Wash. State Dep't of Soc. & Health Servs. v. Greer (In re Z.J.G.)

Citation448 P.3d 175
Decision Date03 September 2019
Docket Numberconsolidated with No. 78791-8-I,No. 78790-0-I,78790-0-I
CourtWashington Court of Appeals
Parties In the MATTER OF the DEPENDENCY OF Z.J.G. and M.E.J.G., minor children, Washington State Department of Social & Health Services, Respondent, v. Scott James Greer, Appellant.

David Bruce Koch, Dana M. Nelson, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, Jennifer L. Dobson, Attorney at Law, Po Box 15804, Seattle, WA, 98115-0804, for Petitioner.

Ariell Rayko Ikeda, Attorney at Law, Soc. & Hlth. Svcs. A.g. Office, Attorney at Law, Kelly L. Taylor, Ofc. of the Atty. General, 800 5th Ave Ste. 200 Seattle, WA, 98104-3107, for Respondent.

Dependency Casa Program King County, Mrjc-401 4th Avenue N, Suite 3081, Kent, WA, 98032, Kathleen Carney Martin, Dependency CASA Program, 401 4th Ave. N, Rm. 3081, Kent, WA, 98032-4429, for Guardian(s) Ad Litem.

Lauren Grace Esq. Johansen, Attorney at Law, 1401 E Jefferson St. Ste. 200, Seattle, WA, 98122-5570, for Other Parties.

PUBLISHED OPINION

Verellen, J.

¶1 Consistent with the standards of the federal Indian Child Welfare Act of 1978 (ICWA)1 and the Washington State Indian Child Welfare Act (WICWA),2 at the commencement of a 72-hour shelter care hearing, the court is obligated to inquire whether the child is or may be an Indian child. But if the Department of Social and Health Services3 (Department) engages in a good faith investigation into the child’s Indian status, the parties elicit the relevant evidence at the hearing, and the court considers that evidence before ruling on shelter care, then the court substantially complies with the inquiry requirement.

¶2 The application of ICWA and WICWA turns on the definition of an "Indian child." The court has "reason to know" a child is or "may be" an Indian child when the court receives evidence that the child is a tribal member or the child is eligible for tribal membership and a biological parent is a tribal member.4 If there is a reason to know, ICWA and WICWA require the court to treat the child as an Indian child pending a conclusive membership determination by the tribe.5 But a parent’s assertion of Indian heritage, absent other evidence, is not enough to establish a reason to know a child is an Indian child. Either a child or a parent must have a political relationship to a tribe through membership.

¶3 Here, at the time of the shelter care hearing, good faith investigation had not yet revealed evidence a parent or a child was a tribal member. As a result, the court did not err in concluding there was no reason to know the children were Indian children. Of course, the Department was obligated to continue its investigation.

¶4 Even if there is reason to know a child is an Indian child, ICWA’s and WICWA’s heightened requirements of a 10-day notice to the tribe and active efforts to provide services have no application to an imminent harm 72-hour shelter care hearing because it is an emergency proceeding.

¶5 Therefore, we affirm.

FACTS

¶6 On June 27, 2018, Z.G., age 21 months, and M.G., age 2 months, were placed in law enforcement protective custody by the Kent Police Department due to concerns of neglect and unsanitary living conditions.6 Officers noted "[n]o food in the home, a fridge that won’t open, items in disarray, rats coming in and out of the [recreational vehicle]."7

¶7 On June 29, 2018, the Department filed dependency petitions for Z.G. and M.G.8 The dependency petitions recite:

Based upon the following, the petitioner knows or has reason to know the child is an Indian child as defined in RCW 13.38.040 and 25 U.S.C. § 1903(4), and the Federal and Washington State Indian Child Welfare Acts do apply to this proceeding:
Mother has Tlingit-Haida heritage and is eligible for membership with Klawock Cooperative Association. She is also identified as having Cherokee heritage on her paternal side. Father states he may have native heritage with Confederated Tribes of the Umatilla in Oregon.
The petitioner has made the following preliminary efforts to provide notice of this proceeding to all tribes to which the petitioner knows or has reason to know the child may be a member or eligible for membership if the biological parent is also a member:
Inquiry to tribes has been initiated. Worker has called Central Council Tlingit Haida regarding this family and petition. Further inquiry and notification to tribes ongoing.[9]

¶8 The shelter care hearing took place on July 2 and 3, 2018. The father, the mother, and the social worker who signed the dependency petitions testified at the hearing. During direct examination, the State asked the social worker whether the children "qualify" under WICWA.10 The social worker responded, "To my knowledge, not at this time."11 The State asked, "And what investigation have you done?" The social worker responded,

I called the Tlingit and Haida Indian tribes of Alaska, and they gave me information that the maternal grandmother is an enrolled member, but the mother is not enrolled, and the children are not enrolled. And to my knowledge, the father is not enrolled in a federally recognized tribe either.[12 ]

During cross-examination, father’s counsel asked the social worker whether "it’s possible that the children are eligible for tribal membership?" The social worker replied, "Yes, it is."13

¶9 The father testified he had "native heritage with the confederated tribes of the Umatilla in Oregon."14 The father also indicated that it was his "understanding that [Z.G. and M.G.] are eligible for tribal membership."15 The mother testified she and the children were "eligible for American Indian tribal membership" with the Tlingit and Haida tribes.16 She also testified that she was not an enrolled member of a federally recognized tribe.17

¶10 In the written shelter care order, the court determined:

