In Re The Welfare Of L.N.B.-l.

• Decision Date: 03 August 2010
• Docket Number: Nos. 38850-2-II, 38854-5-II.,s. 38850-2-II, 38854-5-II.
• Citation: 237 P.3d 944,157 Wash.App. 215
• Court: Washington Court of Appeals
• Parties: In re the WELFARE OF L.N.B.-L., Indian Child. In re the Welfare of A.D.B.-L., Indian Child.

157 Wash.App. 215

237 P.3d 944

In re the WELFARE OF L.N.B.-L., Indian Child.

In re the Welfare of A.D.B.-L., Indian Child.

Nos. 38850-2-II, 38854-5-II.

Court of Appeals of Washington,Division 2.

Aug. 3, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Lise Ellner, Attorney at Law, Vashon, WA, Eric J. Nielsen, Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellants.

Barbara Noel Bailey, Attorney General's Office, Tacoma, WA, for Respondent.

PENOYAR, C.J.

¶ 1 JB-L and KL, the mother and father, respectively, of four-year old LNB-L and three-year old ADB-L, ¹ appeal the juvenile court's order terminating their parental rights. LNB-L and ADB-L each qualify as an “Indian child” under the Indian Child Welfare Act (ICWA). ² JB-L and KL assign error to several findings of fact and conclusions of law, and they assert that the Department of Social and Health Services failed to establish several elements of RCW 13.34.180(1) ³ and ICWA. The parents raise numerous other arguments, including the Department's alleged failure to provide proper notice to Indian tribes that had an interest in the proceedings. We affirm the termination orders, but we hold that the Department should have notified two additional tribes of the termination proceedings. Therefore, we remand for proper notice. If the notified tribes decline to intervene, the termination orders will stand. If either of the tribes chooses to intervene, the juvenile court shall hold further proceedings consistent with this opinion.

FACTS

¶ 2 In December 2005, Child Protective Services (CPS) received referrals raising concerns about then-newborn LNB-L's feeding and weight gain, ⁴ and JB-L's ability to care for him alone. On December 29, a social worker visited JB-L's residence. At the time, KL was in jail for a probation violation. The social worker observed a heater on “full blast” near flammable items, an inoperative smoke detector, a kitchen counter and sink full of dirty dishes, garbage on the floor, and caked-on food matting the carpet. Ex. 1 at 3; Ex. 8 at 3. The home had a strong odor, and LNB-L's hair contained flea eggs. CPS placed LNB-L in protective custody.

I. Dependency

¶ 3 On June 30, 2006, the juvenile court found LNB-L dependent because he lacked a “parent, guardian or custodian capable of adequately caring” for him. Former RCW 13.34.030(5)(c) (Laws of 2003, ch. 227, § 2). The court's dispositional order required JB-L to complete a parenting evaluation; attend parenting classes; receive medical care for her health problems, including cirrhosis; receive counseling to address psychological issues, including the impact of domestic violence; secure and maintain stable housing free of drug or alcohol use and domestic violence; and work with a public health nurse to learn to care for LNB-L. The court's dispositional order required KL to comply with most of these same requirements and to complete psychiatric and drug and alcohol evaluations; ⁵ receive medical care for neurological issues; receive counseling to address psychological issues and learn coping skills; and complete a one-year domestic violence perpetrator treatment program.

¶ 4 During LNB-L's dependency, JB-L was pregnant with ADB-L. She participated in a high-risk pregnancy program at the University of Washington. ⁶ JB-L attended classes with KL, but the university eventually ejected KL from the program due to his volatile behavior. As a result, JB-L cancelled her appointment to induce labor at the university, despite her high-risk status, in order to find a location where KL could attend the birth. JB-L gave birth to ADB-L in a Silverdale hospital.

¶ 5 Shortly after ADB-L's birth on January 5, 2007, the Department filed a dependency petition because of its continuing concerns about JB-L's and KL's ability to parent. After a hearing in July 2007, the juvenile court found ADB-L dependent. The juvenile court issued an additional dispositional order with regard to ADB-L that required JB-L to obtain medical coverage for herself; work to develop independent living skills, including learning about financial decisions; and complete a class entitled “Parenting Children who have witnessed Domestic Violence.” Ex. 16 at 4. The court ordered KL to provide random urinalysis (UA) samples; demonstrate the skills he had learned in parenting classes during visitation; and receive medical care for a diagnosed mood disorder.

