|
(Cite
as: 237 P.3d 944) |
Court
of Appeals of Washington,
Division
2.
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.
Aug.
3, 2010.
*948
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,FN1
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).FN2
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) FN3
and ICWA. The parents raise *949
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.
FN1.
We refer to the children and their parents by their initials in order to protect
the children's anonymity.
FN2.
ICWA is codified at 25 U.S.C. ?? 1901-1963. LNB-L and ADB-L each qualify as an
?Indian child? under 25 U.S.C. ? 1903(4) because LNB-L is an enrolled member of
the Nooksack Tribe and ADB-L is eligible for enrollment as a member in the
Nooksack Tribe.
FN3.
After the termination proceedings in this case, the legislature amended RCW
13.34.180 in a manner that does not impact our analysis. See
Laws of 2009, ch. 520, ? 34; Laws of 2009, ch. 475, ? 5. For ease of reference,
we cite to the current version of the statute throughout 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,FN4
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.
FN4.
LNB-L had lost about ten percent of his birth weight. After placement in foster
care, LNB-L began gaining weight.
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;
FN5
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.
FN5.
The Department had received reports that KL used excessive amounts of alcohol in
addition to marijuana, methamphetamine, and cocaine.
?
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.FN6
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.
FN6.
JB-L participated in the same program while pregnant with LNB-L, but the
University removed her from the program because she missed too many
appointments.
?
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.
*950
A. Tribal Membership and Affiliation
?
6 JB-L is an enrolled member of the Nooksack Tribe, a federally recognized
tribe, and the Squamish Nation,FN7
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.FN8
Ex. 1 at 2; Ex. 8 at 2; see
74 Fed.Reg. 40218, 40219 (Aug. 11, 2009).
FN7.
At oral argument, and again in her amended supplemental brief, JB-L asserted
that the Squamish Nation and the Squamish Indian Tribe of the Port Madison
Reservation, a federally recognized tribe, are related or affiliated in some
way. See
74 Fed.Reg. 40218, 40221 (Aug. 11, 2009). Despite the similarity in spelling,
nothing in the record supports JB-L's contention that the tribes are related or
affiliated.
FN8.
Because the record is unclear on this point, we refer to the tribe as the ?Black
Foot? tribe throughout in keeping with KL's description.
?
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.FN9
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.
FN9.
The Nooksack Tribe formally intervened in the dependency of ADB-L on February
22, 2007, and the tribe's counsel appeared telephonically at ADB-L's dependency
hearings.
?
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.FN10
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.
FN10.
At the time of trial, LNB-L and ADB-L were placed together with Native American
foster parents.
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, *951
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,FN11
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.
FN11.
The date that KL received his medical marijuana license is unclear. On October
30, 2008, he testified that he started taking medical marijuana ?two years ago,?
but he later testified that he completed a drug and alcohol evaluation at Right
Choice Counseling before he received the license. RP at 199. According to
Morrigan, KL attended the Right Choice evaluation on August 22, 2007. The record
contains a medical authorization, signed by a physician, allowing KL to possess
marijuana for medical purposes from August 29, 2008 to August 29,
2009.
?
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.? FN12
RP at 713. KL expressed willingness to participate in a harm-reduction program.
Morrigan testified:
FN12.
Clinical psychologist Dr. Michael O'Leary testified that a ?harm-reduction
program? focuses on reducing the negative effects of an intoxicant through
?self-control training, intoxication discrimination training, [and] other means
of helping a person either reduce the frequency or the amount used per
occasion.? RP at 310.
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 address the
safety issues that a parent would have with regard to appropriately parenting
their children while receiving that form of treatment. So that ended
there.
RP
at 713-14. Bill NeSmith, a former Department social worker who worked for KL
during the dependency proceedings, discovered a program in Bellevue that he
believed to be a harm-reduction model.FN13
He provided this information to KL's attorney.
FN13.
When asked if he was familiar with a harm-reduction model, NeSmith replied that
he only had a ?layman's understanding? and that he was ?not a substance abuse
expert.? RP at 1092.
?
16 Although the juvenile court's second dispositional order required KL to
participate in random UAs, he refused because ?[m]y children were not taken for
drugs or alcohol. There's no use for them.? RP at 235. At two of the three
substance abuse evaluations, KL provided urine samples, both of which tested
positive for marijuana and alcohol.
*952
? 17 On two occasions during the dependencies, KL became involved with police
due to extreme intoxication; one incident led to KL's arrest for harassment. KL
stated that he became more assertive when he drank but that he had recently
stopped drinking at the advice of his attorney.
?
18 In January 2006, JB-L completed a drug and alcohol evaluation. The evaluator
found insufficient evidence to establish alcohol abuse or dependence and did not
recommend treatment.
E.
Domestic Violence
?
19 In 2004, KL entered an Alford
FN14
plea to fourth degree assault, domestic violence against JB-L. JB-L has
continuously denied that KL has domestic violence issues. With regard to the
2004 conviction, JB-L explained that KL ?grabbed? her because they were late for
a bus and he wanted her to run. RP at 131. Morrigan witnessed KL publicly,
sometimes in front of the children, yell at and demean JB-L and blame her for
the children's removal from their care.
FN14.
North
Carolina v. Alford,
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
?
20 Police also arrested KL several times on domestic violence charges against
his mother. In 2001, KL entered an Alford
plea to a harassment charge involving his mother and the court entered a no
contact order. In 2005, KL entered an Alford
plea to fourth degree assault, domestic violence against his mother, and the
court entered a no contact order. KL claimed his mother always called the police
on him ?for nothing.? FN15
RP at 207.
FN15.
KL's criminal history also includes two convictions for possession of illegal
drugs. KL denied possessing drugs in either case.
?
21 In September 2006, KL began a domestic violence treatment program to which
the Department had referred him. Julie Elkinton, a licensed mental health
counselor and certified domestic violence treatment provider, led the
Department-certified program. KL attended the program ?fairly regular[ly]? and
did well. RP at 918. Elkinton did not perceive KL to have anger issues and did
not observe him become angry. KL brought JB-L to two or three individual
sessions with Elkinton in order to work on their communication. Elkinton did not
observe any behavior to make her believe that KL would endanger the children.
Elkinton stated, ?I would like to see [KL] have an opportunity to father his
children.? RP at 948.
F.
Mental Health
?
22 On March 29, 2006, before the juvenile court's determination that LNB-L was
dependent, clinical psychologist Dr. Lawrence Majovski performed a psychological
evaluation and parenting assessment of JB-L. Dr. Majovski's evaluation appears
to have served as the basis for some of the court's requirements in the initial
dispositional orders. Dr. Majovski concluded that JB-L had average cognitive
abilities and that she experienced denial, conformity, tension, insecurity, and
inadequacy. Dr. Majovski recommended parenting classes focusing on nurturance,
compliance with regard to her medications, and counseling with regard to
parenting issues and basic living skills.
?
23 Dr. Majovski observed KL and JB-L with LNB-L and noted that KL appeared
controlling and verbose whereas JB-L appeared passive, nurturing, and submissive
to KL. KL appeared affectionate but authoritarian, attempting to express
feelings and thoughts for LNB-L. JB-L presented within the average range on a
parenting stress inventory and parent-child relationship inventory. Dr. Majovski
noted that JB-L was bonded to LNB-L. He concluded that JB-L was a safer parent
for LNB-L and that ?there are no serious concerns that she poses a [risk of]
harm to her son.? Exhibit 48 at 12.
