R.B. v. C.W. (In re Adoption of T.A.W.)

• Decision Date: 27 October 2016
• Docket Number: No. 92127–0,92127–0
• Citation: 186 Wash.2d 828,383 P.3d 492
• Court: Washington Supreme Court
• Parties: In the Matter of the Adoption of T.A.W., R.B. and C.B., Petitioners, v. C.W., Respondent.

186 Wash.2d 828

383 P.3d 492

In the Matter of the Adoption of T.A.W.,R.B. and C.B., Petitioners,

v.C.W., Respondent.

No. 92127–0

Supreme Court of Washington, EN BANC.

Argued May 24, 2016

Filed Oct. 27, 2016

William Robin Penoyar, Attorney at Law, P.O. Box 425, South Bend, WA, 98586–0425, Mark David Fiddler, Attorney at Law, 6800 France Ave. S., Ste. 190, Minneapolis, MN, 55435, for Petitioners.

Casey Grannis, Nielsen Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122–2842, for Respondent.

Alan C. Baker, Risley Law Office, PLLC, 1443 Idaho St., P.O. Box 1247, Lewiston, ID, 83501–2558, Aditya Dynar, 500 East Coronado Road, Phoenix, AZ, 85004, as Amicus Curiae on behalf of Goldwater Institute.

Timothy Alan Rybka, Attorney at Law, P.O. Box 2733, Ferndale, WA, 98248–2733, as Amicus Curiae on behalf of Shoalwater Bay Indian Tribe.

Craig Jones Dorsay, Dorsay & Easton LLP, 1 S.W. Columbia St., Ste. 440, Portland, OR, 97258–2005, as Amicus Curiae on behalf of Samish Indian Nation.

Mark Marston Demaray, Law Offices of Mark M. Demaray Inc. PS, 145 3rd Ave. S., Ste. 201, Edmonds, WA, 98020–3593, as Amicus Curiae on behalf of American Academy of Adoption Attorneys.

FAIRHURST, J.

¶1 T.A.W. is an “Indian child” under the federal Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 –1963, as well as the Washington State Indian Child Welfare Act (WICWA), chapter 13.38 RCW. T.A.W.'s biological father, C.W. is non-Indian,¹ and T.A.W.'s mother, C.B., is Indian and an enrolled member of the Shoalwater Bay Tribe.² C.B. and T.A.W.'s stepfather, R.B.,³ successfully petitioned the trial court to terminate C.W.'s parental rights and to allow R.B. to adopt T.A.W. In reaching its decision, the trial court found that ICWA applied to the termination proceedings and that ICWA's requirements were met beyond a reasonable doubt. The trial court did not require C.B. and R.B. to prove that active efforts were undertaken to remedy C.W.'s parental deficiencies prior to terminating his parental rights and made no finding, to that effect. The Court of Appeals reversed, holding (1) ICWA and WICWA protect non-Indian and Indian parents alike, (2) the trial court erred by not making an active efforts finding, (3) the United States Supreme Court's decision in Adoptive Couple v. Baby Girl , ––– U.S. ––––, 133 S.Ct. 2552, 2557, 186 L.Ed.2d 729 (2013), was factually distinguishable, and (4) WICWA has no abandonment exception. In re Adoption of T.A.W. , 188 Wash.App. 799, 354 P.3d 46, review granted , 184 Wash.2d 1040, ––– P.3d –––– (2015). C.B. and R.B. appealed. We now affirm the Court of Appeals and remand this case to the trial court so that it may reconsider the termination petition in light of these holdings.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background

¶2 In December 2007, when T.A.W. was born, C.B. and C.W. were married and living together. C.W. was present at T.A.W.'s birth and signed the paternity affidavit confirming that he is T.A.W.'s father. Though the parties dispute the exact duration, C.W., C.B., and T.A.W. resided together between four months to one year following T.A.W.'s birth. At some point during this period, the parties shared a home on the Shoalwater Bay Tribe reservation. C.W. and C.B. dispute how much of the parenting responsibilities C.W. contributed, but C.W. testified that he cared for T.A.W. while C.B. worked. C.B. eventually asked C.W. to leave the family home because of C.W.'s addiction to methamphetamine.

¶3 After C.W. left, he continued to abuse methamphetamine. C.W. voluntarily enrolled in inpatient drug treatment in 2009 but was unable to maintain his sobriety.

¶4 C.B. filed for dissolution of marriage in April 2009 following an incident where C.W. attempted to take T.A.W. from C.B.'s home.

When C.B. refused permission, C.W. punched a wall in C.B.'s home while T.A.W. was present. As part of the dissolution proceedings, the court granted C.B. a temporary restraining order (TRO) that prevented C.W. from contacting her. The TRO permitted only supervised visits between C.W. and T.A.W. until C.W. completed drug treatment. However, C.W. did not attempt to visit T.A.W. during the dissolution proceedings.

¶5 Following the dissolution, C.B.'s mother drove C.B. and T.A.W. to C.W.'s mother's house for visitations on at least two occasions. Aside from those two occurrences, C.B.'s mother claimed she was unable to facilitate any additional visitations because C.W. no longer resided in the area. C.W. testified that his drug addiction prevented him from maintaining his visitations with T.A.W.