A. Tribal Membership and Affiliation

¶ 6 JB-L is an enrolled member of the Nooksack Tribe, a federally recognized tribe, and the Squamish Nation, ⁷ a Canadian tribe that is not federally recognized. See Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 74 Fed.Reg. 40218, 40219-22 (Aug. 11, 2009). KL describes his heritage as “Cherokee and Black Foot out of the Algonquin Nation,” but he is not a member of those tribes. Report of Proceedings (RP) at 538. The dependency petitions note that JB-L is a member of the Squamish Nation, and that KL “has Cherokee and Black Foot ancestry, but is not enrolled.” Ex. 1 at 2; Ex. 8 at 2. The Cherokee Nation is a federally recognized tribe. 74 Fed.Reg. 40218, 40219 (Aug. 11, 2009). There is insufficient evidence in the record to determine whether KL's “Black Foot ancestry” refers to the federally-recognized Blackfeet Tribe of the Blackfeet Indian Reservation of Montana. ⁸ Ex. 1 at 2; Ex. 8 at 2; see 74 Fed.Reg. 40218, 40219 (Aug. 11, 2009).

¶ 7 As we noted above, LNB-L is an enrolled Nooksack member and ADB-L is eligible for enrollment in the Nooksack Tribe. The record is unclear as to whether LNB-L and ADB-L are members or are eligible for membership in the Squamish, Cherokee, or Black Foot Tribes.

B. Nooksack Tribe's Involvement

¶ 8 The Department notified the Nooksack Tribe about the family, and the Nooksack Tribe became involved in 2006. ⁹ Elizabeth Paez served as the Nooksack's Indian Child Welfare (ICW) case manager for LNB-L and ADB-L. At the termination hearing, Paez testified that the Squamish Nation declined to intervene in the dependencies.

¶ 9 During the dependency, Paez participated telephonically in approximately ten meetings with the Department and one or both parents. Paez did not meet JB-L and KL until August 2007 when she and other tribal employees traveled to Port Orchard to help the parents “get into services ... so that they could regain their children back.” RP at 597. That meeting lasted four hours, and the children were not present. Paez and another tribal employee helped KL to arrange mental health and alcohol services. Nooksack employees also tried to help JB-L obtain insurance so that she could receive her medication at a reduced price, but JB-L lacked the necessary paperwork. At that meeting, KL had an “outburst[ ]” that “left [JB-L] in tears.” RP at 576.

¶ 10 In October 2007, Paez tried to meet with KL and JB-L for a second time at the site where KL and JB-L visited the children. KL notified Paez that he did not want to speak with her because Paez had arrived late to the meeting. Paez then spent about an hour with the children at the foster home. She noted that the foster home was appropriate and that the children seemed happy. ¹⁰ After the failed meeting, JB-L called Paez several times to notify her that she was faxing documents regarding KL's medications.

Aside from those phone calls, Paez had no further contact with KL or JB-L.

C. Housing

¶ 11 In 2006, the Department assisted JB-L and KL to obtain housing at Quail Hollow Apartments, and it helped pay the first month's rent. In August 2006, the Department's ICW social worker, Hunter Morrigan, visited the residence. Morrigan observed no safety concerns, noting that the home was clean, contained food and adequate furniture, and smelled pleasant. Morrigan never entered the home again; she believed that KL and JB-L knew how to keep their home clean.

¶ 12 While at Quail Hollow, KL and JB-L received several three-day notices for nonpayment, and their neighbors complained about noise. On some occasions, when Quail Hollow's assistant manager sent KL and JB-L notices for rent delinquency or noise violations, KL appeared in the assistant manager's office and yelled at her. Sometimes KL appeared intoxicated. The assistant manager felt threatened by KL's behavior, and she was concerned for JB-L's safety because JB-L sometimes cried in the assistant manager's office. In July 2008, Quail Hollow declined to renew KL and JB-L's lease because other residents threatened to move out if KL and JB-L remained. Afterwards, KL and JB-L stayed with relatives and friends. At trial, JB-L stated that she was homeless and had applied for low-income housing.

D. Substance Abuse

¶ 13 In 2006, KL refused to complete a drug and alcohol assessment after two referrals by the Department. Beginning in 2007, KL changed course and completed substance abuse evaluations at three different agencies. The first two agencies recommended inpatient treatment and intensive outpatient treatment, respectively, neither of which KL completed.

¶ 14 In 2006 or 2007, ¹¹ KL obtained a medical marijuana license in order to treat seizures, asthma, and back pain. KL testified that he spends $100 per month on marijuana, smokes three “bowls” per day, and obtains the marijuana from “the people I got it from on the streets.” RP at 200-01. JB-L buys $20-$40 of marijuana for KL per month out of her monthly budget of about $630.

¶ 15 KL's third and most recent substance abuse evaluation in March 2008 found that “due to [KL]'s refusal to abstain from marijuana ... he would only be served by a harm-reduction program.” ¹² RP at 713. KL expressed willingness to participate in a harm-reduction program. Morrigan testified:

I did quite a bit of research in an attempt to try to look at what [a harm-reduction program] meant and where those are located. There were none in this area. And the descriptions of the programs did not seem to...