G.
Visitation
?
24 For most of the dependencies, KL and JB-L had two supervised visits per week
for two hours each with the children. JB-L and KL attended nearly every visit,
enduring two-hour bus rides each way to and from visits. The Department provided
the parents with monthly bus passes. KL played *953
with the children and appeared affectionate, singing to them and often telling
them he loved them. JB-L held and comforted the children in her lap, changed
their diapers, brought and prepared food at almost every visit, gave the
children toys, and played with them on the floor. The Department provided JB-L
with a list of the foods that the children were allergic to, but she sometimes
brought foods that the children could not eat. Because neither parent
demonstrated improved parenting skills at the visits, despite attending
parenting classes, the Department provided them with a public health nurse who
could give one-on-one parenting instruction during visits.
?
25 During visits, KL tended to be emotionally volatile and angry. He argued with
JB-L, made inappropriate comments about people, attempted to engage in
activities that were not age-appropriate for the children, and talked to the
children about the case. When KL became volatile, JB-L had little or no
reaction, while the children would stop what they were doing, become extremely
serious, and seek comfort from JB-L or the visit supervisor.
?
26 In June 2008, the Department sought to terminate KL's visits because his
volatility scared the children. LNB-L had started acting out in his foster home
on the days surrounding visits, displaying aggression and escalating
behavior.FN16
The juvenile court terminated KL's visits, and the Department decreased JB-L's
visits to once per week.
FN16.
Guardian Ad Litem (GAL) Jennifer Martin testified that LNB-L's behavior worsened
after he changed foster homes but that, three weeks after contact with his prior
foster care provider ended, LNB-L's aggression occurred only on days surrounding
his visits with KL and JB-L.
II.
Termination
?
27 On February 6, 2008, the Department petitioned for termination. The Nooksack
Tribe appeared through its counsel on the first day of the proceedings and
stated:
I
actually am not available to participate throughout the entire trial. I did file
a motion with the court requesting this partial participation.... What I intend
to do, Your Honor, is to participate in this morning's session so that I can
familiarize myself with the parties-well, refamiliarize myself, hear the
testimony until court adjourns for this morning, and then be available when
Elizabeth Paez, the Nooksack Indian expert, testifies, so that I am available
for testimony during that and then to participate in closing as well, Your
Honor.
RP
at 3. The tribe participated consistent with its counsel's representations,
except that it did not participate in closing argument.
?
28 Morrigan testified extensively on the Department's behalf. Morrigan had
worked as an ICW social worker for about ten years, assisting over 100 Native
American families. She is of Lakota Sioux heritage but is not a tribal member.
She has no specific training or education in Nooksack child-rearing practices,
but she testified that tribes of the Salishan language group, to which the
Nooksack Tribe belongs, had provided her with numerous trainings about
culturally appropriate services. Morrigan observed six visits between the
children and both parents.
?
29 Morrigan testified that KL felt the Department had illegally kidnapped his
children and was not receptive to information regarding the court's orders or
the Department's view of his parental deficiencies. KL participated in a family
preservation assessment, a psychological parenting evaluation with Dr. Majovski,
parenting classes, three mental health evaluations, a domestic violence
evaluation, and domestic violence treatment. KL did not complete the domestic
violence treatment program. KL maintained only sporadic contact with the
Department and refused to sign several necessary releases. Morrigan observed
that during the dependencies, KL either made no progress in correcting his
parenting deficiencies or made further declines in his parenting abilities.
According to Morrigan, the Department had offered KL all services reasonably
available and capable of correcting his parenting deficiencies in the
foreseeable future.
?
30 Morrigan testified that JB-L completed most available services that the
Department required and took additional parenting *954
classes.FN17
JB-L appeared ?quite good at negotiating the network of available social
services.? RP at 764. Over the two years in which JB-L engaged in these
services, however, Morrigan observed minimal progress toward remedying her
parenting deficiencies. Morrigan opined that no other reasonably available
services would be capable of correcting JB-L's parenting deficiencies in the
near future.
FN17.
The Department required JB-L to take a class on protecting children who witness
domestic violence, but the provider cancelled the class before JB-L could
complete it.
?
31 Morrigan concluded that termination was in the children's best interests. She
stated that there was little or no likelihood that KL or JB-L could remedy
conditions in the near future so that the children could be returned to them and
that continuation of the parent-child relationships would diminish the
children's prospects for integration into a stable and permanent home. Morrigan
believed that continued custody of the children by KL or JB-L would likely
result in serious emotional or physical damage to the children because JB-L
could not protect the children and because of untreated substance abuse, mental
health, and domestic violence issues. The possibility of JB-L divorcing KL and
parenting without him came up numerous times during the dependencies, but
Morrigan testified that JB-L would be unable to parent independently. JB-L was
?[un]likely to do well living on her own by herself, much less with children
with their needs.? RP at 768. JB-L would require assistance and support from
other people and a residence where KL could not find her in order to protect
herself and the children from KL. The Guardian Ad Litem (GAL) concurred that
terminating JB-L and KL's parental rights would be in the children's best
interests.
?
32 Paez testified that the Nooksack Tribe also supported termination. She
identified KL and JB-L's parenting deficiencies as untreated mental health
issues in addition to domestic violence and substance abuse in the home. Paez
noted that ?it would be hard for [JB-L] to protect herself and the children from
[KL] and also with his outbursts from his [domestic violence] and his drinking.?
RP at 575. Paez stated that her opinion on substance abuse relied solely on
information the Department provided, and she acknowledged that JB-L never
complained of domestic violence. Paez noted that the tribe made active efforts
to provide services to KL and JBL and concluded that if the children remained in
the parents' custody, they would likely suffer serious emotional or physical
damage because of domestic violence, drinking, and KL's use of medical marijuana
in the home.FN18
FN18.
Paez explained that the children have ?numerous medical problems,? including
asthma. RP at 575.
?
33 Before the proceedings, the Nooksack Tribe passed a resolution that
designated Paez-a member of the tribe and a resident of the Nooksack community
for 40 years-as a qualified expert in state court proceedings involving the
placement of tribal children.FN19
Paez took online training courses on ICWA, and had worked as an ICW case manager
for seven years. During cross-examination, JB-L's counsel repeatedly asked Paez
to explain Nooksack child-rearing practices:
FN19.
Prior to the admission of the tribal resolution into evidence, KL objected to
Paez's testimony that the Nooksack had designated her as an expert. The juvenile
court stated: ?Well, I will permit her to testify about what her understanding
of her certifications are, but reserve ruling on the issue of whether she is
qualified as an expert under ICWA.? RP at 565. Later, after the court reviewed
the tribal resolution, the court stated, ?I'm satisfied that it's within Ms.
Paez's appointment as an expert to testify with respect to the tribe's
conclusions concerning the placement and the future of the children.? RP at
573.
[Counsel]:
As a tribal expert, you have particular knowledge regarding family organization;
is that correct?
[Paez]:
Correct.
[Counsel]:
And could you describe for us what the Nooksack family organization is and how
that would apply to this case?
[Paez]:
I'm not quite sure what you are asking for.
[Counsel]:
Well, the law requires that as a qualified Indian expert that you have
specialized knowledge in tribal customs *955
and how they pertain to family organization. I'm asking you what the Nooksack
tribal family organization would be and how it applies to this
case.
