Wash. Dep't of Children, Youth & Families v. Clausen (In re Dependency of D.C.-C.)
| Decision Date | 14 June 2021 |
| Docket Number | No. 81521-1-I,81521-1-I |
| Parties | In the Matter of the Dependency of D.C.-C. (DOB: 03/19/2015), Minor child. STATE OF WASHINGTON, DEPARTMENT OF CHILDREN, YOUTH AND FAMILIES, Respondent, v. JANAYE MARIE CLAUSEN, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
COBURN, J. — Janaye Clausen appeals the termination of her parental rights to her son, D.C.-C. She argues that the Department of Children, Youth and Families (Department)1 did not carry its burden to prove it provided her withnecessary services or its additional burden under the federal and state Indian Child Welfare Acts, ICWA2 and WICWA.3 Clausen also contends the Department failed to prove that termination was in D.C.-C.'s best interests and the trial court violated separation of powers when it entered an order in the related dependency proceeding directing the Department to file a termination petition. We hold that the unchallenged findings and substantial evidence support termination and the order entered in the dependency proceeding is not properly before us for review. Accordingly, we affirm.
FACTS
D.C.-C., an Indian child,4 was born in March 2015 and was nearly five years old at the time of trial. D.C.-C.'s alleged father is Jared Cra'Po' (the Father), a member of the Nooksack Indian Tribe who also has lineage through the Upper Skagit Tribe. Clausen (hereinafter the Mother) has no known tribal affiliation.
The Mother has a lengthy history of substance abuse and repeated criminal involvement and instability. She began using drugs and alcohol at the age of 12 and considers herself an addict. Her "drug of choice" is opiates, including heroin, and she began using opiates regularly in her early 20s.5 The Mother has two daughters who are older than D.C.-C. and who reside with hermother. According to the Mother, there was at one time an open dependency or custody case involving her daughters, but that case was closed when her mother took custody.
On September 29, 2015, when D.C.-C. was six months old, the Department filed a dependency petition, and D.C.-C. was placed in out-of-home care the same day. According to the petition, the dependency arose out of a July 2015 referral reporting that the Mother was using drugs and selling them out of her apartment. In December 2015, a juvenile court adjudged D.C.-C. dependent as to the Mother, the Father, and any and all putative fathers. The juvenile court found that the Mother's parental deficiencies included "substance abuse, mental health, and a lack of age appropriate parenting skills." In its dispositional order, the juvenile court directed the Mother to comply with the following "service requirements":
According to the dispositional order, both the Nooksack Tribe and the Upper Skagit Tribe were contacted regarding the dependency and "reported that the child is not eligible for enrollment and they do not consider him to be an Indian Child for their purposes and have declined to be further involved in the Dependency." Nevertheless, beginning in November 2015, the Department consulted with the Local Indian Child Welfare Advisory Committee (LICWAC) regarding the case.7
The juvenile court reviewed D.C.-C.'s dependent status nine times over the course of what was ultimately a five-year-long dependency. After its first dependency review hearing in February 2016, the juvenile court found that the Mother was out of compliance with her service requirements and was incarcerated at the Whatcom County Jail. The Mother later testified that she was incarcerated for about 13 months but later released on a DOSA8 sentence. The Mother achieved a period of sobriety while incarcerated, and in June 2017, after the Mother's release, D.C.-C. was returned to the Mother for a trial in-home placement. The termination trial, which was initially set to begin June 2, 2017, was continued to allow this to occur.
Meanwhile, in a February 2017 dependency review order, the juvenile court entered a finding that "[a] termination petition should be filed" and orderedthe Department to file such a petition no later than March 6, 2017. The Department filed a termination petition on February 27, 2017, and the trial court appointed a guardian ad litem (GAL) for D.C.-C.
