s foster care placement.We remand for immediate return of these two children to their mother, unless the court finds that returning the children puts the children in "substantial and immediate danger or threat of such danger."25 U.S.C. § 1920;see alsoRCW 13.38.160.The finding of dependency is unaffected.
¶4 L.K. is the mother of seven-year-old A.L.K., four-year-old L.R.C.K.-S., and three-year-old D.B.C.K.-S. A.L.K. has a different father from her siblings.L.R.C.K.-S. and D.B.C.K.-S.’s father is a member of the Northern Arapaho Tribe (Tribe)4 located on the Wind River Reservation.L.R.C.K.-S. and D.B.C.K.-S. are eligible for enrollment.The issues presented to this court affect only L.R.C.K.-S. and D.B.C.K.-S. as A.L.K. has not been found to be Native.
¶5 L.K. has an extensive history with Child Protective Services (CPS) and the Department, having 19 prior allegations since 2013 and a prior dependency that was dismissed at fact-finding.In 2013, L.K. relapsed on methamphetamine while on probation, and the Department initiated a Family Voluntary Services (FVS) case.The Department offered her "project safe care parenting class, random UAs [urinalyses], mental health counseling, bus passes and ... drug and alcohol evaluation."Transcript of Proceedings (sealed)at 252.While these cases usually last 90 days, the Department allowed L.K. to continue services for 7 months.L.K. did well for the first 4 months, but then her participation started to decline.The Department closed the case when L.K. declined services.
¶6 The Department initiated another FVS case in 2017 when it got a report that L.K. was in a detox unit while pregnant with D.B.C.K.-S.The Department set up a plan that included drug and alcohol treatment, evaluation, and UAs; childcare; housing; and in-home family preservation services.The in-home family services provider helped L.K. fill out applications, transported her to different housing, and got her into housing.However, L.K. chose to live in a motel instead of the housing provided for her.Nonetheless, the social worker who visited the motel said it was "clean" and there were no safety concerns.Id . at 271.
¶7 The Department also paid for childcare and provided childcare supplies, gas vouchers, and bus passes.This also included contacting the Tribe and letting the Tribe know the services that were being offered to the family.Although L.K. wanted the case to remain open so she had childcare, the case was closed after 90 days in March 2018 because the Department had offered all services and the only one L.K. was using was childcare.
¶8 In August 2018, L.K.’s children were removed from her care for allegations of abandonment.A.L.K. was placed with her paternal grandmother, and L.R.C.K.-S. and D.B.C.K.-S. were placed in non-Native, licensed foster care as there was no relative placement available and no Native foster care placement.The Department also contacted the Tribe, who intervened in the case.The Department attempted to find a relative or Native placement but could not by the time of the trial.The Department also set up visitation for L.K. with all the children together three times per week.
¶9 The Department repeatedly attempted to get L.K. to complete UAs and a hair follicle test, but she consistently refused.The court also ordered the tests, but she did not comply with the court order.When a social worker met with L.K. in September 2018, she offered assistance with housing and again asked for drug testing.The social worker testified that as to services, the Department recommended "a chemical dependency evaluation, random UAs, domestic violence perpetrator's assessment, safe and stable housing, parenting education, signed release of information, as well as psychological evaluation."Id . at 303-04.There is no indication that the social worker offered these services through referrals or helping with applications and setting up appointments.The social worker testified that L.K. stated she just wanted financial support and "on several occasions" said she was unwilling to engage in any services but visitation.Id . at 312.
Id. at 48-49.She also repeatedly assured the court that she no longer had a drug problem.
¶11 The ICWA director for the Tribe filed a declaration as a qualified Indian expert indicating that continued custody by the parents would "result in serious emotional and physical damage" to the children.SeeClerk's Papers (CP)(D.B.C.K.-S.)(sealed)at 153.She highlights that L.K. has attended visits but has not engaged in UAs, has not completed hair follicle testing, and does not have stable housing.She concludes that the Department has made "active efforts thus far to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and these efforts have proved unsuccessful."Id .
¶12 At the end of trial, the...
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