[Paez]:
Uhm, are you asking about the unit, the family unit, or-
[Counsel]:
Well, I'm asking you as an expert, as the qualified Indian expert, what you can
tell us about the Nooksack family organization and tribal customs?
....
[Paez]:
Generally we like to keep the unit, the family unit intact, so long as they're
doing what-the parents are doing what they're supposed to be doing and
participating in the classes that they ... And in order for us, I guess, to ask
for a termination, I have to appear in front of tribal counsel. Is that kind of
answering your question?
[Counsel]:
Well, it seems as if you have answered it to the best of your ability. Is that
right?
[Paez]:
Right. Because I'm real confused as to it.
[Counsel]:
Okay. What can you tell us about Nooksack tribal child rearing
practices?
[Paez]:
Regarding to termination?
[Counsel]:
No. As an Indian-As a qualified Indian expert, your area of expertise, you are
supposed to be able to describe or be knowledgeable in the tribal child rearing
practices. I'm asking what you can tell us about those tribal rearing
practices.
[Paez]:
I mean, other than keeping the families intact and there being a mother and a
father with the children in a healthy, safe environment, I'm very confused on
your question.
RP
at 580-82.
?
34 The State objected to this line of questioning, asserting that an Indian
expert did not necessarily need to know ?the specific child rearing practices of
a specific tribe.? RP at 582. The juvenile court responded:
Okay.
Well, it's appropriate cross-examination to question the expertise of the
expert. I'm going to let [JB-L's counsel] continue with her examination and
overrule the objection.
At
some point we may also address, as there's a formal objection, the question of
whether Ms. Paez qualifies as an ICWA expert. But let's finish all of her
testimony before we get there.
RP
at 584. The parties never re-addressed Paez's designation as an expert witness.
The Nooksack Tribe's counsel subsequently attempted to rehabilitate
Paez.
?
35 Clinical psychologist Dr. Michael O'Leary testified for the Department. Dr.
O'Leary conducted a forensic review that focused on ascertaining uniformity
among the various case reports. Dr. O'Leary never met either parents. Based on
visitation notes, Dr. O'Leary stated that KL was overbearing, irritable,
belligerent, demeaning, and had unrealistic expectations of the children's level
of comprehension, which would put the children's safety at risk. Dr. O'Leary
noted that a chemical dependency professional diagnosed KL with bipolar
disorder, which could increase the children's risk for mood disorders,
maladjustment, and behavior problems. Dr. O'Leary questioned whether KL actually
had seizures or just a ?pseudoseizure disorder,? and Dr. O'Leary opined that
KL's marijuana use might prevent him from controlling his impulses or safely
supervising the children. RP at 257. But Dr. O'Leary noted that, if KL did have
a seizure disorder and failed to treat it, he could present a risk of harm to
the children.
?
36 Regarding JB-L, Dr. O'Leary was primarily concerned about her passivity and
her inability to safely protect the children from KL. He stated that passivity
is not necessarily damaging to a child, and he agreed that JB-L was able to
direct and provide structure to her children.
?
37 Dr. O'Leary concluded that neither KL nor JB-L, together or singly, could
safely parent the children. He believed there was no likelihood that KL and JB-L
could remedy their parenting deficiencies in the near future. He stated that
continuation of their parent-child relationships would seriously harm the
children. Dr. O'Leary concluded that KL and JB-L would not benefit from
additional services. Dr. O'Leary believed*956
that KL would physically and mentally abuse the children on a daily basis and
that JB-L would be unable to prevent it.
?
38 NeSmith, a child welfare social worker in private practice who had previously
worked for the Department for over 21 years, testified as part of KL's case.
NeSmith spent about 150 hours in face-to-face contact with JB-L and KL,
including attending 15 to 17 visits with the children. NeSmith observed that
both JB-L and KL ?met the cues of the children,? made good eye contact, got down
onto the floor to play, changed diapers, and always came prepared with food and
drink for the children. RP at 1038. NeSmith observed that the children were
bonded with their parents and never seemed scared of their parents. NeSmith
testified that JB-L told him that KL was not violent with her. NeSmith visited
JB-L and KL's home six to seven times and noted that it was ?pretty clean.? RP
at 1079.
?
39 After an eight-day trial, the juvenile court terminated KL and JB-L's
parental rights as to both children. KL and JB-L appealed.
?
40 A commissioner of this court heard oral argument on an accelerated basis
pursuant to RAP 18.13A. The commissioner referred this matter to a full panel of
judges.
ANALYSIS
I.
Notice to Indian Tribes
?
41 JB-L contends that the Department should have notified the Squamish Nation of
the termination proceedings. In a supplemental brief, KL argues that the
Department was required to ?provide notice of the termination proceedings to all
potentially interested tribes, including the Squamish.? Supp. Br. of Appellant
KL at 3. We conclude that ICWA and state law required the Department to notify
the Cherokee and Black Foot FN20
tribes-but not the Squamish Nation-of the termination proceedings. Because the
Department failed to notify the Cherokee and Black Foot tribes, we remand for
proper notice to these two tribes.
FN20.
As we noted, there is insufficient evidence in the record to demonstrate that
the ?Black Foot out of the Algonquin Nation? refers to the federally-recognized
Blackfeet Tribe of the Blackfeet Indian Reservation of Montana. RP at 538.
Because the identity of this tribe is not clear from the record, the Department
should, on remand, notify the Portland Area Director of the Bureau of Indian
Affairs (BIA) of the termination orders in the manner prescribed by 25 C.F.R. ?
23.11. See
RCW 13.34.070(10)(a). If the BIA cannot identify this tribe, or if this tribe,
as well as the Cherokee, declines to intervene, the termination orders will
stand.
[1][2][3]
? 42 When interpreting a statute, our primary goal is to effectuate legislative
intent. City
of Seattle v. St. John,
166 Wash.2d 941, 945, 215 P.3d 194 (2009) (citing In
re Custody of Shields,
157 Wash.2d 126, 140, 136 P.3d 117 (2006)). Where the statute's meaning is plain
and unambiguous, we derive legislative intent from the statute's plain language.
St.
John,
166 Wash.2d at 945, 215 P.3d 194. We discern the plain meaning from ?all that
the Legislature has said in the statute and related statutes which disclose
legislative intent about the provision in question.? Dep't
of Ecology v. Campbell & Gwinn, L.L.C.,
146 Wash.2d 1, 11, 43 P.3d 4 (2002).
[4]
? 43 The parents' argument that ICWA required the Department to notify the
Squamish Nation of the termination proceedings fails because the Squamish Nation
is not a federally recognized tribe. Under ICWA, the Department must
notifyFN21
?the Indian child's tribe? of pending termination proceedings and the tribe's
right to intervene ?where the court knows or has reason to know that
*957
an Indian child is involved.? 25 U.S.C. ? 1912(a). An ?Indian child's tribe?
is:
FN21.
Congress enacted ICWA to ?protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal of Indian children
from their families.? 25 U.S.C. ? 1902. Notice ensures that a tribe will be
afforded the opportunity to assert its rights under ICWA. In
re Welfare of M.S.S.,
86 Wash.App. 127, 134, 936 P.2d 36 (1997) (citing In
re Kahlen W.,
233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 511 (1991)). Under ICWA, the Indian
child's tribe may intervene at any point in termination proceedings involving
the child in state court. 25 U.S.C. ? 1911(c). The Indian child's tribe may also
request transfer of the termination proceedings to tribal court. 25 U.S.C. ?