¶6 In July 2009, law enforcement arrested C.W. for violating the TRO after C.W. went to C.B.'s house to reconcile and attempted to enter the premises without permission. Following that incident, the court granted C.B.'s petition to cease all of C.W.'s visitations with T.A.W. pending C.W.'s completion of drug treatment.

¶7 In September 2009, the court entered a final parenting plan that permitted supervised visitation between C.W. and T.A.W. Nevertheless, with the exception of two short releases in 2010 and 2012, C.W. has spent the majority of the past seven years in prison. C.W. last saw T.A.W. before he went to prison near the end of 2009.

¶8 After C.W.'s release in 2012, C.B. obtained a domestic violence protection order from the Shoalwater Bay Tribal Court. In October of that year, the Shoalwater Bay Tribal Court modified the protection order to permit C.W. to petition for rehearing if he completed at least six months of domestic violence perpetrator classes. During the same period, C.B. petitioned the superior court for modification of the parenting plan based on C.W.'s recent release from prison, allegations of C.W.'s suspected involvement in an unsolved murder, and the fact that the protection order was still in place preventing C.W. from contacting C.B. Based on these assertions, the court modified the parenting plan. As modified, the parenting plan prohibited all visitations between C.W. and T.A.W.

¶9 In April 2013, C.W. was sentenced to another 43 months in prison with an expected release date in September 2015. C.W. remained incarcerated during the termination trial.

B. Procedural history

¶10 In June 2013, C.B. married R.B. C.B. and R.B. filed a petition for termination of parental rights and adoption later that month, which C.W. answered pro se. R.B. and C.B. obtained a court ordered home study pursuant to RCW 26.33.200.⁴ The placement evaluator visited R.B. and C.B.'s home, viewed their interactions with T.A.W., performed a criminal background check on R.B., and spoke to R.B.'s references. The placement report recommended that the court terminate C.W.'s parental rights and permit R.B. to adopt T.A.W.

¶11 The termination trial was held in March 2014 in Pacific County Superior Court. The trial court found that T.A.W. was an Indian child and that ICWA applied to the proceedings. The trial court also found beyond a reasonable doubt that the elements of ICWA were met. The trial court then found by clear, cogent, and convincing evidence that C.W. abandoned T.A.W. and granted R.B. and C.B.'s termination and adoption petition. C.W. appealed the trial court's orders.

¶12 The Court of Appeals granted accelerated review under RAP 18.13A.⁵ Id. at 799. On appeal, C.W. invoked for the first time⁶ the protections of ICWA and WICWA and argued that R.B. and C.B. failed to provide him with active efforts to remedy his parental deficiencies before the trial court terminated his parental rights. R.B. and C.B. asserted that in light of Adoptive Couple , 133 S.Ct. at 2557, ICWA and WICWA did not apply to parents who abandoned their children. R.B. and C.B. alternatively argued that ICWA and WICWA do not operate to protect the rights of non-Indian parents like C.W.

¶13 Division Two of the Court of Appeals unanimously held that both 25 U.S.C. § 1912(d) of ICWA and RCW 13.38.130(1) of WICWA should have applied to the termination trial. T.A.W., 188 Wash.App. at 810, 354 P.3d 46. The Court of Appeals considered the plain language of the active efforts provisions of ICWA and WICWA and the underlying policy of each statutory scheme. Id. at 808–12, 354 P.3d 46. The court reasoned that those provisions require the petitioning party to prove, prior to the termination of parental rights, that active efforts have been made to remedy the parental deficiencies justifying the termination and that the efforts have proved to be unsuccessful. Id. at 806–07, 354 P.3d 46. The Court of Appeals reversed the ruling of the trial court, holding instead that ICWA and WICWA apply in all cases where (1) an Indian child is (2) involved in a child custody proceeding, without regard for the Indian status of the parents. Id. at 810, 354 P.3d 46. This conclusion was based partially on language found in other dependency and adoption statutes indicating that if an Indian child is involved, ICWA shall apply. Id. Finally, the Court of Appeals held it was not bound by the ruling in Adoptive Couple because that case was factually dissimilar and because WICWA does not contain the abandonment exception that the Supreme Court recognized as existing in ICWA. Id. at 815–16, 354 P.3d 46.

¶14 R.B. and C.B. appealed the Court of Appeals' ruling. Our Supreme Court commissioner granted discretionary review.

II. ISSUES

¶15 A. Does ICWA or WICWA apply to the termination of parental rights of a non-Indian biological parent?

¶16 B. Does ICWA or WICWA apply to stepparent adoptions?

¶17 C. Do ICWA's or WICWA's active efforts provisions apply to privately initiated terminations when the child will remain with the Indian parent?

III. ANALYSIS

A. ICWA and WICWA apply to the termination of parental rights of a non-Indian biological father

¶18 As a threshold issue, we must determine whether the protections of ICWA or WICWA apply to C.W., T.A.W.'s non-Indian biological father. The Court of Appeals held that neither act conditioned applicability on a parent's Indian status. Id. at 810, 354 P.3d 46. R.B. and...