In November 2017, D.C.-C.'s trial in-home placement ended when the Mother dropped D.C.-C. off with her parents. According to the Mother, she left D.C.-C. with her parents because she did not think she was "necessarily mentally stable" because the Father had gotten into some criminal trouble.9 The Mother then relapsed in December 2017, and according to the GAL's later testimony, the Mother "sort of disappeared for a couple of months" and remained in "relapse mode" until about June 2018, when she was involved in a serious car accident. The trial court continued the termination trial again due to the Mother's accident and because around that time, the Nooksack Tribe intervened in the termination proceeding, declaring that D.C.-C. was an Indian child. The Mother would remain hospitalized or in a physical rehabilitation center until October 2018 and was later charged with driving under the influence in relation to the June 2018 accident.
Meanwhile, in June 2018, D.C.-C. was removed from his grandmother's home after she failed a home study and was placed with the Mother's family friends. However, that placement ended in early 2019, after the family friend reported that she was unable to manage D.C.-C.'s behaviors and that they were beginning to interrupt her work schedule because D.C.-C.'s daycare also wasunable to manage his behaviors. D.C.-C. was then placed with Jordin Cummings, a cousin of the Father. That placement lasted only a month because of D.C.-C.'s behavioral expressions. Specifically, Cummings later testified that D.C.-C. "would have fits that would last an hour or even more" and "in some cases he'd kick my walls and punch and hit." She testified that she came to the decision to request a different placement for D.C.-C. because she had a baby who required a lot of attention, and she thought a placement that could give D.C.-C. more attention would be better for him.
D.C.-C. was then placed in licensed foster care, but that placement ended in July 2019 because the foster, according to a social worker's later testimony, "also reported that [D.C.-C.] had significant behavioral expressions that they could not manage." D.C.-C. was then placed with relatives identified by the Nooksack Tribe, with whom the Department was exploring a potential guardianship. But that placement ended in September 2019, when the relatives asked that D.C.-C. be removed from their care due to his significant behavioral expressions. D.C.-C. then returned to Cummings's home where he remained through the time of the termination trial.
In all, D.C.-C. was in 10 different placements during the dependency, and had behavior problems in every placement change since being removed from the Mother's home following the failed trial in-home placement. But having been in a stable placement with Cummings since September 2019, D.C.-C.'s behavior problems were stabilizing, and his tantrums had decreased in duration from 30 minutes or more to a few minutes.
In the meantime, the Mother maintained a period of sobriety while hospitalized and in rehabilitation after her June 2018 car accident. The GAL later testified that after the Mother's release from physical rehabilitation, the Mother completed a chemical dependency evaluation and began intensive outpatient (IOP) treatment toward the end of 2018. And according to a dependency review order from January 8, 2019, the Mother submitted a clean UA in November and was "compliant with IOP." But the GAL also testified that "by February [the Mother] was missing more and more appointments" and the treatment facility was "calling her noncompliant." The Mother later testified that she relapsed on heroin in February or March of 2019. According to a May 2019 dependency review order, the substance abuse treatment facility submitted non-compliance reports for January, February, and March, and the Mother was a no-show for a number of UAs in January through April.
Meanwhile, in October 2018, Department social worker Thrisa Phillips Jimmy was assigned to D.C.-C.'s case. Phillips Jimmy works for the Department's ICWA unit, and she testified she had received specialized training in working with Native American children. Additionally, Phillips Jimmy is an enrolled member of the Nooksack Tribe. She testified she was familiar with the Nooksack Tribe's prevailing social and cultural standards, and she used that knowledge in working on D.C.-C.'s case. According to Phillips Jimmy's testimony, though the Mother had been attending visitation with D.C.-C. on a regular basis since October 2018, the Mother began showing up late or not showing up at all to visitations in March of 2019. Phillips Jimmy testified furtherthat in her opinion, D.C.-C.'s behavioral expressions were tied to his visitations with the Mother "being either sporadic or nonexistent." She pointed out that D.C.-C. would sometimes be picked up in advance of visitation, "so h...
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