1911(b).
(a)
the Indian tribe in which an Indian child is a member or eligible for membership
or (b) in the case of an Indian child who is a member of or eligible for
membership in more than one tribe, the Indian tribe with which the Indian child
has the more significant contacts.
25
U.S.C. ? 1903(5). An ?Indian tribe? is further defined as ?any Indian tribe,
band, nation, or other organized group or community of Indians recognized
as eligible for the services provided to Indians by the Secretary [of the
Interior]
because of their status as Indians....? 25 U.S.C. ? 1903(8) (emphasis added).
Thus, these statutory definitions make clear that an ?Indian child's tribe? must
be federally recognized in order to be entitled to ? 1912(a) notice. Because the
Squamish Nation is not a federally recognized tribe, ? 1912(a) did not require
the Department to notify the Squamish Nation of the termination proceedings.
See
74 Fed.Reg. 40,218, 40,221 (Aug. 11, 2009).
[5]
? 44 In contrast, the Cherokee tribe is a federally recognized tribe, and the
?Black Foot? tribe may refer to the federally-recognized Blackfeet Tribe of the
Blackfeet Indian Reservation of Montana. See
74 Fed.Reg. 40218, 40219 (Aug. 11, 2009). Because the Department stated in
LNB-L's dependency petition that KL was affiliated with the ?Cherokee/
[6]
? 45 After oral argument in this case, we requested supplemental briefing on the
application of the notice provisions in RCW 13.34.070(10)(a). The legislature
originally enacted these notice provisions in 1979, one year after Congress
enacted ICWA. Former RCW 13.34.070(9) (Laws of 1979, ch. 155, ? 40). The
original notice provisions applied only to Indian children who were Indian
tribal members, but the legislature subsequently expanded the provisions to
include eligible members as well. Former RCW 13.34.070(10) (Laws of 2000, ch.
122, ? 8); former RCW 13.34.070(9). In 2004, the legislature again amended the
statute, which now reads:
(a)
Whenever the court or the petitioning party in a proceeding under this chapter
knows or has reason to know that an Indian child is involved, the petitioning
party shall promptly provide notice to ... the agent designated by the child's
Indian tribe to receive such notices.... If
the child may be a member of more than one tribe, the petitioning party shall
send notice to all tribes the petitioner has reason to know may be affiliated
with the child.
(b)
The notice shall: (i) Contain a statement notifying ... the tribe of the pending
proceeding; and (ii) notify the tribe of the tribe's right to intervene
and/
RCW
13.34.070(10) (emphasis added); Laws of 2004, ch. 64, ? 4. The legislature's
addition of the italicized language directed the Department, for the first time,
to notify multiple tribes of dependency and termination proceedings if more than
one tribe was ?affiliated? with the child.
?
46 In an earlier withdrawn opinion, we concluded that the ?all tribes? language
in RCW 13.34.070(10)(a) referred not only to federally recognized tribes, but
also to non-federally recognized tribes, like the Squamish. After further
consideration, we conclude that the legislature did not intend to expand ICWA's
notice requirements to non-federally recognized tribes.FN22
FN22.
Participating Judge Houghton's last day with the court is Friday, July 30, 2010,
leaving us without time to solicit and obtain a response to the Department's
motion for reconsideration.
?
47 RCW 13.34.070(10)(a) only applies when the court or a petitioning party knows
or has reason to know that an ?Indian child? is involved. Although that section
of the statute does not define ?Indian child,? several other sections of chapter
13.34 RCW explicitly adopt ICWA's definition of ?Indian child.? Thus, any party
that files a dependency petition must state in the petition ?whether the child
is or may be an Indian child as defined in 25 U.S.C. Sec. 1903.? RCW
13.34.040(3); see
also
RCW *958
13.34.030(16) (stating that, for an ?Indian child as defined in 25 U.S.C. Sec.
1903(4),? the term ?sibling? is defined according to tribal law or custom); RCW
13.34.065(4)(h) FN23
(requiring the juvenile court to inquire into ?[w]hether the child is or may be
an Indian child as defined in 25 U.S.C. Sec. 1903? at the shelter care
hearing).FN24
FN23.
RCW 13.34.065(4)(h) also requires the juvenile court, at the shelter care
hearing, to inquire into ?whether the provisions of [ICWA] apply, and whether
there is compliance with [ICWA], including notice to the child's
tribe.?
FN24.
The legislature recently added another reference to ICWA's definition of ?Indian
child:?
The
court may not order an Indian child, as defined in 25 U.S.C. Sec. 1903, to be
removed from his or her home unless the court finds, by clear and convincing
evidence including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.
RCW
13.34.130(1)(b); Laws of 2010, ch. 288, ? 1.
?
48 ICWA defines ?Indian child? as ?any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an
Indian tribe.? 25 U.S.C. ? 1903(4). As we noted above, ICWA's definition of
?Indian tribe? includes only federally recognized tribes. See
25 U.S.C. ? 1903(8).
?
49 Thus, the plain language of RCW 13.34.070(10)(a) reveals the legislature's
intent to limit notice to proceedings that involve an ?Indian child? while
related statutes in chapter 13.34 RCW disclose the legislature's intent to adopt
ICWA's definition of ?Indian child.? Because an ?Indian child? must be a member
of, or eligible for membership in, a federally recognized tribe, we conclude
that the legislature intended the term ?tribe? in RCW 13.34.070(10)(a) to mean
?federally recognized tribe.? Accordingly, the Department had no duty under RCW
13.34.070(10)(a) to notify the Squamish Nation, a non-federally recognized
tribe, of the termination proceedings. FN25
FN25.
We note that our legislature's 2004 amendment, which directs a petitioning party
to notify all of the tribes affiliated with an Indian child, is consistent with
the Bureau of Indian Affairs's (BIA) non-binding guidelines for state courts in
Indian child custody proceedings. Subsection (b) of guideline B.5 states, ?In
any involuntary Indian child custody proceeding, notice of the proceeding shall
be sent to ... any
tribes that may be the Indian child's tribe.?
Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. at
67584, 67588 (Nov. 26, 1979).
?
50 We remand this case to the juvenile court so that the Department may notify
the Cherokee and Black Foot tribes of the termination proceedings. Because these
tribes may choose not to intervene, we address the parents' other contentions in
the remainder of this opinion. We find that the record supports the termination
orders and that the parents' remaining claims fail. Thus, on remand, the
termination orders will stand unless either of the two tribes intervenes, in
which case the juvenile court shall hold further proceedings consistent with
this decision.
II.
Other ICWA Claims
?
51 ICWA requires the Department to show, as a prerequisite to termination, that
?active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.? 25 U.S.C. ? 1912(d). Also, the juvenile court
may not order termination under ICWA absent ?evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of
the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.? 25 U.S.C. ? 1912(f). JB-L and KL
assert that the Department has failed to meet its burden with regard to these
ICWA provisions, and they assign error to the related findings and conclusions.
We reject their arguments.
A.
Standard of Review
[7][8][9][10]
? 52 When reviewing a termination order, we uphold a juvenile court's findings
of fact if the findings are supported by substantial evidence from which a
rational trier of fact could find the necessary facts by *959
clear, cogent and convincing evidence.FN26
In
re Dependency of K.S.C.,
137 Wash.2d 918, 925, 976 P.2d 113 (1999). Clear, cogent and convincing evidence
exists when the ultimate fact at issue is ?highly probable.? K.S.C.,
137 Wash.2d at 925, 976 P.2d 113. Substantial evidence is evidence that would
persuade a fair-minded rational person of the truth of the declared premise.
