In re A.W.

• Decision Date: 08 August 2022
• Docket Number: 82799-5-I
• Citation: 514 P.3d 769
• Parties: In the MATTER OF the DEPENDENCY OF: A.W., a Minor Child.
• Court: Washington Court of Appeals

514 P.3d 769

In the MATTER OF the DEPENDENCY OF: A.W., a Minor Child.

No. 82799-5-I

Court of Appeals of Washington, Division 1.

Filed August 8, 2022

Maureen Marie Cyr, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Petitioner.

Lauren Danskine, Attorney at Law, 3501 Colby Ave. Ste. 200, Everett, WA, 98201-4795, for Respondent.

P Jayson Thibodaux, Attorney at Law, 116 Avenue A Ste. B, Snohomish, WA, 98290-2926, for Other Parties.

PUBLISHED OPINION

Andrus, C.J.

¶ 1 Shortly after A.K. gave birth to A.W., the Department of Children, Youth, and Families (Department) filed a dependency petition and sought an ex parte order allowing the Department to take A.W. into custody ("pick-up order") based on the mother's drug use during pregnancy and evidence of an inability to care for the infant. The mother's attorney contacted the court, requesting a hearing before the court signed the pick-up order. The trial court denied that request and signed the order without first holding a hearing.

¶ 2 At the subsequent shelter care hearing, the trial court denied the mother's motion to vacate the pick-up order but nonetheless found that shelter care was no longer necessary because of the steps she had taken to obtain drug treatment and parenting support, and it returned the child to A.K. The court subsequently dismissed the dependency proceeding.

¶ 3 A.K. sought discretionary review of the order denying her motion to vacate, arguing that the trial court violated due process by issuing a pick-up order without first affording her a hearing and that the court violated both the Indian Child Welfare Act of 1978¹ (ICWA) and the Washington State Indian Child Welfare Act² (WICWA) in granting the pick-up order. This court granted discretionary review.

¶ 4 We conclude that entering a pick-up order without first holding a hearing did not violate A.K.’s due process rights. We also conclude that when the Department has reason to believe that a child is an Indian child under ICWA and WICWA, the heightened removal standard in those statutes applies to ex parte pick-up order requests. Because the Department had reason to know that A.W. is an Indian child—information not shared with the trial court—and the trial court applied an incorrect legal standard in assessing the Department's evidence at that stage of the proceeding, the trial court erred in not vacating the pick-up order.³

FACTS

¶ 5 A.K. gave birth to A.W. on April 19, 2021.⁴ A.K. had a long history of struggling with heroin addiction

and reported using the drug intermittently, including throughout her pregnancy.⁵ Because she did not realize she was pregnant until the month before she gave birth, the mother received very little prenatal care. On March 25, 2021, three weeks before A.W.’s birth, the mother started a methadone program with Therapeutic Health Services (THS). When A.W. was born, both mother and infant tested positive for methadone and A.W. exhibited signs of withdrawal, including tremors and poor skin tone, and was not eating well. The hospital began providing therapeutic morphine treatment. It also notified the Department, and social worker Amber Grey opened a Child Protective Services investigation.

¶ 6 The mother visited A.W. in the hospital regularly. Hospital staff initially noted that she provided loving and appropriate care for A.W. but later reported concerns that A.K. was "apathetic" when the baby cried. According to hospital staff, she was often distracted by her phone, failed to engage with parent educators, and allowed others to care for A.W. The hospital also reported that the mother was sleeping often and failing to wake when A.W. cried. They described the mother as a "poor historian" as she could not determine when she had last used drugs and had no long-term housing plan. A.K. reportedly told a hospital social worker that she "want[ed] to do methadone

on her own, and was unwilling to engage in any other services typically associated with sobriety, such as support groups."

¶ 7 According to Grey, the mother could not tell her when she discovered she was pregnant or when she started methadone

treatment. A.K. informed Grey that she had yet to engage with a THS counselor or to participate in any of its support groups.

¶ 8 At the time of A.W.’s birth, the mother was living with her friend, Jordan Ford-Nyce and Ford-Nyce's great uncle, Gary Ford, in a house in Snohomish. As part of her investigation, Grey reached out to both Ford-Nyce and Ford to better understand A.K.’s support system and living situation. Both were supportive of A.K.’s efforts to obtain sobriety and were willing to have her and A.W. stay in their home. While Ford-Nyce worked part time in Portland, Oregon, and would be gone for several days each week, Ford could be home consistently and offered to teach A.K. parenting skills, such as changing the baby and making bottles. Grey felt their home was clean and well kept, and appeared to be safe.