Based upon the following, there is not a reason to know the child is an Indian child .... [M]other and father are not enrolled members in a federally recognized tribe. Maternal grandmother is enrolled member, Department continuing to investigate. Mother believes she’s eligible for tribal membership.[18 ]

The court placed Z.G. and M.G. in licensed foster care.19

¶11 On July 30, 2018, the court granted the Tlingit-Haida tribe’s motion to intervene. On September 18, 2018, the court entered a dependency order as to the father’s parental rights.20 Consistent with the tribe’s intervention, the court determined there was "reason to know" Z.G. and M.G. were Indian children and applied ICWA and WICWA.21

¶12 On January 9, 2019, a commissioner of this court granted the father’s motion for discretionary review of the shelter care order. Although the father’s appeal is technically moot, the commissioner determined the issues were of continuing and substantial public importance.22

ANALYSIS

¶13 A law enforcement officer may take a child into custody without a court order if there is probable cause to believe that the child is abused or neglected and if the child might be injured if it was necessary to first obtain a court order.23 Within 72 hours of removal either by a law enforcement officer or court order, the court must conduct a shelter care hearing.24 The father’s appeal concerns the application of ICWA and WICWA at the 72-hour shelter care hearing.

¶14 Congress enacted ICWA in 1978 to address, the " ‘alarmingly high percentage of Indian families [that] are broken up by [ ] removal’ " by setting minimum procedural and substantive standards.25 Shortly after, the Bureau of Indian Affairs (BIA), an agency within the United States Department of the interior, issued related regulations.26 The BIA also published guidelines "for State courts to use in interpreting many of ICWA’s requirements in Indian child custody proceedings."27

¶15 In 2015, the Department of the Interior engaged in a notice-and-comment process to promulgate formal ICWA requirements after "recognizing the need for [binding] regulations."28 In 2016, the BIA issued those binding regulations and updated the guidelines "to promote the consistent application of ICWA across the United States."29

¶16 In 2011, our legislature enacted WICWA with the express intent to clarify "existing laws" and to promote "practices designed to prevent out-of-home placement of Indian children that is inconsistent with the rights of the parents, the health, safety, or welfare of the children, or the interests of their tribe."30

¶17 ICWA applies "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved."31 Similarly, WICWA applies to "any involuntary child custody proceeding seeking the foster care placement of ... a child in which the petitioning party or the court knows, or has reason to know, that the child is or may be an Indian child as defined in this chapter."32 At various times, the parties appear to suggest there is a tension between the best interests of the child and the interests of the tribe, but the federal guidelines recognize "ICWA was specifically designed by Congress to protect the best interests of Indian children."33 The federal guidelines further explain:

One of the most important ways that ICWA protects the best interests of Indian children is by ensuring that, if possible, children remain with their parents and that, if they are separated, that support for reunification is provided. This is entirely consistent with the "best interests" standard applied in state courts ....
... Congress found that the unfettered subjective application of the "best interests" standard often failed to consider [t]ribal cultural practices or recognize the long-term advantages to children of remaining with their families and [t]ribes.[34]

¶18 The federal guidelines acknowledge the best interests of the child and the interests of the tribe are usually aligned, rather than in conflict. Application of ICWA and WICWA does not sacrifice an Indian child’s safety or well-being to...

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13 cases
  • In re Z.J.G.
    • United States
    • Washington Supreme Court
    • 3 September 2020
    ...care order, finding that the trial court had no "reason to know" the children were Indian children. In re Dependency of Z.J.G. , 10 Wash. App. 2d 446, 450, 448 P.3d 175 (2019). The Court of Appeals reasoned that a trial court has "reason to know" a child is an Indian child when the court "r......
  • Dep't of Children, Youth, & Families v. Greer (In re Dependency of Z.J.G.)
    • United States
    • Washington Supreme Court
    • 3 September 2020
    ...that the trial court had no "reason to know" the children were Indian children. In re Dependency of Z.J.G., 10 Wn. App. 2d 446, 450, 448 P.3d 175 (2019). The Court of Appeals reasoned that a trial court has "reason to know" a child is an Indian child when the court "receives evidence that t......
  • In re G.M.W.
    • United States
    • Washington Court of Appeals
    • 31 October 2022
    ...of that hearing in January 2021, the trial court followed existing precedent, In re the Dependency of Z.J.G., 10 Wn.App. 2d 446, 450, 448 P.3d 175 (2019), reversed on other 196 Wn.2d 152, 471 P.3d 853 (2020), which held that the "active efforts" requirement did not apply at an imminent harm......
  • In re J.M.W.
    • United States
    • Washington Supreme Court
    • 21 July 2022
    ...This appears to be directly contrary to the plain language of the statute and this court's opinion in Z.J.G. Majority at 193 n.4. In Z.J.G. , this court did describe a shelter care hearing as an involuntary child custody proceeding under WICWA. 196 Wash.2d at 173 n.13, 471 P.3d 853 ("There ......
  • Request a trial to view additional results
1 books & journal articles
  • LAWYERING THE INDIAN CHILD WELFARE ACT.
    • United States
    • Michigan Law Review Vol. 120 No. 8, June 2022
    • 1 June 2022
    ...Council of the Tlingit and Haida Indian T ribes of Alaska, backed by several amici, filed a brief), with In re Dependency of Z.J.G., 448 P.3d 175 (Wash. Ct. App. 2019) (affirming a judgment in which no tribe or amicus filed a (255.) E.g., MSULaw Professor Kathryn Fort Argues Indian Child We......

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