In
re Welfare of C.B.,
134 Wash.App. 942, 953, 143 P.3d 846 (2006). Deference to the juvenile court is
particularly important in termination proceedings, and we defer to the fact
finder on issues of witness credibility and the persuasiveness of the evidence.
K.S.C.,
137 Wash.2d at 925, 976 P.2d 113; In
re Dependency of A.V.D.,
62 Wash.App. 562, 568, 815 P.2d 277 (1991).
FN26.
JB-L and KL each assign error to conclusion of law III, which states the
Department's burden of persuasion: ?all the allegations contained in the
termination petition, as provided in RCW 13.34.180(1)(a) through (f), have been
established by clear, cogent and convincing evidence.? Clerk's Papers (CP) at
141, 317. As the standard of review articulated in K.S.C.
makes clear, we inherently review whether the Department met its burden of
persuasion as part of our review of the juvenile court's findings. 137 Wash.2d
at 925, 976 P.2d 113. Accordingly, we do not separately address the parents'
challenge to conclusion of law III.
[11][12][13][14]
? 53 Unchallenged findings are verities on appeal. In
re Interest of Mahaney,
146 Wash.2d 878, 895, 51 P.3d 776 (2002). We review conclusions of law that are
mistakenly characterized as findings of fact de novo.FN27
In
re Disciplinary Proceeding Against VanDerbeek,
153 Wash.2d 64, 73 n. 5, 101 P.3d 88 (2004). An appellant waives an assignment
of error when she presents no argument in support of the assigned error.
Cowiche
Canyon Conservancy v. Bosley,
118 Wash.2d 801, 809, 828 P.2d 549 (1992).
FN27.
Many of the juvenile court's findings are actually mixed findings of fact and
conclusions of law. Because ?a conclusion of law is a conclusion of law wherever
it appears,? we review the conclusions of law in such mixed findings de novo.
Robel
v. Roundup Corp.,
148 Wash.2d 35, 43, 59 P.3d 611 (2002) (quoting Kane
v. Klos,
50 Wash.2d 778, 788, 314 P.2d 672 (1957)). We review the factual aspects of such
mixed findings for substantial evidence. See
K.S.C.,
137 Wash.2d at 925, 976 P.2d 113.
B.
Findings of Fact
1.
Finding XIII
?
54 JB-L assigns error to finding XIII: FN28
?Notice of this termination fact-finding was provided by certified mail to the
NOOKSACK Indian Tribe at least ten days before the hearing. The NOOKSACK Indian
Tribe exercised their right to intervene in this proceeding.? Clerk's Papers
(CP) at 139, 315.
FN28.
The trial court entered separate findings of fact and conclusions of law for
each child. Because the findings and conclusions are nearly identical, we refer
to them in the singular.
[15]
? 55 Although the record is unclear as to whether the Department provided the
Nooksack Tribe with proper notice, substantial evidence supports the fact that
the Nooksack Tribe intervened in the proceedings. The Nooksack's counsel
appeared telephonically during trial. He cross-examined JB-L, objected during
KL's cross-examination of Paez, and attempted to rehabilitate Paez after the
parents challenged her expert qualifications. Near the end of the proceedings,
he informed the court that the tribe supported the termination petition. The
Nooksack's intervention precludes the need for strict compliance with notice
provisions and dispenses with JB-L's argument. See
In
re Welfare of M.S.S.,
86 Wash.App. 127, 134, 936 P.2d 36 (1997) (?[f]ailure to provide the required
notice mandates remand unless the tribe has participated in the proceedings or
expressly indicated that it has no interest in the proceedings.?)
2.
Finding XIV
?
56 Both JB-L and KL assign error to finding XIV, which states: ?Continued
custody of the child by [JB-L] and [KL] is likely to result in serious emotional
or physical damage to the child. This finding is supported by the testimony of
LIZ PAEZ and HUNTER MORRIGAN, qualified expert witnesses under [ICWA].? CP at
139-40, 315-16. KL also argues that the State's expert testimony on ?serious
emotional or physical damage? was predicated in significant part on evidence of
?poverty, inadequate housing, alcohol abuse, [and] non-conforming social
behavior.? Br. of Appellant KL at 3; *960
see
Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. at
67584, 67593 (Nov. 26, 1979) (stating that such evidence ?does not constitute
clear and convincing evidence that continued custody is likely to result in
serious emotional or physical damage to the child.?).
A.
Qualified Expert Witnesses
[16]
? 57 JB-L and KL assert that Paez and MorriganFN29
were not qualified expert witnesses under ICWA because they did not possess any
specialized knowledge or understanding of Squamish or Nooksack culture. This
argument fails.
FN29.
KL also argues, correctly in our view, that Dr. O'Leary probably should not be
considered a qualified expert under ICWA. The record indicates merely that Dr.
O'Leary had performed ?a number? of evaluations of Indian parents and had
written articles about alcohol abuse in Native American communities. RP at
333.
[17][18][19]
? 58 A ?qualified expert witness? must have expertise beyond the normal social
worker qualifications. In
re Matter of Roberts,
46 Wash.App. 748, 755, 732 P.2d 528 (1987). ICWA does not require testimony from
more than one qualified expert. Mahaney,
146 Wash.2d at 897, 51 P.3d 776 (quoting Roberts,
46 Wash.App. at 755, 732 P.2d 528). Experts are generally qualified through ?
?special knowledge of and sensitivity to Indian culture.? ? Mahaney,
146 Wash.2d at 897, 51 P.3d 776 (quoting State
ex rel. Juvenile Dep't of Multnomah County v. Cooke,
88 Or.App. 176, 744 P.2d 596, 597 (1987)). The Bureau of Indian Affairs (BIA)
has issued non-binding guidelinesFN30
for state courts in Indian child custody proceedings, which include three
categories of individuals who are most likely to meet ICWA's ?qualified expert
witness? requirement:
FN30.
While these guidelines do not have ?binding legislative effect,? we have relied
on them for guidance. See,
e.g., In
re Dependency of T.L.G.,
126 Wash.App. 181, 188 n. 10, 108 P.3d 156 (2005) (quoting 44 Fed.Reg.
67584).
(i)
A member of the Indian child's tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to family organization and
childrearing practices.
(ii)
A lay expert witness having substantial experience in the delivery of child and
family services to Indians, and extensive knowledge of prevailing social and
cultural standards and childrearing practices within the Indian child's
tribe.
(iii)
A professional person having substantial education and experience in the area of
his or her specialty.
44
Fed.Reg. at 67593. Our Supreme Court has noted that ?ICWA has been interpreted
to allow some latitude where experts are concerned.? Mahaney,
146 Wash.2d at 897, 51 P.3d 776. Because the purpose of the ICWA qualified
expert witness provision is to protect against cultural bias, ?[w]hen expert
testimony is offered that does not inject cultural bias or subjectivity, courts
have held that no ?special knowledge of Indian life? is required.? Mahaney,
146 Wash.2d at 897, 51 P.3d 776 (quoting State
ex rel. Juvenile Dep't of Lane County v. Tucker,
76 Or.App. 673, 710 P.2d 793, 799 (1985)).
?