¶ 9 On April 22, the Department held a family team decision meeting with A.K. At the meeting, A.K. agreed to participate in random urinalysis testing (UA), and to engage in services, including an in-home parenting class. She further agreed to follow Safe Sleep guidelines and have either Ford or Ford-Nyce present for late night feedings. Should she relapse, A.K. agreed to notify the Department and ensure that A.W. was in the care of a safe and sober adult. Ford-Nyce, who also attended the meeting, agreed that either she or Ford would check in with A.K. once a day and report any concerns to the Department.

¶ 10 Following the meeting, Grey began making necessary referrals for these services. She referred A.K. to an in-home parenting class and UA testing. Grey notified A.K. of the UA referral by text message. A.K. never responded to it and did not complete the UA. She claimed she had not seen the text until three days after Grey sent it. On April 26, A.K. completed a UA at THS. While the UA was negative, it was not "observed" as the Department required.

¶ 11 On April 28, Grey learned that A.K. had not appeared for a scheduled in person meeting with her THS counselor. Grey also learned that the hospital planned to discharge A.W. the following Monday, May 3.

¶ 12 On April 29, the Department held a second family team decision meeting. At the meeting, Grey shared some of the Department's concerns and A.K. offered explanations for her behaviors. For example, A.K. explained that she missed her meeting with the counselor because she "pee[d] her pants" in the car and had to go home to change, and she said she allowed others to care for A.W. at the hospital because the hospital staff had told her to rest. The Department nevertheless informed A.K. that it intended to file a dependency petition and a motion to take A.W. into custody. A.K. asked that Ford-Nyce be allowed to act as A.W.’s caregiver in the event that A.K. was not permitted to do so.

¶ 13 The next morning, on Friday April 30, A.K.’s attorney e-mailed the Department, asking for a third family team decision meeting and requesting that she be notified of any ex parte requests with the court, including any pick-up order requests. Later that morning, the Department responded and informed counsel that it had filed the petition.

¶ 14 In the petition, the Department represented to the court that, among other things, it did not have reason to know A.W. was an "Indian child" under ICWA and WICWA. According to the petition, A.K. denied having any Native ancestry, and Grey was unable to contact A.W.’s father to ask about his ancestry because he was in jail in Oregon.

¶ 15 The Department also filed an ex parte motion for an order to take the child into custody with the dependency petition. When A.K.’s counsel learned about the motion, she e-mailed the court and requested "a hearing on the record prior to any ex parte order being signed." The trial court reviewed this request and the petition and elected to sign the pick-up order without a hearing. The court found that the Department had demonstrated "a risk of imminent harm to the child in the child's home," that the Department's risk assessment constituted "reasonable efforts to prevent or eliminate the need for removal of the child from the child's home," and that "services previously offered or provided to the parent(s) have not remedied the unsafe conditions in the home." The order allowed the Department to take A.W. into custody and place her in shelter care for not more than 72 hours.

¶ 16 When the hospital discharged A.W. on Monday, May 3, the Department placed her with Ford-Nyce and Ford. The court set a shelter care hearing for May 5 at which time A.K. moved to vacate the pick-up order and filed a brief in opposition to the Department's request for shelter care. A.K. argued that the pick-up order violated ICWA, WICWA, and due process. At A.K.’s request, the court continued the hearing to the next day to allow the court "to review the extensive briefing provided by the parties."

¶ 17 On May 6, the court held the shelter care hearing and considered A.K.’s motion to vacate the pick-up order. Contrary to what was alleged in the dependency petition, the Department agreed that ICWA and WICWA applied because it had reason to know A.W. was an Indian child. The father, D.W., was not present at the hearing but was represented by counsel who informed the court that D.W. had Native American ancestry. He further informed the court that, because D.W. was involved in another dependency case in Cowlitz County, his Native ancestry would have been known by the Department. The Department did not contest this fact.

¶ 18 The court found that the Department's omission of A.W.’s Native heritage from the petition was "immaterial" for purposes of the pick-up order and concluded that, although ICWA and WICWA applied, they "do not alter the standard by which the Court needs to assess the order ( RCW 13.34.050 )." The court further rejected A.K.’s due process challenge to the ex...