59 Despite Paez's difficulty describing a Nooksack family unit, she qualifies as
an expert under subsection (i) of the BIA guidelines. Paez is a Nooksack tribal
member and the tribe explicitly designated her as an expert ?qualified in the
placement of tribal children? in state proceedings. Ex. 47. The tribe's official
designation of Paez as an expert is sufficient to establish her expertise.
Additionally, Paez, a 40-year resident of the tribal community, has worked with
over 75 Indian families in the social services setting, has served as ICW case
manager for 7 years, and has received training on ICWA. See
In
re Welfare of Fisher,
31 Wash.App. 550, 553, 643 P.2d 887 (1982) (finding that the trial court did not
abuse its discretion by determining that a caseworker supervisor in Seattle
Indian Center's foster care program was a qualified expert under
ICWA).
[20]
? 60 Morrigan also qualifies as an expert under the more flexible subsection
(iii) of the BIA guidelines. Morrigan has been a social worker for 13 years,
having worked with over 100 Indian families in her 10 years in the ICW division.
Although she has no particular training or education in Nooksack *961
child-rearing practices,FN31
her extensive professional experience with regard to Indian child welfare issues
is sufficient for her to be deemed a qualified expert witness. See
In
re Interest of M.S.,
624 N.W.2d 678, 685 (N.D.2001) (stating that county social worker assigned to
mother's case qualified as an ICWA expert where she testified that she was
?familiar with Indian customs, traditions, and culture? and where the tribe did
not oppose termination).
FN31.
KL cites two cases to support his view that a qualified expert witness must be
familiar with the child-rearing practices of a particular tribe. One case
clearly does not support KL's assertion, stating, ?[w]e do not hold that an
expert ICWA witness qualified under subpart three of the Guidelines must be
fluent in the cultural standards of a particular Indian tribe.? In
re Matter of K.H.,
294 Mont. 466, 981 P.2d 1190, 1197 (1999). The other case supports KL's argument
but Washington courts have not adopted it. See
People
ex. rel. M.H.,
691 N.W.2d 622, 627 n. 6 (S.D.2005) (stating ?it is not too much to require an
ICWA expert to be familiar with the child's tribe.?).
?
61 JB-L relies extensively on State
ex rel. Juvenile Department of Multnomah County v. Charles
FN32
to challenge Paez and Morrigan's qualifications. In Charles,
the court stated that the expert requirement was not met when two experienced
social workers without ?specialized knowledge of social or cultural aspects of
Indian life? testified for the State in support of foster care placement. 688
P.2d at 1360. That situation differs significantly from the case at hand. Here,
the Nooksack Tribe explicitly designated Paez as having the relevant ICWA
expertise in child custody proceedings. Moreover, both Paez and Morrigan, unlike
the social workers in Charles,
have extensive experience in the field of Indian child welfare. Charles
does not support the parents' contentions that Paez and Morrigan lacked the
necessary expertise.
FN32.
70 Or.App. 10, 688 P.2d 1354 (1984).
B.
Serious Emotional and Physical Damage
[21]
? 62 We reject KL's argument that the State's expert testimony on ?serious
emotional or physical damage? was predicated in significant part on evidence of
?poverty, inadequate housing, alcohol abuse, [and] non-conforming social
behavior.? Br. of Appellant KL at 3. Rather, the State presented evidence that
KL's continued custody would result in serious emotional or physical damage to
LNB-L and ADB-L. Morrigan and Dr. O'Leary specifically testified that
continuation of KL's parental relationship would seriously harm the children.
Dr. O'Leary explained that KL was belligerent and demeaning and that his
unrealistic expectations about his children's development would put his
children's safety at risk. Morrigan noted that KL had not addressed his mental
health issues, which included a mood disorder, and possibly bipolar disorder.
Although there was evidence of KL's affection toward the children, his
volatility and angry outbursts at visitations scared the children and led to
LNB-L acting out. Substantial evidence supported this finding.
3.
Finding XV
?
63 Both parents assign error to finding XV, which pertains to 25 U.S.C. ?
1912(d) and states:
Active
efforts were made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and these efforts have been
unsuccessful. Active efforts included multiple attempts to engage the parents in
services, referrals to culturally appropriate services, direct efforts by the
Nooksack Tribe to engage the parents in services, transportation assistance,
housing assistance, and casework services.
CP
at 140, 316.
[22]
? 64 Substantial evidence supports this finding. As previously discussed, the
Department provided the parents with numerous services, including psychological,
parenting and substance abuse evaluations, parenting classes, mental health
counseling, skills training, financial assistance, a public health nurse, and
transportation. Additionally, the Department referred the parents to culturally
appropriate mental health services at the parents' request. The Department, in
*962
short, complied with section 1912(d)'s ?active efforts? requirement.FN33
FN33.
As Division One of this court has noted, the remedial services requirements of
RCW 13.34.180(1)(d) and (e) ?place[ ] a more strenuous burden on the State than
does ? 1912(d).? In
re Dependency of A.M.,
106 Wash.App. 123, 134, 22 P.3d 828 (2001). As we discuss later in this opinion,
substantial evidence also supports the findings that establish the elements of
RCW 13.34.180(1)(d) and (e).
C.
Conclusions of Law
?
65 Both JB-L and KL challenge conclusion of law IV, which addresses 25 U.S.C. ?
1912(f), and which states ?[t]hat it has been overwhelmingly proven beyond a
reasonable doubt that continued custody of the child by [JB-L] and [KL] is
likely to result in serious emotional or physical damage to the child.? CP at
141, 317.
?
66 We find that the Department met its high burden of persuasion under ICWA with
respect to both parents. After an extensive record review, Dr. O'Leary believed
that KL would physically or mentally abuse his children on a daily basis.
Morrigan's and Paez's testimony focused on substance abuse, mental health, and
domestic violence as likely sources of harm to the children if the parents were
to regain custody. Though these issues pertained largely to KL's parental
deficiencies, the findings also support the conclusion that JB-L could not
adequately parent the children or protect them from KL.
III.
Claims Under Chapter 13.34 RCW
?
67 Under state law, a juvenile court may terminate parental rights if the State
proves the six elements of RCW 13.34.180(1) by clear, cogent, and convincing
evidence, and if termination is in the child's best interests. RCW
13.34.190(1)(a), (2). JB-L and KL argue that termination is not in their
children's best interests and that substantial evidence does not support the
juvenile court's findings that the State proved three of the six statutory
elements of RCW 13.34.180(1)-namely, subsections (d), (e) and (f) FN34-by
clear, cogent, and convincing evidence.
FN34.
JB-L and KL do not assign error to findings of fact IV and V, which establish
each of the elements of RCW 13.34.180(1)(a), (b) and (c). Nor do they assign
error to finding of fact VI, which establishes the elements in the first clause
of RCW 13.34.180(1)(d) that ?services ordered under RCW 13.34.136 have been
expressly and understandably offered or provided.? As discussed later, both JB-L
and KL assign error to finding of fact VIII, which pertains to the second clause
of RCW 13.34.180(1)(d).
?
68 JB-L and KL each assign error to findings of fact VIII, IX, X, and XVI. JB-L
separately challenges finding of fact VII. JB-L also asserts that (1) the
Department failed to establish that she suffered from ?parental deficiencies,?
(2) the termination statute violates substantive due process, and (3) the
Department must prove that termination is in the child's best interests by
clear, cogent and convincing evidence, rather than by a preponderance of the
evidence. Br. of Appellant JB-L at 51. We reject each of these
claims.
A.
Findings of Fact
1.
Finding VII
[23]
? 69 JB-L assigns error to finding VII, which states: ?The parents have failed
to effectively avail themselves of the services ordered pursuant to the
aforesaid dependency orders. During the entire time period relevant to these
proceedings, the aforementioned services were available if the parents had
chosen to avail themselves of such services.? CP at 138, 314. JB-L only disputes
the first sentence of this finding, arguing that she ?complied with the plan and
all of the listed services.? Br. of Appellant JB-L at 51. Substantial evidence
supports this finding as it relates to JB-L's dependent and passive personality
traits and her inability to adequately protect the health, safety, and welfare
of her children.
?
70 JB-L completed all required assessments, including the parenting and
substance abuse assessments. JB-L completed her mental health assessment-albeit
a year after she had been ordered to do so-and she delayed counseling until
February 2008. At the time of trial, JB-L was taking her prescribed liver
medication, although she had sometimes been unable to afford her medication.
During most of the dependency, she *963
maintained safe and clean housing, although she was homeless at the time of
trial. The public health nurse attended JB-L's supervised visits every Thursday
for the two years prior to termination. JB-L participated in a four-session
independent living skills training workshop. She attended some of the classes in
the ?Parenting Children who have witnessed Domestic Violence? program, but she
did not complete the course. RP at 674.
?
71 While JB-L did much of what the Department asked her to do, she was either
unwilling or unable to use the services to sufficiently improve her ability to
raise and protect her children. The purpose of the services was to assist JB-L
to learn to protect the health, safety, and welfare of her children. Morrigan,
Paez, and Dr. O'Leary all stated that JB-L, even after receiving extensive
counseling and parenting services, could not safely parent her children.
Morrigan believed that JBL did not have the interest, willingness, or ability to
make needed changes. Paez noted that ?it would be hard for [JB-L] to protect
herself and the children from [KL].? RP at 575. Dr. O'Leary concluded that JB-L
could not protect her children's safety, even if she separated from KL, and he
concluded that she would not benefit from additional services. Therefore,
substantial evidence supports the finding that JB-L's availment of the
Department's services was not effective because it did not improve her ability
to raise and protect her children.
2.
Finding VIII
?
72 Both JB-L and KL assign error to finding VIII, which addresses the second
sentence of RCW 13.34.180(1)(d). The finding states: ?All necessary services
reasonably available, capable of correcting the parental deficiencies within the
foreseeable future, have been offered or provided. A harm reduction substance
abuse program is not a service that is readily or reasonably available and would
not be of assistance because father does not believe that his substance abuse
issues interfere with his parenting abilities.? CP at 138, 314.
[24]
? 73 Substantial evidence exists that the Department offered both JB-L and KL
all necessary services to correct their parental deficiencies. The Department
provided JB-L with numerous services, including a psychological evaluation, a
parenting evaluation, parenting classes, mental health counseling, in-home
independent skills training, housing assistance, and a public health nurse. The
Department provided KL with all of these services in addition to substance abuse
evaluations and domestic violence counseling. The Department paid for services
if reimbursement was not possible and provided the parents free bus and taxi
transportation to and from services.
?
74 KL argues that a harm reduction treatment program in Bellevue was reasonably
available and capable of correcting his parental deficiencies. KL's initial
chemical dependency evaluators recommended inpatient treatment and intensive
outpatient treatment, but KL was unwilling to use those services. A parent's
unwillingness or inability to make use of the services provided excuses the
State from offering extra services that might have been helpful. In
re Dependency of A.M.,
106 Wash.App. 123, 136, 22 P.3d 828 (2001) (quoting In
re Dependency of P.D.,
58 Wash.App. 18, 26, 792 P.2d 159 (1990)). Only after KL failed to access
available inpatient or outpatient treatment did he receive a recommendation for
harm reduction treatment. Although KL now takes issue with the abstinence-based
approaches of the inpatient and outpatient programs-given his reliance on
medical marijuana to treat various medical conditions-it is unclear from the
record how long he has relied on medical marijuana for treatment. KL's
unwillingness or inability to access the services that the Department offered
made providing treatment to him difficult. Furthermore, the Department did not
simply ignore KL's request but, instead, it made efforts to locate a
State-certified harm reduction program, which it was unable to do. Finally, it
is unclear whether the Bellevue program comported with the recommendations of
KL's final substance abuse evaluation. Thus, substantial evidence supports the
juvenile court's finding that harm reduction treatment was not reasonably
available.
*964
3. Finding IX
?
75 Both JB-L and KL assign error to finding IX, which addresses RCW
13.34.180(1)(e). The finding states, in relevant part:
There
is little likelihood that conditions will be remedied so that the above-named
child can be returned to either parent in the near future. With regards to
[JB-L], her dependent and passive personality style renders her incapable of
protecting herself or her children. She has done nothing to adjust her life
throughout the entire dependency. She cannot protect her children and is unable
to address their medical needs.
CP
at 138, 314.
?
76 KL also assigns error to the portion of the finding that reads: With regard
to [KL], he has failed to address any of his deficiencies. CP at 138,
314.
[25]
? 77 Substantial evidence supports the finding that KL failed to address his
parental deficiencies, which Morrigan identified as untreated substance abuse,
untreated mental health issues, domestic violence and a related criminal
history, and an inability to live independently. While KL followed through with
some of the provided services and ?did well? in the domestic violence program,
he ignored the treatment recommendations of multiple substance abuse evaluators,
failed to receive treatment for mental health issues, continued to engage in
actions resulting in police involvement, took no responsibility for past crimes
including domestic violence convictions, and exhibited unrealistic expectations
with regard to his children, which put their safety at risk. RP at 922. We
uphold this finding.
?
78 We also find substantial evidence supporting the finding that JB-L has failed
to remedy her parental deficiencies. Morrigan, Dr. O'Leary, and Paez all
testified that the children would suffer serious emotional or physical harm if
placed with their parents. The three also testified about JBL's passivity and
her inability to protect the children, particularly from KL.
4.
Finding X
?
79 Both JB-L and KL assign error to finding X, which addresses RCW
13.34.180(1)(f), and which states: ?Continuance of the parent-child relationship
clearly diminishes the child's prospects for integration into a stable and
permanent home. This child has never resided with the parents and has been in
foster care since he was three days old.? FN35
CP at 139, 315. KL bases his challenge on the fact that ?the parents engaged in
and benefited from services.? Br. of Appellant KL at 4. But as we explained
above, substantial evidence supports findings that the parents did not
effectively avail themselves of the Department's services in order to correct
their parental deficiencies. KL's argument fails.
FN35.
LNB-L was three weeks-not three days-old when the Department removed him from
his parents' custody. Thus, substantial evidence does not support this portion
of the finding with regard to LNB-L.
[26]
? 80 JB-L does not appear to challenge the factual basis for this finding but,
rather, she argues that the juvenile court misinterpreted the terms
?integration? and ?relationship? as used in RCW 13.34.180(1)(f). Br. of
Appellant JB-L at 35. Because JB-L did not raise this error at trial, we decline
to address it for the first time on appeal. RAP 2.5(a). In any case, the
challenged language simply reflects the reality that continuing an inadequate
parent-child relationship interferes with the creation of a new, stable, and
permanent home for the child.
5.
Finding XVI
?
81 Both JB-L and KL assign error to finding XVI,FN36
which addresses RCW 13.34.190(2), and states: ?An order terminating all parental
rights is in the best interests of the aforesaid minor child.? RCW 13.34.190(2)
authorizes the juvenile court to enter an order terminating all parental rights
*965
only if the court finds that termination is in the child's best
interests.
FN36.
JB-L and KL each assign error to conclusion of law II, which states that
termination would be in the children's best interests. We address the parents'
challenge to both finding XVI and to conclusion of law II in this
section.
[27][28]
? 82 A ?best interests of the child? finding depends on the facts and
circumstances of each case and a preponderance of the evidence must support it.
In
re Welfare of Aschauer,
93 Wash.2d 689, 695, 611 P.2d 1245 (1980); see
also In
re Welfare of A.J.R.,
78 Wash.App. 222, 228, 896 P.2d 1298 (1995). We place ?very strong reliance? on
the juvenile court's determination of what would be in the child's best
interests. In
re Interest of Pawling,
101 Wash.2d 392, 401, 679 P.2d 916 (1984) (quoting In
re Welfare of Todd,
68 Wash.2d 587, 591, 414 P.2d 605 (1966)).
?
83 JB-L appears to challenge only the Department's burden of persuasion with
regard to the children's best interests; she does not appear to challenge the
finding itself. JB-L argues that the juvenile court's ?best interests? finding
must be supported by clear, cogent and convincing evidence, rather than by a
preponderance of the evidence. We exercise our discretion to address this issue
even though JB-L did not raise this error in the juvenile court. RAP
2.5(a).
[29]
? 84 In Santosky
v. Kramer,
the United States Supreme Court held that the Due Process Clause of the
Fourteenth Amendment requires states to support allegations of parental
unfitness by ?at least clear and convincing evidence? before terminating
parental rights. 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
Notably, the Santosky
Court did not mandate that states use a particular standard of proof when
applying a ?best interests? test to the issue of termination after the State has
proven parental unfitness. Because the Department must support its allegations
of parental unfitness by proving each of the six elements of RCW 13.34.180 by
clear, cogent, and convincing evidence-just as Santosky
required-Washington's termination statute passes constitutional
scrutiny.
[30]
? 85 KL argues that his bond with his children, in light of ICWA's mandate to
preserve the integrity of the Indian family, indicates that termination was not
in the children's best interests. However, ICWA's applicability does not mean
that ICWA replaces state law with regard to a child's best interests.
See
Mahaney,
146 Wash.2d at 893, 51 P.3d 776 (discussing ICWA's guidelines in the context of
a nonparental custody action). Rather, ?[w]ell-established principles for
deciding custody matters should further [ICWA's] goals.? Mahaney,
146 Wash.2d at 893, 51 P.3d 776.
[31]
? 86 Although KL appeared bonded to the children, he also acted emotionally
volatile, angry, and inappropriate during visits with his children, to the point
that he scared them. KL failed to engage in required chemical dependency
services, continuously blamed JB-L for the children being taken, and, over the
two years of dependency, either made no progress in correcting his parenting
deficiencies or made further declines in his parenting abilities. Morrigan,
Paez, and the GAL testified that the children's best interests warranted
termination of KL's parent-child relationship. In light of these facts and
circumstances, substantial evidence supports the juvenile court's finding that
termination was in the children's best interests.
B.
Substantive Due Process
?
87 JB-L argues that Washington's termination statute violates substantive due
process by interfering with her fundamental liberty interests as a parent. She
concedes the State's interest in preventing harm to children, but she argues
that the statute is unconstitutional because it does not require the juvenile
court to reject all less restrictive alternatives-such as a temporary
continuation of the dependency, dependency guardianship, third-party custody,
return home or open adoption-before terminating parental rights. We reject these
arguments.
[32][33]
? 88 We review a challenge to a statute's constitutionality de novo.
In
re Parentage of C.A.M.A.,
154 Wash.2d 52, 57, 109 P.3d 405 (2005). A statute is presumed constitutional,
and the party challenging it has the burden of proving beyond a reasonable doubt
that it is unconstitutional. In
re *966
Det. of C.W.,
147 Wash.2d 259, 277, 53 P.3d 979 (2002).
[34][35]
? 89 A parent has a fundamental liberty interest in the care and custody of her
children. In
re Dependency of J.H.,
117 Wash.2d 460, 473, 815 P.2d 1380 (1991). The State may only interfere with
this interest if it ?has a compelling interest and such interference is narrowly
drawn to meet only the compelling state interest involved.? C.A.M.A.,
154 Wash.2d at 57, 109 P.3d 405 (quoting In
re Custody of Smith,
137 Wash.2d 1, 13, 15, 969 P.2d 21 (1998)). The ?best interest of the child?
standard is not a compelling state interest that overrules a parent's
fundamental right to raise her children. Smith,
137 Wash.2d at 20, 969 P.2d 21. The State may only interfere with a parent's
protected right to raise her children where the State seeks to prevent harm or
risk of harm to the child. Smith,
137 Wash.2d at 18, 969 P.2d 21.
[36][37]
? 90 Every division of this court has rejected similar arguments that the
termination statute violates a parent's fundamental liberty interest in the care
and custody of her children. In
re Welfare of M.R.H.,
145 Wash.App. 10, 31, 188 P.3d 510 (2008), review
denied,
165 Wash.2d 1009, 198 P.3d 512 (2008), cert.
denied,
--- U.S. ----, 129 S.Ct. 1682, 173 L.Ed.2d 1046 (2009); In
re Dependency of T.C.C.B.,
138 Wash.App. 791, 798-99, 158 P.3d 1251 (2007); C.B.,
134 Wash.App. at 346, 139 P.3d 1119; In
re Dependency of I.J.S.,
128 Wash.App. 108, 118, 120, 114 P.3d 1215 (2005). This court's rationale in
I.J.S.
is representative: ?the termination statutes are narrowly drawn because the
State must prove that the relationship with the parents harms or potentially
harms the child before the court can terminate parental rights.? FN37
I.J.S.,
128 Wash.App. at 118, 114 P.3d 1215; accord
M.R.H.,
145 Wash.App. at 31, 188 P.3d 510; C.B.
134 Wash.App. at 345, 139 P.3d 1119. JB-L asks us to reconsider these decisions
based on her novel statutory argument with regard to finding X which, as we
noted above, she failed to preserve. We decline to do so.
FN37.
Proof of harm or risk of harm is implicit in RCW 13.34.180(1) because subsection
(a) requires the State to show that the child is ?dependent,? meaning that the
child has been abandoned, abused, neglected, or finds himself in circumstances
that constitute a danger of substantial damage to his physical or psychological
development. C.B.,
134 Wash.App. at 345, 139 P.3d 1119.
?
91 We affirm the juvenile court's termination orders because substantial
evidence supports the juvenile court's findings. These findings in turn support
the juvenile court's conclusions that the parents' continued custody of LNB-L
and ADB-L would result in serious emotional or physical damage to them such that
termination is in the children's best interests. We remand to the juvenile court
so that the Department may notify the Cherokee and Black Foot tribes of the
termination proceedings. If either of these tribes chooses to become involved,
the juvenile court shall hold further proceedings consistent with this decision.
If neither of these tribes chooses to become involved, the termination orders
will stand.
We
concur: VAN DEREN, J., and HOUGHTON, J.P.T.